High Court · 2011

02. We have heard Mr. M.K. Choudhury, Senior Advocate assisted by Mr . M. Dutta, Advocate for the appellant, Ms. B. Goel, learned State Counsel for t he official respondents and Mr. M. Bhuyan, Advocate for the Respondent No.4, who has entered appearance through a caveat. In view of the order proposed to be passed, it is considered non

03. -essential to issue formal notice to the Respondent No.3. 04. Briefly stated, the radix of the present appeal is traceable to the event of superannuation of the Respondent No.3 as a Secretary of the appella nt-Society. In the face of such impending superannuation, the Managing Committee of the Society, in its meeting dated 06.10.2011 resolved to appoint him as the Honorary Secretary for two years with effect from 01.01.2011 on payment of some monthly honorarium to be decided later. The Additional Registrar of Co-operativ e Societies (Admn.), thereafter, vide his order dated 11.01.2011 approved the en gagement of the Respondent No.3 as Incharge Secretary of the appellant-Society a nd Baraigram C.S. Ltd. in exercise of his power under Clause - 27 of the rele vant bye-laws. While approving the resolution of the Managing Committee to the same effect, it was clarified that such approval would not confer any claim what soever to the (cid:28)Society’s or the I/c. Secretary (cid:29) for provincialisation of the pos t of Secretary. Subsequent thereto, the Registrar, Co-operative Societies, Assam by order dated 02.07.2011 withdrew the Respondent No.3 as the Incharge Secretar y of the appellant-Society and instead temporarily allowed the Respondent No.4 t o function in the said capacity, in addition to his normal duties until further orders. Situated thus, the Managing Committee of the Society in its meet 05. ing held on 06.07.2011 reiterated its earlier decision vis-à-vis the Respondent No.3. The meeting resolved to request the Registrar, Co-operative Societies to w ithdraw his order dated 02.07.2011 and request the Respondent No.3 not to hand o ver charge of the office of the Secretary to the Respondent No.4. The Responden t No.2, Registrar of Co-operative Societies, Assam, thereafter by his order date 14.07.2011, allowed the Respondent No.3 to act as the Incharge Secretary of the appellant-Society by cancelling his earlier order dated 02.07.2011. As this re spondent by his subsequent order dated 21.07.2011 cancelled the one dated 14.07. 2011, the appellant-Society approached this Court seeking judicial intervention. 06. The learned Single Judge heard the learned counsel for the parti es present and by the impugned judgment and order declined to interfere, mainly on the ground that the writ petition was not maintainable, it having been filed by the appellant-Society and not by the Respondent No.3, the person aggrieved. It was held that no legal right of the appellant-Society had been infringed by t he orders impugned. 07. Mr. Choudhury has persuasively argued with reference to Rule 33 & 35 in particular of the Assam Co-operative Societies Rules, 1953 (for short he reinafter referred to as the Rules, 1953) that it being apparent on a conjoint r eading thereof that the Managing Committee of Co-operative Society registered un der the Assam Co-operative Societies Act, 1949 (hereinafter for short referred t o as the Act, 1949) is the ultimate authority in the matter of appointment and r emoval amongst others of any salaried or non-salaried officer for proper conduct of his business, the impugned orders passed by the Respondent No.2 lacks in aut hority and jurisdiction and thus ought to have been annulled in the writ proceed ings. Drawing the attention of this Court to Clause 27 of the Bye-Laws applicab le to the appellant-Society, the learned Senior counsel has urged that the same is not a binding law to supersede the preponderant supremacy of the appellant-So ciety in appointing the Respondent No.3 as its Secretary. As the lis had been i nitiated by the appellant-Society to secure institutional welfare, the finding o f want of its locus is patently flawed, he urged. The Respondent No.3 having in itially been appointed as the Secretary of the appellant-Society by the Governme nt on regular basis, its decision to continue with him even after his age of sup erannuation was within its authority, he pleaded. Mr. Choudhury argued that the impugned orders disclose total non-application of mind and being bereft of any reason are liable to be adjudged non est. He also contended in favour of the a utonomy of a Co-operative Society registered under the Act and minimal State con trol over the affairs thereof. 08. To reinforce his argument, Mr. Choudhury placed reliance on the decision of the Apex Court in Andhra Pradesh Dairy Development Corporation Feder ation Versus B. Narasimha Reddy and Others, (2011) 9 SCC 286 and of this Court in Risheswar Neog Vesus State of Assam & Others, (1993) 1 GLR 184.

