Also hea rd Mr. R K Bora v. Nos.1 to 5

Mr. B C Das, learned senior counsel refers to the provisions of the Assa 4. m Co-operative Societies Rules, 1953 (Hereinafter referred to as ’the Rules’) an d submits that under the Rule 35, the Managing Committee of the Society has the power to suspend an officer of the Society and since the bye-laws permit such ac tion against the Secretary, there was no justification for the ROC to set aside the resolution on the ground that the action taken by the Managing Committee is contrary to the Rules and the byelaws. To establish that the Managing Committee has the power to take action ag 4.1. ainst the Secretary of the Society, the learned counsel refers to the provisions of the bye-law 27(1) of the Society, which reads as under: (cid:28)27. Secretary:- 1) The appointment and removal of the Secretary who shall be full time paid offi cer shall be made by the Managing Committee with the prior approval of the Regis trar of Co-operative Societies and the Financial Bank. Provided further that the Registrar, Co-operative Societies may also appoint the Secretary if he deems fi t and proper (cid:29)

4.2. It is also contended on behalf of the petitioner that only because the S ecretary was defying the order of the Chairman, a decision on his suspension was taken in the meeting of the Managing Committee held on 16.6.2008 and the said r esolution was subsequently approved by the I/C. Asstt. Registrar of Co-operative Societies, Hojai by order dated 21.6.2008 and under such circumstances, the ROC ought not to have interfered with the action taken against the respondent Secre tary by the Managing Committee.

5. To support the impugned order of the ROC, Mr. R K Bora, learned Govt. Ad vocate refers to the counter affidavit filed by the Joint Registrar of Co-operat ive Societies. The learned Govt. Advocate submits that the meeting of the Managi ng Committee was convened on 16.8.2008 by the Chairman himself at his own initia tive by telephonically requesting a section of the members of the Managing Commi ttee and since the said meeting had been convened in violation of the procedure prescribed by the Rules, the decision taken by the Managing Committee in the sai d meeting was rightly interfered with by the ROC. 5.1. The learned Govt. Advocate contends that action against the Secretary of the Society was taken in an irregularly convened meeting and that too, without affording any opportunity to the respondent No.6 and in such backdrop, the ROC h as rightly disapproved of the action taken by the Managing Committee. Representing the Secretary (Respondent No.6) Mr. S S Dey, learned counse 6. l firstly submits that he has been functioning as the Secretary of the Society f or more than 23 years and had always discharged his responsibility in the best i nterest of the Society and there should have been no occasion for the Society to take any action against the Secretary. The learned counsel submits that the imp ugned resolution for his suspension was taken only at the behest of the Chairman of the Society who took a perverse personal interest in the matter without asce rtaining the views of the other members of the Managing Committee in an irregula rly convened meeting and under such circumstances, the impugned action is vitiat ed by mala fide and also malice in law.

6.1. The learned counsel refers to the enquiry report dated 4.7.2008 of the D y. Registrar of the Co-operative Societies, Nagaon and submits that the said rep ort clearly reveals that the Chairman had not convened the Managing Committee’s meeting on 16.6.2008 by affording requisite notice time in terms of the requirem ent of Rule 34 of the Rules, which speaks of (cid:28)at least 4 days notice (cid:29) for a meet ing of the Managing Committee. But in the instant case no such notice was given to any of the members of the Managing Committee and no information was also furn ished about the agenda of the meeting.

6.2. Mr. Dey submits that it is apparent from the statement of the witnesses, who were members of the Managing Committee that information of the meeting on 1 6.6.2008 was given over telephone by the Chairman only to chosen members on 15.6 .2008 and some others were informed only on the actual date of meeting and under such circumstances, the so called meeting of the Managing Committee was not con vened in accordance with the provisions of Rule 34 of the Rules and therefore, a ny decision taken in the said meeting of the Managing Committee would stand viti ated in law. Mr. Dey also points out that the Chairman only by his letter dated 13.6. 6.3. 2008, had directed the Secretary to convene a meeting of the Managing Committee within 20.6.2008 and while the Secretary was making arrangement for convening th e meeting on 19.6.2008, the Chairman took the initiative on his own to convene t he meeting of the Managing Committee by telephonically informing the Members and such a meeting was held on 16.6.2008, when a resolution for suspension was pass ed. The counsel submits that the suspension was ordered on the ground that the S ecretary had not complied with the direction of the Chairman for shifting the Of fice of the Society from the rented house to its own building but it is pointed out by Mr. Dey that he informed the Chairman that unless renovation is done on t he building of the Society, shifting may not be immediately feasible and in fact the issue of shifting was also to be discussed and decided in the meeting which was being convened by the Secretary scheduling it on 19.6.2008 but even before the Secretary could take necessary action, the resolution was passed 3 days earl ier on 16.6.2008 in an irregularly convened meeting of the Committee.

