B. P. Dharmadhikari, J. - (1.) Heard Shri Mohta, learned counsel for the petitioner, Shri. Mishra, learned counsel for respondent Nos. 1 and 2 and Smt. Bodade, learned AGP for respondent No. 4. Nobody appears for respondent No. 3, though served.
(2.) The grievance made by Shri. Mohta, learned counsel for the petitioner is that the enquiry under Section 88 of the Maharashtra co-operative Societies Act, 1960, was ordered and was conducted by Respondent No. 3. After respondent No. 3 submitted his report in that enquiry, holding Respondent Nos. 1 and 2 guilty of misconduct and ordering recovery from them, Respondent Nos. 1 and 2 filed appeal under section 152 of Maharashtra Co-operative societies Act, 1960, (hereinafter referred to as the Act) , before Respondent No. 4-Maharashtra state Co-operative Appellate Court. He contends that such appeal was not tenable and it was premature inasmuch as no formal order as contemplated by S. 88 of the Act was passed by any officer of the Co-operative department ordering such recovery. He invites attention of the Court to the subsequent order dated 1- 10-1992 passed by the Assistant Registrar of co-operative Societies, in which again recovery has been directed. He contends that because of this, occasion to file appeal accrued in favour of Respondent Nos. 1 and 2 only after 1-10-1992 and not before that. It is his contention that therefore the Co-operative Appellate Court could not have taken cognizance of such appeal. He further states that said objection was once again raised before the Co-operative appellate Court but the same has been rejected by it. He, therefore, requests this Court to quash and set aside the order of Co-operative appellate Court.
(3.) Shri. Mishra, learned counsel for respondent Nos. 1 and 2 has argued that the Co-operative appellate Court has considered this challenge in detail. He states that Respondent no. 3 was admittedly appointed as Enquiry officer under S. 88 of the Act and the report submitted by him is itself an order. According to him, no separate order is required to be passed under S. 88 of the Act to fastened any liability on present respondent Nos. 1 and 2. He argues that the moment such enquiry report is submitted, the liability is fasten and Respondent nos. 1 and 2 therefore got right to file appeal before the Co-operative Appellate Court. He further states that the Co-operative Appellate court has found that Respondent No. 3 has not conducted enquiry properly and thus respondents did not get opportunity to defend themselves in the matter. Therefore, the Co-operative appellate Court has remanded matter back for fresh enquiry into the charges by appointing some other officer to conduct such enquiry. He states that the order in this respect cannot be interfered with in writ jurisdiction.;