09. Ms. Goel, while endorsing the decision impugned, has insisted th at the writ petition filed by the appellant-Society is not maintainable, the Res pondent No.3 not having challenged the orders of the concerned departmental auth ority. 10. Mr. Bhuyan, while endorsing this stand of the State respondent, has asserted that as Rule 33 & 35 of the Rules envisage appointment of a Secreta ry of a Registered Co-operative Society on regular basis, these have no applica tion vis-à-vis a stop gap arrangement sought to be introduced by retaining the Respondent NO.3 in violation of the procedure prescribed. Such an appointment, i n absence of any provision in the Act of the Rules is wholly impermissible, he u rged. Referring to Section 3 of the Act, Mr. Bhuyan insisted that as the same v isualise conferment of all encompassing powers on the Registrar, Co-operative So cieties pertaining to issues relatable to the conduct of its affairs, the impugn ed orders passed by the Respondent No.2 are even otherwise unassailable. We have perused the pleadings available and have analysed the su 11. bmissions made. That neither the Act nor the Rules provide for appointment of S ecretary on honourary basis as in the case in hand is an undisputed fact. Where as, Rule 35(iv) empowers the Administrative Council or the Managing Body of a Co -operative Society registered under the Act to appoint salaried or non-salaried officers for proper conduct of its business, Rule 33 (2) enjoins that unless oth erwise provided in the bye-laws or in the terms of appointment, any officer of a Society appointed by the Administrative Council or Managing Body may be removed from his office by the said Council or Body.

12. Clause 27 of the Bye-Laws admittedly applicable to the appellant -Society, stipulates that the Managing Committee, with the prior approval from t he Registrar of Co-operative Societies as well as the financing Bank, may appoin t or remove fully salaried Director/Secretary. A cumulative reading, in particu lar of Section 33(2) and Clause 27(1) of the Bye-Laws proclaim an undeniable rol e of the Register of Co-operative Societies in the matter of appointment and rem oval of a fully salaried Director/Secretary of a Co-operative Society registered under the Act. Section 3 of the Act confers plenary powers on the Registrar of Co-operative Societies amongst others for the supervision and control of such S ocieties. The plea of lack of authority of the Respondent No.2, in passing the orders impugned in the writ proceedings, therefore, does not commend for accepta nce. The decision of this Court rendered in Risheswar Neog Vesus State of Assam & Others (Surpa) is in a totally different context and does not advance the cas e of the writ appellant. The appointment of the Respondent No.3 as its Secretar y on honorary basis being not contemplated by the Act, or the Rules, the notion of minimal State control to effectuate autonomy and independence of the Co-opera tive Societies propounded by the Apex Court in Andhra Pradesh Dairy Development Corporation Federation Versus B. Narasimha Reddy and Others (Supra) is also of no avail. 13. No explanation, whatsoever is forthcoming as to why the Responde nt No.3 had not ventured to assail the orders of the Respondent No.2 prejudicial ly affecting his right conferred by the resolutions of the Managing Committee. There is nothing on record whatsoever to demonstrate that the appellant-Society had been authorised by him to initiate the writ proceedings. The proceedings be fore this Court is not in the form of a Public Interest Litigation. The view tak en by the learned Single Judge on the issue of locus standi of the appellant-So ciety thus cannot be repudiated as wholly illogical and unfounded. We are inclin ed to sustain this conclusion in the facts and circumstances of the case. 14. In this view of the matter, it is non-essential to dwell on the other facets of the debate. The appeal lacks in merit and is thus dismissed. N o costs.