High Court
Case Details
WP(C) 4643/2008 BEFORE THE HON’BLE MR. JUSTICE T. VAIPHEI JUDGMENT AND ORDER (ORAL)
Legal Reasoning
2. The short question which falls for determination in this writ pe tition is as to whether the Registrar of Co-operative Societies, Assam (the Resp ondent No.2) has the power to remove the Secretary of Jaluguti S.S. Limited., wh ich is a registered co-operative society under the Assam Co-operative Societies Act. The controversy arose on the following facts and circumstances. The petitio ner was initially appointed as a Salesman-cum-Office Assistant in the Office of Jaluguti S.S. vide the order dated 23.4.1980 in terms of the resolution passed b y the Managing Committee of the Society and was thereafter promoted to the post of Secretary by the order dated 30.4.1994. He was, however, placed under suspens ion by the order dated 18.3.2000, and was, subsequently reinstated to act as Sec retary of the society on the finding that the allegations levelled against him w ere baseless and not proved vide the order dated 16.8.2001 issued by the Respond ent No.2. On 12.5.2006, a show cause notice was, however, issued to the petition er in connection with the same allegations for which he was earlier placed under suspension. The petitioner submitted his reply on 7.6.2006 by stating that he h ad not misappropriated any public money as alleged in the show cause notice. The Executive Meeting of the Managing Committee held on 1.8.2006 by the Resolution No.4 has exonerated all the charges levelled against him. This was followed by a nother resolution of the Annual General Meeting held on 18.6.2006 whereby the pe titioner was again exonerated from the charges by reiterating/approving Resoluti on No.4 by the Executive Meeting of the Managing Committee. There is no dispute at the bar that Resolution No.4 dated 1.8.2006 and 18.8.2006 has been duly appr oved by the Respondents No.2 and 5 in accordance with the provisions of the Assa m Co-operative Societies Act and the Rules framed thereunder. Resultantly, by th e order dated 27.11.2006 issued by the Respondent No.2, the petitioner was engag ed again as the Secretary of the said Society. However, to his surprise, the Res pondent No.2 issued the order dated 9.3.2006 removing him from service, the vali dity whereof I am now called upon to determine in this writ petition. 3. The submission of the learned counsel for the petitioner is that the Respondent No.2, who is merely an approving authority, cannot act as the di sciplinary authority to remove the petitioner from his capacity as Secretary, an d the impugned order issued by him, when he is not the competent authority to pa ss the impugned order, to remove him is ultra vires the provisions of Rule 33 of the Assam Co-operative Societies Rules, 1953 ( (cid:28)the Rules (cid:29) for short). To app reciate the contention of the learned counsel for the petitioner, I may quote Ru le 33 of the Rules, which reads thus:- (cid:28)33. Removal, expulsion, etc., of the Secretary, Treasurer, Directors and other office-bearers - (1) The Secretary or Treasurer of a Society or any other office -bearer may be removed from office by a resolution of a meeting of the General A ssembly specially convened for the purpose. (2) Unless otherwise provided in the bye-laws or in the terms of appointment, an y office of a society appointed by the administrative council or the managing bo dy may be removed from his office by the said council or body. (cid:29) 4. A bare reading of sub-rule (1) of Rule 33 unambiguously says th at the Secretary or Treasurer of a Society or any other office bearer may be rem
Arguments
Both Mr. M.U. Mondal, the learned counsel for the petitioner and Dr. B. Ah med, the learned Standing Counsel for the Co-operation Department, Government of Assam are heard at length. None appears for the Respondents No.6 and 7 despite proper service of notice by registered posts with A/D Cards.
Decision
oved from office by a resolution of a meeting passed by the General Assembly spe cially convened for that purpose. In other words, it is only the General Assembl y which is convened for the purpose, can remove the Secretary and other named of ficials named therein. However, under the proviso to Rule 26, proceedings of all meetings of the General Assembly shall be submitted to the Registrar or to the person/persons in the manner as may be prescribed by him from time to time for a pproval and until such approval is obtained proceedings of such meetings shall n ot be valid. Thus, a combined reading of Rule 33(1) and Rule 26 of the Rules wil l show that the resolution passed by the General Assembly for removal of the pet itioner cannot have any effect until such resolution is approved by the Registra r or the person/persons prescribed by him. Nevertheless, the power given to the Registrar of the Cooperative Societies to approve or not to approve the resolut ion of removal passed by the General Assembly cannot be equated with the power o f the General Assembly under Rule 33 to remove a Secretary or other named offici als therein. In other words, the power to remove the Secretary and the power to approve the removal of the Secretary of the society are entirely separate and di fferent transactions. Any interpretation to the contrary will render Rule 33(1) of the Rules otious. In the instant case, the learned Standing Counsel for the Co-operative Society has fairly submits that the order issued by the Respondent No.2 removing the petitioner as the Secretary of the Society cannot be construed approving the removal of the petitioner from service. It is only when the Gener al Meeting passes a resolution for the removal of the petitioner as the Secretar y of the society, the jurisdiction of the Registrar to consider granting his app roval to such resolution will arise. In the instant case, what the respondent No . 2 did in the impugned order was to usurp the function, which legitimately belo ngs to the General Assembly, which is impermissible in law. Until and unless the General Assembly of the society passes a resolution for the removal of the peti tioner, the question of authority of the respondent No. 2 has no authority in th e matter of removal of the petitioner as the Secretary of the society. In my opi nion, the impugned order issued by the Respondent No.2 removing the petitioner a s Secretary of the Society is ultra vires Rule 33 of the Rules, which cannot be sustained in law and this calls for the interference of this Court. 5. Resultantly, this writ petition succeeds. The impugned orders da ted 9.3.2007 and 26.9.2008 issued by the Respondent No. 2 removing the petitione r as Secretary of Jaluguti S.S. Ltd. are hereby quashed. The petitioner shall be reinstated to his post by the respondent No. 6 and 7 within a period of one mon th from the date of receipt of this order. So far as the back wages of the petit ioner is concerned, I leave it to the wisdom of the Managing Committee to pass a ppropriate order.