2017(1) ALL MR 810
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

A. S. CHANDURKAR, J.

The Agricultural Produce Market Committee Vs. Shri Vijay Govindrao Bakre & Ors.

Writ Petition No.1102 of 2009

3rd August, 2016.

Petitioner Counsel: Shri ANJAN DE
Respondent Counsel: Shri D.V. SIRAS, Shri K.L. DHARMADHIKARI

Maharashtra Agricultural Produce Marketing (Development and Regulation) Rules (1967), Rr.104, 102 - Appeal under Rule 104 - Maintainability - Market Committee sought recovery of excess amount paid under transport allowances to respondent - Respondent preferred appeal u/S.104 by treating said action of recovery as penalty under R.102 - However, neither reading of recovery order indicates that recovery was by way of penalty nor was same intended to be so by Committee - It was simple case of recovering excess amount paid - Appeal, not maintainable. (Para 6)

JUDGMENT

JUDGMENT :- The petitioner takes exception to the order dated 10.12.2008 passed by the Divisional Joint Registrar, Cooperative Societies Nagpur in the appeal preferred by the respondent no.1 under provisions of Rule 104 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 (for short, the said Rules).

2. The facts giving rise to the present writ petition are that the respondent no.1 was serving as Secretary at the petitioner - Market Committee. According to the petitioner, he was paid transport allowance @ Rs.1000/- per month to which, according to the petitioner, he was not entitled. On 10.4.2007, the Market Committee passed resolution no.4(a) thereby resolving to recover the amount of transport allowance that was received in excess by the respondent no.1. Another resolution bearing No.4(b) was passed on the same day for recovering advance amount paid to the respondent no.1 from his provident fund account. In view of aforesaid resolutions, the Market Committee on 13.4.2007 passed an order directing the excess amounts paid to be set off against his leave encashment. On that basis a demand of Rs.1,25,394/- came to be made from the respondent no.1. The respondent no.1 being aggrieved by the aforesaid demand preferred an appeal under Rule 104 of the said Rules by treating the action of recovery as a penalty imposed by the respondent no.1. On behalf of the petitioner the stand was taken that no penalty had been imposed on the respondent no.1 and it was only for recovery of excess amounts paid that such demand had been made. By the impugned order, the Divisional Joint Registrar allowed the appeal and set aside resolution nos.4(a) & 4(b) passed by the Market Committee on 10.4.2007.

3. Shri Anjan De, the learned Counsel for the petitioner submitted that the Divisional Joint Registrar was not justified in entertaining the appeal filed by the respondent no.1. He submitted that the resolution dated 10.4.2007 only sought to recover the excess payment made to the respondent no.1 by way of transport allowance. It was the case of the Marketing Committee that the respondent no.1 was not entitled for transport allowance. As the said amounts had been paid in excess, they were sought to be recovered. He referred to the provisions of Rule 102 of the said Rules and submitted that only if any penalty specified in Rule 102 was imposed that the same could be challenged by way of an appeal under Rule 104 of the said Rules. He, therefore, submitted that the respondent no.1 had wrongly invoked the remedy of filing an appeal.

Without prejudice to the aforesaid, it was submitted that the Market Committee was justified in seeking recovery of the excess amounts paid to the respondent no.1. According to him, the relevant Rules in that regard had been amended by the Market Committee in its meeting held on 16.5.1985 and hence, the respondent no.1 was not entitled to retain the excess amounts paid.

4. Shri D.V. Siras, the learned Counsel for the respondent no.1 supported the impugned order. According to him, the Market Committee had sought to recover the amounts in question from the respondent no.1 in an illegal and malafide manner. He referred to the provisions of Rule 102 (iv) of the said Rules to justify maintainability of the appeal. He referred to the memorandum of appeal preferred by the respondent no.1 under Rule 104 of the said Rules and justified the entitlement of the respondent no.1 to receive the transport allowance. He then submitted that the resolution dated 16.5.1985 would not preclude the respondent no.1 from receiving transport allowance. He thus submitted that there was no merit in the writ petition.

Shri K.L. Dharmadhikari, the learned Assistant Government Pleader appearing for the respondent nos.2 and 3.

5. I have heard the respective Counsel for the parties at length and I have given due consideration to the respective submissions. Resolution No.4(a) which relates to recovery of transport allowance received by the respondent no.1 from 1.11.1997 onwards records the fact that the respondent no.1 was in fact not entitled to receive such transport allowance. Resolution no.4(b) refers to advance amount of provident fund received by the respondent no.1. A careful reading of resolution no.4(a) does not indicate that the recovery of transport allowance said to be paid in excess to the respondent no.1 was by way of imposition of penalty. Rule 102 (iv) of the said Rules which was relied upon by the learned Counsel for the respondent no.1 in support of his contentions read thus:

102. Penalties.

"(iv) recovery from pay of the whole or part of any pecuniary loss caused to market Committee by negligence or breach of orders."

The penalty contemplated is with regard to recovering any pecuniary loss caused to the Market Committee by negligence or breach of orders. It contemplates imposition of such penalty on any Officer or servant of the Market Committee if on account of his negligence or on account of breach of orders any pecuniary loss has been caused to the Market Committee. Against an order imposing such penalty the provision of appeal under Rule 104 of the said Rules has been provided.

6. In the reply filed on behalf of the petitioner to the appeal preferred by the respondent no.1 a clear stand has been taken that the action of recovery by way of set off only in respect of amounts wrongly paid by the Market Committee to the respondent no.1. It was further stated that no penal action was being taken against the respondent no.1 and the action was only for recovery of excess amounts paid to the respondent no.1. In fact, it was stated that the respondent no.1 could not be said to have committed any negligence or breach of orders of the Market Committee. The Divisional Joint Registrar, however, proceeded to observe that a show cause notice had been issued to the respondent no.1 in the year 2002. As the Market Committee had declared availment of transport allowance by the respondent no.1 to be illegal, the same amounted to a penalty under Rule 102 of the said Rules. This view taken by the respondent no.2 cannot be accepted. Neither reading of resolution no.4(a) dated 10.4.2007 indicates that the recovery was by way of penalty nor was the same intended to be so by the Market Committee. It was a simple case of recovering the excess amount paid to the respondent no.1. It is, therefore, clear that the appeal preferred by the respondent no.1 under Rule 104 of the said Rules was not maintainable.

In so far as resolution no.4(b) is concerned, the appellate Authority has observed that the same has been rendered infructuous due to superannuation of the respondent no.1. Hence, no orders in that regard are necessary.

7. As a sequel to the aforesaid discussion, the following order is passed:

(1) The order dated 10.12.2008 passed by the Divisional Joint Registrar, Cooperative Societies, Nagpur is quashed and set aside.

(2) It would be open for the respondent no.1 to challenge the resolutions dated 10.4.2007 as well as order dated 13.4.2007 passed by the Market Committee in accordance with law. In case such remedy is sought to be availed, the same shall be entertained on merits as the proceedings under the said Act and the present writ petition were pending since the year 2009.

(3) The respective contentions of the parties on the merits of the grievance are kept open.

(4) Rule is made absolute in aforesaid terms with no order as to costs.

Ordered accordingly.