Case Note & Summary
The petitioner, the Agricultural Produce Market Committee, Hinganghat, challenged an order dated 10-12-2008 passed by the Divisional Joint Registrar, Cooperative Societies, Nagpur, which allowed an appeal filed by the respondent no.1, Vijay Govindrao Bakre, a retired Secretary of the Committee. The respondent no.1 had been paid transport allowance of Rs.1000 per month, which the Committee later determined he was not entitled to. On 10-4-2007, the Committee passed resolution no.4(a) to recover the excess transport allowance and resolution no.4(b) to recover an advance amount from his provident fund. On 13-4-2007, the Committee ordered the excess amounts to be set off against his leave encashment, resulting in a demand of Rs.1,25,394. The respondent no.1 appealed under Rule 104 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967, treating the recovery as a penalty. The petitioner contended that no penalty was imposed and the demand was merely for recovery of excess payments. The Divisional Joint Registrar allowed the appeal and set aside the resolutions. The High Court examined whether the recovery order was appealable under Rule 104. The Court noted that Rule 104 provides an appeal only against a penalty imposed by the Market Committee. Since the resolutions and the subsequent order did not impose any penalty but only sought recovery of excess amounts paid, the appeal was not maintainable. The Court held that the appellate authority exceeded its jurisdiction by entertaining the appeal. Consequently, the impugned order was quashed and set aside, and the writ petition was allowed. The Court clarified that it did not express any opinion on the merits of the recovery.
Headnote
A) Agricultural Produce Marketing - Appeal - Rule 104 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 - The issue was whether a recovery order for excess transport allowance paid to a Secretary of the Market Committee is appealable under Rule 104. The Court held that Rule 104 provides an appeal only against a penalty imposed by the Market Committee, and since the recovery order did not impose any penalty, the appeal was not maintainable. The Divisional Joint Registrar erred in entertaining the appeal and setting aside the resolutions for recovery. (Paras 1-8)
B) Agricultural Produce Marketing - Recovery of Excess Payment - Rule 104 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 - The Market Committee passed resolutions to recover excess transport allowance and advance amounts paid to the Secretary. The Secretary appealed under Rule 104 treating the recovery as a penalty. The Court held that recovery of excess payment without imposing a penalty is not a penalty under the Rules, and therefore the appeal was not maintainable. The impugned order was quashed. (Paras 2-8)
Issue of Consideration
Whether an order for recovery of excess payment made to an employee without imposing any penalty is appealable under Rule 104 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967.
Final Decision
The writ petition is allowed. The impugned order dated 10-12-2008 passed by the Divisional Joint Registrar, Cooperative Societies, Nagpur is quashed and set aside. The appeal filed by respondent no.1 under Rule 104 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 is held not maintainable. No order as to costs.
Law Points
- Rule 104 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules
- 1967 provides an appeal only against a penalty imposed by the Market Committee
- not against a mere order of recovery of excess payment
- recovery of excess payment without imposing a penalty is not a penalty under the Rules
- the appellate authority exceeded its jurisdiction by entertaining an appeal against a recovery order.
Case Details
2016 LawText (BOM) (08) 178
WRIT PETITION NO.1102 OF 2009
Shri Anjan De for petitioner, Shri D. V. Siras for respondent no.1, Shri K. L. Dharmadhikari for respondent nos.2 & 3
The Agricultural Produce Market Committee, Hinganghat through its Secretary
Shri Vijay Govindrao Bakre, Divisional Joint Registrar, Co-operative Society, Nagpur, The State of Maharashtra
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Nature of Litigation
Writ petition challenging the order of the Divisional Joint Registrar allowing an appeal under Rule 104 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 against recovery of excess transport allowance.
Remedy Sought
The petitioner (Market Committee) sought quashing of the appellate order dated 10-12-2008 and restoration of its resolutions for recovery.
Filing Reason
The respondent no.1 (retired Secretary) was paid transport allowance of Rs.1000 per month which the Committee later considered excess; the Committee passed resolutions to recover the excess amount and an advance, and ordered set off against leave encashment, leading to a demand of Rs.1,25,394.
Previous Decisions
The Divisional Joint Registrar allowed the appeal and set aside resolution nos.4(a) and 4(b) passed by the Market Committee on 10-4-2007.
Issues
Whether an order for recovery of excess payment made to an employee without imposing any penalty is appealable under Rule 104 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967.
Submissions/Arguments
Petitioner argued that no penalty was imposed on respondent no.1; it was only a recovery of excess amounts paid, hence no appeal lay under Rule 104.
Respondent no.1 contended that the recovery order amounted to a penalty and was appealable under Rule 104.
Ratio Decidendi
Rule 104 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 provides an appeal only against a penalty imposed by the Market Committee. An order for recovery of excess payment without imposing any penalty is not a penalty under the Rules, and therefore no appeal lies against such an order. The appellate authority exceeded its jurisdiction by entertaining the appeal.
Judgment Excerpts
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.
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.
Rule 104 of the said Rules provides for an appeal against a penalty imposed by the Market Committee. Since the resolutions passed by the petitioner did not impose any penalty on the respondent no.1, the appeal under Rule 104 was not maintainable.
The appellate authority exceeded its jurisdiction in entertaining the appeal and setting aside the resolutions.
Procedural History
The Market Committee passed resolutions on 10-4-2007 to recover excess transport allowance and advance amount from respondent no.1. On 13-4-2007, the Committee ordered set off against leave encashment, raising a demand of Rs.1,25,394. Respondent no.1 appealed under Rule 104 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967. The Divisional Joint Registrar allowed the appeal on 10-12-2008, setting aside the resolutions. The Market Committee filed the present writ petition on 27-2-2009 challenging the appellate order.
Acts & Sections
- Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967: Rule 104
