Judgment · High Court · 2012

Heard Mr. J. Ahmed, learned counsel for the petitioner and Mr. P.N. Goswami, lea rned counsel appearing for the respondent No.5. Also heard Mr. A. Hussain, lear ned counsel appearing for the respondent No.6 and Mr. M.U. Mondal, learned couns el appearing for the respondent Nos.7 to 11. None appears for the respondent No s.1 to 4. [2] The petitioner by the present petition has challenged the procee ding dated 5th February, 2011 of the one man Executive Committee consisting of t he Executing Officer of Kazaikata Samabai Samity Limited, who has been appointed by the Registrar of Cooperative Societies, on dissolution of the elected body, as one man Executive Committee, whereby and whereunder a resolution being resolu tion No.2 was adopted, which reads as follows:- (cid:28)Resolution No.2:- The secretary of Kazaikata S.S. Ltd. Sri Malbor Hussain was a rrested by the police in presence of Ex-Executive Officer for misappropriation R s.1 Lakh of the said samitee and he was dismissed from the samitee by the execut ive committee 14 years ago from today.

He has also misappropriated Rs.50,000/- (fifty thousand) granted by the Govt. to the Samitee for BPL rice. Today’s meet ing after detailed discussion come to conclusion that, how can such an exploitan t and guilty person be again appointed as Secretary of the said Samitee. So, to day’s meeting cancelled the resolutions adopted on 31/12/10 and unanimously adop ted a resolution that in pursuance to vide order passed by the RCS, Assam, the p resent secretary of the Samitee Sri Rafiqul Islam shall carry out the day-to-day affairs of the said samitee. (cid:29) [3] The petitioner, who was appointed as Secretary of the aforesaid Society was placed under suspension on 13th March, 1999 by the Managing Committe e, which was put to challenge by the petitioner in WP(C) No.4311/2003, wherein u pon hearing the learned counsel appearing for the parties an interim order dated 11th May, 2004 was passed directing reinstatement of the petitioner in service as Secretary of the said Society.

The said order was given effect to only after dissolution of the elected Managing Committee and appointment of the Senior Ins pector of Cooperative Societies as one man Executive Committee to manage the aff airs of the said Society. Though the Chairman of the elected body was a party r espondent in WP(C) No.4311/2003, he, however, did not contest the said proceedin g. The order dated 11th May, 2004, after much persuasion by the petitioner, was implemented by the said one man Executive Committee vide order dated 30th Decem ber, 2010. The said one man Committee thereafter, vide resolution dated 31st De cember, 2010 directed handing over charge of the Secretary to the petitioner. A fter adoption of the said resolution, the Executive Officer, who was appointed b y the Registrar, was changed and the respondent No.5, who was the Senior Inspect or of Cooperative Societies, Government of Assam, was appointed as the Executive Officer to manage the affairs of the said Society.

The respondent No.5 thereaf ter, adopted a resolution on 5th February, 2011 recalling the earlier resolution dated 31st December, 2010, which has been noticed above. The said resolution i s put to challenge in the present petition. [4] It has been contended by Mr. Ahmed, learned counsel that the res pondent No.5, in view of the order passed on 11th May, 2004 by this Court in WP( C) No.4311/2003, which has already been implemented vide order dated 30th Decemb er, 2011, cannot remove the petitioner from service by adopting the resolution, as has been done in the instant case. Referring to the affidavit filed by the r espondent No.5, it has also been submitted that the said respondent has admitted the mistake committed by him in adopting such resolution dated 5th February, 20 11, who, however, could not, because of his transfer passed any order subsequent ly withdrawing the same. Mr. Ahmed further submits that though the respondent N os.7 to 11 in the affidavit filed has taken the stand that the writ petition is not maintainable as the Secretary is the employee of the Managing Committee, the same is not tenable in law as the resolution was adopted by the Executive Offic er appointed by the Registrar of Cooperative Societies, who is also an officer o f the Government of Assam. [5] Mr.

