DAHYABHAI B PILVAIKAR Versus JOINT REGISTRAR (AUDIT)
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1. Special Civil Application No. 10742 & 10743 of 2000 MR RAVINDRA SHAH for Petitioner No. 1-17 Mr.I.M.Pandya, Ld.AGP for Respondent No. 1-2
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CORAM : MR.JUSTICE JAYANT PATEL Date of Order: 02/04/2002 ORAL(COMMON)ORDER These petitions are preferred against the judgment and order, dated 8.9.2000 passed by the Gujarat State Cooperative Tribunal ("the Tribunal" for short) in Revision Application Nos 39 & 44 of 2000 whereby the tribunal partly allowed the revisions applications and quashed the chargesheet issued by the Inquiry Officer dated 23.2.2000 and further observed that the Inquiry Officer is directed to issue fresh chargesheet after giving fresh show cause notice and after following the directions of the tribunal.
2.Heard Mr.Ravindra Shah for the petitioners and Mr.I.M.Pandya, Ld.AGP for the respondents.
3.Mr.Shah for the petitioners submits that the petitioners are challenging the order of the tribunal so far as it relates to not quashing the order for holding inquiry under section 93 of the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as "the Act"). Mr.Shah submits that they are not challenging the order of the tribunal so far as it relates to quashing the chargesheet issued by the Inquiry Officer. Mr.Shah submits that the tribunal has committed jurisdictional error and in furtherance to his submission, he has submitted that the tribunal once having found that the order passed by the Joint Registrar ordering inquiry under section 93 of the Act is defective the tribunal could not have observed that the same is only a procedural lapse. Mr.Shah also submitted that the tribunal once having found that the order is defective the tribunal ought to have allowed the revision. Mr.Shah submitted that the tribunal has not considered that the order passed by the Joint Registrar, Audit is by a different officer than the officer who heard the earlier show cause notice under section 93 of the Act.
4.Mr.I.M.Pandya, Ld.AGP appearing for the respondents supported the order passed by the tribunal.
5.Having heard both sides, I am of the view that the scope of judicial scrutiny under section 226/227 of the Constitution against the order passed by the Tribunal is very limited and this court is not exercising appellate powers over the jurisdiction of the tribunal.
6.If the facts are considered, then the incident in question is of 1996-97. On 5.4.97 a show cause notice was issued by the officer concerned calling upon the petitioner as to why the inquiry under section 93 of the Act should not be held. Reply to the show cause notice was submitted on 22.4.97. However, it is the case of the petitioner that after the reply was submitted, for about two years nothing happened and, all of a sudden, the order dated 12.4.99 came to be passed by the Joint Registrar (Audit) whereby the inquiry is ordered to be held under section 93 of the Act. Pursuant to the order, dated 12.4.99 a chargesheet was issued on 23.2.2000 by the Inquiry Officer calling upon the persons concerned to submit their defence as to why the liability should not be fastened upon them. Against the chargesheet revision was preferred by the petitioner. The petitioner, incidentally, also challenged the decision dated 12.4.99 passed by the Joint Registrar (Audit) whereby the inquiry was ordered to be held. It is required to be noted that the whole case is at a stage of holding inquiry and the petitioners and the persons concerned will have their right of defence at the time when the inquiry is held. If at the evidence it transpires that they have misapplied the funds of the bank, then only question of fastening liability would arise. At this stage, the question is required to be considered is that whether the inquiry should be ordered to be shut down upon allowing to raise such contentions or not. The tribunal has on page 57 has observed as under:
"We, therefore, hold that the reliance on audit report under section 84 is compulsory but the defect in the order is procedural and bonafide and the order is not visited by not mentioning the same."
