High Court
Case Details
WP(C) 4375/2011 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL)
Legal Reasoning
Heard Mr. B.D.Das, learned senior counsel assisted by Mr. D. Nath, le arned counsel for the petitioner. Also heard Dr. B. Ahmed, learned Standing Coun sel, Cooperation Department and Mr. A. Ganguly, learned counsel for respondent N o.5.
Decision
2. By way of this writ petition under Article 226 of the Constitution of India, petitioner seeks a direction to Chariduar Brahmaputra aru Khaloibeel F ishery Co-op. Society Ltd, Tezpur (respondent No.5) to implement the order dat ed 3.6.2011 passed by the Registrar of Co-operative Societies, Assam (Annexure-2 2 to the writ petition) and for payment of arrear salary. Further prayer made is for quashing resolution Nos. 7,8 and 9 of the said society adopted in the Annual General Meeting held on 29.5.2011. 3. Case of the petitioner as projected in the writ petition is that he was appointed as Secretary of Chariduar Brahmaputra aru Khaloibeel fishery Co-opera tive Society Ltd. ( Co-operative society) on 15.11.1978 and continued as such s ince then. He was served with a show cause notice on 29.4.2010 by One Man Adhoc Committee of the Cooperative society making certain allegations. Petitioner sub mitted his reply but the same was not accepted and an enquiry was ordered. Ther eafter, petitioner was debarred from functioning as Secretary of the Cooperati ve society. Matter was referred to the Assistant Registrar of Cooperative Societ ies, Tezpur, who on preliminary enquiry found the petitioner to be not guilty. M atter was further referred to the Registrar of Cooperative Societies, who by ord er dated 3.6.2011 held that debarring of the petitioner from functioning as S ecretary of the Cooperative Society was not justified. Petitioner was accordingl y allowed to function as Secretary. Assistant Registrar of Cooperative Societies , Tezpur was directed to take necessary steps to hand over the charge of the Secretary of the Cooperative society to the petitioner but the Chairman and oth er office bearers of the Cooperative society did not allow him to join. In the meanwhile, while Registrar of Cooperative Societies was in seisin of the matte r, the newly elected Managing Committee of the Cooperative society adopted the impugned resolutions and decided to release the petitioner from service. Petit ioner submitted representations before the respondent authorities on 9.6.2011 an d 28.6.2011 for compliance of order dated 3.6.2011 but no steps were taken. 4. Aggrieved, petitioner has filed the present writ petition seeking the re liefs as indicated above. Respondent No.2 in his affidavit has stated that pursuant to order dat 5. ed 3.6.2011, Zonal Joint Registrar of Cooperative Societies, Tezpur by his lette r dated 30.6.2011 had directed the Assistant Registrar of Cooperative Societies, Tezpur to inform him about non-compliance of order dated 3.6.2011. 6. Counter affidavit has been filed by respondent No.5. A preliminary obje ction has been raised stating that the Cooperative society is not a ’State’ wit hin the meaning of either Article 12 or Article 226 of the Constitution of India . Though it is registered under a statute, it is not a creation of the statute. Its function is purely private and commercial in nature. No public or statutory element is involved in its functioning. Therefore, no writ or direction can be issued to the Cooperative society. It is further stated that order dated 3.6.2 011 has no legal sanctity as it does not have any statutory backing. Reference to the Registrar of Cooperative Societies was un-called for as the Registrar ha s no jurisdiction to decide internal matters of discipline of a Cooperative soci ety and, therefore, question of enforceability of such illegal order does not arise. Since matter pertains to disciplinary action, Registrar may be preclu ded from enforcing such a decision illegally taken by him. On merit also, remo val of the petitioner has been justified. 7. Short point for consideration is whether having regard to the facts a nd circumstances of the case, any writ or direction can be issued to the Cooper ative society? 8. Before attempting to answer the aforesaid question, order dated 3.6.2 011 may be briefly noticed. As per the said order, Assistant Registrar of Cooper ative Societies, Tezpur had submitted enquiry report regarding debarring of th e petitioner from Secretary- ship of the Cooperative society by One Man Adhoc C ommittee. Assistant Registrar was of the view that such a course of action was c ontrary to the bye laws of the Cooperative society. Registrar of Cooperative Soc ieties agreeing with the views of the Assistant Registrar allowed the petitioner to function as Secretary of the Cooperative society. Order dated 3.6.2011 read s as under :- (cid:28)O R D E R Whereas the Asstt. Registar of Co-operative Societies, Tezpur vide his lett er No. CDTP.1/2010/110, dt. 10-3-11 submitted enquiry report regarding debarred of Shri Uttam Das from Secretaryship of Chariduar Brahmaputra Aru Khaloibeel F ishery Coop. Society Ltd. by the then One Man Ad-hoc Committee Shri Jibon Hazari ka, Sr. Inspector of Coop. Societies. And whereas it has been reported that the debarring process was contrar y to the bye-law. The matter of misappropriation of society’s fund by the Secret ary was taken place for hearing by the Asstt. Registrar of Co-op. Societies, Te zpur and reported that the amount collected by the Secretary has been spent i n various works of the society. And whereas the debarring process was not justified, and the then One M an Ad-hoc Committee Shri Jiban Hazarika was directed by the Asstt. Registrar of Co-operative Societies to reinstate the Secretary Shri Uttam Das, but Shri Hazarika did not take steps for reinstatement. And whereas it reveals from the enquiry report that there is no legal po int in regard to debarred Shri Uttam Das from Secretaryship. And whereas the one man ad-hoc committee did not comply instruction of his superior officer and as the debarring process was not justified, I am of th e opinion that Shri Uttar Das is ought to be allowed to function as Secretary o f Chariduar Brahmaputra Aru Khaloibeel F.C.S. Ltd. Therefore, I Shri S.K. Nath, IAS, Registrar of Co-op. Societies, Assam G uwahati do hereby allow Shri Uttam Das to function as Secretary of the said soci ety. This order will come into force with immediate effect. (cid:29) 9. Petitioner seeks enforcement of this order by issuance of a writ or d irection to the Cooperative society. 10. As per impugned resolutions, the decision of the newly elected Managin g Committee to remove the petitioner from the Secretary-ship of the Cooperative society for indulging in illegal activities were approved by the General Body Meeting of the Cooperative Society. 11. In para 2 of the writ petition, it is stated that respondent No.5 (C ooperative society) is a registered cooperative society under the provisions o f the Assam Cooperative Societies Act, 1949 and has about 1100 share holders. The affairs of respondent No.5 are controlled and regulated by Government of Assam as per provisions of Assam Cooperative Societies Act, 1949. Therefore, i t is contended that respondent No.5 is a ’State’ within the meaning of Article 12 of the Constitution of India and amenable to the writ jurisdiction of this C ourt. 12. On the basis of the aforesaid averments, no conclusion can be arrived at regarding the status of the Cooperative society. Materials placed on recor d are wholly inadequate to hold that the Cooperative society is a ’State’ with in the meaning of Article 12 of the Constitution of India or any other authority under Article 226 of the Constitution of India. In the absence of adequate plea dings, no direction as sought for by the petitioner can be issued to the Cooper ative society. Petitioner was holding the office of Secretary of the Cooperat ive society and not under the Government or under any statutory authority or und er any authority where the Government has deep and pervasive control. 13. In view of the aforesaid finding, it is not necessary to examine the o ther issues raised by the petitioner. 14. There is no merit in the writ petition. Writ petition is accordingly dis missed. No cost.