6.4. The learned counsel further submits that bye-laws of the society permits actions to be taken against the Secretary by the Managing Committee only with t he prior approval of the ROC and in the instant case, the action has been taken for the Secretary’s suspension without obtaining such prior approval and as such the impugned action has rightly been interfered with by the ROC.

6.5. The locus standi of the Society to institute the present litigation has also been questioned by Mr. Dey by contending that no authorization to the Chair man to file the instant writ petition was given by the Society when the case was filed on 13.8.2008 and since the Society is not a legal entity, without the ben efit of an authorization, this case could not have been filed by the Society thr ough the Chairman claiming to espouse the interest of the Society.

7. Mr. B C Das, learned senior counsel in his reply submits that after fili ng of the writ petition on 13.8.3002, an Executive meeting of the Society was he ld on 4.9.2008 and in the said meeting post-facto approval of the action taken b y the Chairman to file the case in the High Court to challenge the ROC’s order d ated 16.8.2008 and such post-facto approval would regularize the action taken by the Chairman on behalf of the Society.

7.1. The learned counsel also relies upon a decision of the Apex Court in Jas bhai Motibhai Desai v. Roshan Khan reported in (1976) 1 SCC 671 to contend that issue of locus standi cannot be so narrowly interpreted to exclude a challenge b y a society or its Chairman who have suffered a legal injury by the action of th e ROC and under such circumstances, the technical objection raised by Mr. Dey sh ould not to come in the way of the Court, in considering on merit the grievances raised in the instant case. In support of his contention that the Managing Committee was empowered b 7.2. y the bye-laws to place the Secretary of the Society under suspension, the learn ed counsel has referred to a Full Bench decision of this Court in U. G. Koring S ingh Lyngdoh v. Executive Committee, District Council reported in AIR 1971 Assam & Nagaland 129 to contend that the expression (cid:28)with prior approval of the Regis trar of Co-operative Societies (cid:29) would empower the Managing Committee to take act ion and thereafter seek approval and in such situation the only difference would be that the action taken by the Managing Committee would not operate immediatel y but will operate only from the date of approval by the ROC.

8. On reading of the judgment of the Full Bench in U G Koring Singh Lyngdoh (Supra), I find that the Court in this case was interpreting an expression (cid:28)sub ject to the approval (cid:29) and was not interpreting an expression (cid:28)with the prior app roval (cid:29) and therefore, in my view this decision relied upon on behalf of the peti tioner will have no application in the present case. I read from Rule 34 of the Rules that at least 4 days notice with a stat 9. ement of the business to be discussed in such meeting has to be given and in the instant case not talk of 4 days notice, I find that no agenda or notice of the meeting scheduled on 16.6.2008 was circulated. In fact the meeting was convened at the personal initiative of the Chairman, who telephonically informed a sectio n of the members and under such circumstances, it is obvious that the meeting th at was held on 16.6.2008 was in contravention of the provisions of Rule 34 of th e Rules.

10. While it is seen that the Managing Committee of the Society is empowered under Rule 35 of the Rules to suspend an Officer but such suspension can be ord ered only in the manner provided by the bye-laws of the Society. The bye-laws of the Society as is already noted, permits action against a Secretary only with t he prior approval of the ROC and under such circumstances, the resolution passed in the meeting of the Managing Committee on 16.6.2008 without prior approval of the ROC, cannot be sustained as the Managing Committee was not authorized to ac t in such manner.

11. As the meeting of the Managing Committee is found to be convened in cont ravention of Rule 34 and since the decision taken in the meeting is found to be in contravention of Rule 35 and also the bye-laws of the Society, I find enough justification for the ROC to pass the impugned order setting aside the action ta ken by the Managing Committee against the Secretary of the Society.

12. tioner that the action of the ROC was not warranted in law. Accordingly, I do not find any force in the submissions made by the peti

13. Having taken the aforesaid view, I see no justification to burden this j udgment with a discussion on the issue of locus standi of the petitioner.

14. This writ petition is accordingly dismissed without any order on cost.