Further, the tribunal on internal page 7 of the order observed as under:
"We hold that the order of the learned Joint Registrar, Audit, is also defective on this count. This defect is legal defect and not procedural defect, however, from the preamble of the order it appears that both the issues are directed against the decision of the Board of Directors and therefore the Board of Directors at the relevant period is indicated indirectly for examining the conduct of the Directors of the Board in question and the liability of those Directors are required to be investigated and fixed.".
Further, the tribunal on internal page 10 of its order has observed as under:
"However, at this stage of revision the merits of the issues can not be looked into and decided finally."
Further, the tribunal on internal page 11 of its order has observed as under:
"It is open to the parties agitating before the Investigating Officer for justifying the legal expenses as per the same submissions or any other submissions."
The whole final order of the tribunal goes to show that the tribunal found that there is no material or serious lapse or defect against the order dated 12.4.99 passed by the Joint Registrar (Audit) for holding inquiry under section 93 of the Act and when the inquiry is yet to be held by the concerned officer and when the parties will have right to defend, the said order for holding inquiry should not be interfered with. When the whole matter is examined by the tribunal after recording reasons, I am of the view that the tribunal is perfectly justified in exercising judicial discretion and the same is not required to be interfered by this court in its writ jurisdiction at this stage, more particularly, in view of the fact that when the chargesheet is issued by the officer concerned, and the petitioner and other persons will have legal right of defence available to them and no prejudice is likely to be caused at this stage.
7.As regards submission of Mr.Shah regarding for breach of principles of natural justice is concerned, I am afraid that such contention can be accepted because at the stage of taking decision as to whether the inquiry should be ordered or not no full-fledged investigation is required nor elaborate principles of natural justice are required to be observed. Show cause notice was given which was replied and the concerned officer after taking into consideration the reply has passed the order and therefore it can not be said that there is any breach of principles of natural justice. In any event, the officers of the Cooperative Bank who are holding responsible position can not foreclose the initiation of inquiry only on the ground that if they face inquiry the liability may be fastened on them and therefore a challenge is made at the rootlevel against the initiation of inquiry and as a consequence thereof they may not be required to face the inquiry at all. If such wide principles of natural justice are read at a stage of ordering inquiry, then nobody would be answerable to the public post and more particularly when the society deals in business of banking operations and the intention of the legislature of section 93 of the Act would be frustrated. On the contrary, if the inquiry is held the functioning of the office bearers will be examined by an independent authority and after considering the defence and available material, the final order can be passed and therefore there is no reason to interfere with the order passed by the authority for holding inquiry under section 93 of the Act. The tribunal has, therefore, rightly not interfered with the order in exercise of its judicial discretion and therefore this court would not like to interfere with the judicial discretion exercised by the tribunal.
8.Mr.Shah relied upon the judgment of this court in the matter of Shree Ram Packaging vs Union of India reported in 90(2) GLH 343 to contend that since the officer who heard the show cause notice in the year 1997 was different and the subsequent officer could not have passed the order dated 12.4.99 and that too without giving any opportunity of hearing. I am of the view that no serious prejudice is caused in initiating the inquiry, more particularly, when the reply to show cause notice was also submitted and is considered the petitioner would have all defence at the inquiry under section 93 of the Act. Further, the facts and circumstances of the aforesaid case of Shree Ram Packaging can not be equated with the present case since inquiry is yet to be held under section 93 of the Act.
9.Before parting with the matters, it is clarified that it will be open to the inquiry officer to take up the matter for holding inquiry as early as possible and to conduct the same within a period of six months from the date of receipt of writ of this court.
10.Under the circumstances, there is no substance in these petitions and therefore both the petitions are dismissed with no order as to costs. Interim relief granted earlier stands vacated.
11.At this stage, Mr.Shah appearing for the petitioners prays that the operation of this order may be stayed for some time so that the petitioners may approach the higher forum. Considering the facts and circumstances of the case, and since the inquiry is sufficiently delayed and is yet to be held, said request of Mr.Shah for staying the operation of this order is rejected.
2.4.2002(JAYANT PATEL,J)