Goswami, learned counsel appearing for the respondent No.5 s ubmits that the impugned resolution dated 5th February, 2011 ought not to have b een adopted by him in view of the order dated 11th May, 2004 passed in WP(C) No. 4311/2003 and though he could realize the mistake committed by him he could not correct the same as, in the meantime, he has handover the charge relating to the management of the Society to the elected body, which was earlier dissolved and subsequently reinstated by the Registrar of the Cooperative Societies. [6] Mr. Hussain, learned counsel appearing for the respondent Nos.6 and Mr. Mondal, learned counsel appearing for the respondent Nos.7 to 11, on the other hand, has submitted that the petitioner in fact was terminated from servi ce after he was placed under suspension in the year 1999 and, therefore, there w as no question of reinstating the petitioner in service pursuant to the order da ted 11th May, 2004 passed in WP(C) No.4311/2003.

It has also been submitted that since the Managing Committee has the power to remove the Secretary in exercise of the power conferred by the By-laws of the Society as well as the Assam Cooper ative Societies Rules, 1953 framed under the Act, the writ petition at the insta nce of the petitioner is not maintainable as it is a personal contract of servic e and the Managing Committee being not a statutory authority. The learned couns el in support of his contention has placed reliance on a Single Bench judgment o f this Court in Risheswar Neog -Vs- State of Assam & Ors. reported in (1993) 1 G LR 184. [7] It is not in dispute that the petitioner was earlier appointed a s Secretary of the said Society, who was, however, put under suspension by the e lected body of the Society on 13th March, 1999. The said order of suspension wa s put to challenge by the present petitioner in WP(C) No.4311/2003, wherein the Chairman of the elected body was also a party.

Vide order dated 11th May, 2004 an order was passed staying operation of the aforesaid order of suspension and d irected reinstatement of the petitioner in service with all consequential benefi ts. The chairman of the Managing Committee has chosen not to contest the said p roceeding and has not filed any affidavit. The said order dated 11th May, 2004 in fact has been implemented on 30th December, 2010, though belatedly by the Exe cutive Officer, i.e. the Senior Inspector of Cooperative Societies, who was appo inted to manage the affairs of the Society. The said Executive Officer also on 31st December, 2010 directed handing over the charge of the Secretary by the res pondent No.6 to the petitioner. As noticed above, in the meantime, there was ch ange of the Executive Officer and the respondent No.5, who is also Senior Inspec tor of Cooperative Societies, Government of Assam was appointed as Executive Off icer to manage the affairs of the Society, who on 5th February, 2011 adopted a r esolution questioning how the petitioner can be reinstated, thereby interfering with the order dated 11th May, 2004 passed by a Single Bench of this Court in th e aforesaid writ petition being WP(C) No.4311/2003.

As observed above, the Manag ing Committee of the Society never contested the proceeding in WP(C) No.4311/200 3. [8] The contention of the learned counsel for the respondent Nos.6 t o 11 that the petitioner was earlier terminated from service, i.e. much prior to passing of the order dated 11th May, 2004 in WP(C) No.4311/2003, cannot be acce pted as the petitioner pursuant to the said order, though belatedly, has been re instated in service on 30th December, 2010. The action on the part of the respo ndent No.5 in taking the decision as reflected in the proceeding dated 5th Febru ary, 2011, is contrary to the High Court’s direction issued vide order dated 11t h May, 2004 passed in WP(C) No.4311/2003. This Court, however, refrains from in itiating any proceeding against the said respondent No.5, as he has tendered unc onditional apology for the mistake committed by him by filing affidavit in the p resent proceeding. [9] The contention of the learned counsel appearing for the respond ent Nos.6 to 11 that the writ petition is not maintainable, cannot also be accep ted, as the Senior Inspector of Cooperative Societies, Government of Assam, who has been appointed by the Registrar as Executive Officer to manage the affairs o f the Society, took the decision in the proceeding dated 5th February, 2011, whi ch has been put to challenge in the present writ petition.

The Single Bench dec ision of this Court in Risheswar Neog (supra) case, in view of the said factual position cannot be applied. [10] In view of the aforesaid discussion, the decision taken by the E xecutive Officer of Kazaikata Samabai Samity Limited in the proceeding dated 5th February, 2011 is set aside. The petitioner shall be taken back in service as Secretary. It is, however, open to the Society to take appropriate action, in a ccordance with law, against the petitioner, if he has committed any misconduct. [11] Writ petition is accordingly allowed. No costs.