Judgment · High Court

Heard Mr. H.R.A. Choudhury, learned senior counsel appearing for the pet itioner. Also heard Mr. P. Roy, learned Government Advocate who appears for the respondents 1 to 4. None appears for the respondent No.5. The petitioner was elected for a term of 3 years as the chairman of the Pub Chamaria Gaon Panchayat Samabay Samity Ltd. (hereinafter referred to as the Society) in the Annual General Meeting held on 28.6.06. He has approached this C ourt to challenge the resolution passed in the meeting dated 24.1.08 of the Exec utive Committee of the Society, whereby he has been removed from the chairmanshi p of the society. The petitioner also challenges the order dated 28.5.08 passed by the Registrar of the Cooperative Societies (hereinafter referred to as the RO C), whereby in the context of the aforesaid resolution dated 24.1.08, the ROC ha s ordered in substance, the suspension of the petitioner from the chairmanship, to facilitate the inquiry in to the allegation of mis-management of the society’ s funds by the petitioner.

By the ROC’s order the vice-chairman of the society h as been allowed to function as the chairman of the society. Mr. H.R.A. Choudhury challenges the order of the ROC by contending that the power to remove an elected chairman of the Cooperative Society vests under S ection 39 B(2) of the Assam Cooperative Societies Act, 1949 (hereinafter referre d to as the Act) only on the Government and the ROC has no power to suspend an e lected chairman. It is also contended by the petitioner that although the basis of the re solution of the Executive Committee and the Registrar’s order is an inconclusive inquiry on the allegations against the petitioner, the said inquiry has remaine d inconclusive even after 1‰ years of the resolution dated 24.1.08. The learned counsel further contends that the petitioner has not been afforded a ny opportunity to rebut the charges levelled against him in course of the inquir y which is going on since last 1‰ years.

Accordingly he submits that even if an adverse conclusion is reached, no action against the petitioner can be taken eit her for his suspension or removal, on the basis of such so called inquiry. Mr. P. Roy, learned Government Advocate on the other hand submits that t he ROC did not suo moto order the suspension of the petitioner and therefore ref erence to the powers of suspension vested under Section 39 B(2) of the Act on th e Government is not all relevant. He further submits that what the ROC has done by his impugned order dated 28.5.08 is in the context of the resolution passed b y the Executive Committee of the Society for removal of the chairman and the ROC instead of approving the resolution of removal, has passed the order of suspens ion, in the interest of a fair inquiry as continuance of the petitioner in the p ost of chairman would enable the petitioner to have access to the society’s reco rds, which might be subjected to tampering.

The learned Government counsel also refers to the provisions of Rule 26 of the Assam Cooperative Societies Rules, 1953, (hereinafter referred to as (cid:28)the Rules (cid:29)) and submits that proceedings of the meetings of the society are required to be submitted to the ROC and unless the ROC approves the resolution, the decision taken in such meeting would not become operational. I find that resolution for removal of the petitioner was taken on the al legation that the petitioner has mismanaged the funds of the society. It appears from the endorsement of the Assistant Registrar of the Cooperative Societies as well as from the order of the ROC that an inquiry into the said allegation has been instituted. However information is not available as to what is the final co nclusion of the said inquiry. The petitioner’s allegation that he has not been afforded any opportunit y in the enquiry to rebut the charges levelled against him has also not been res ponded to by any of the respondents.

The 3 year tenure of the petitioner as a chairman is scheduled to end on 28.6.20 09. But learned Government Advocate informs that by a Notification dated 28.5.09 issued by the Secretary to the Government of Assam, Cooperation Department, a g eneral order has been issued in exercise of power under Section 92 of the Act, t o enable continuance of the existing Managing Committees of all the Cooperative Societies in the State for 6 more months. Therefore the managing committee of wh ich the petitioner was a chairman has got life up till October, 2009, on the str ength of the Government Notification dated 28.5.09. In the above circumstances, I consider it appropriate to direct the ROC to take the necessary steps, to complete the inquiry pending against the petitio ner, within the next 2 months. The ROC is to ensure that the petitioner is given fair opportunity to rebut the allegation for which the inquiry has been constit uted and if the inquiry findings exonerates the petitioner, the petitioner is or dered to be forthwith reinstated in the post of chairman of the society. However if the inquiry finding is adverse to the petitioner, the appropr iate decision in this regard should be taken in terms of the bye-laws and in acc ordance with the Act and the Rules.