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1995 DIGILAW 741 (ALL)

JAGAT NARAYAN SINGH v. DISTRICT ASSISTANT REGISTRAR, JAUNPUR

1995-07-25

B.K.SHARMA, OM PRAKASH

body1995
OM PRAKASH, J. ( 1 ) THIS petition raises a ticklish but an interesting question whether the petitioner ceased to be a Member of the Municipal board Kamachari Bhogi Sahkari Samiti, Jaunpur, which is a primary society, registered under the Uttar Pradesh Co-operative Societies Act, 1965 (for short "the Act" ). ( 2 ) BYE-JAWS of the Society are Annexure-1 to the writ petition. Bye law 6 kg of the said Bye-laws states that membership of the Society is open to all the employees, either permanent officiating or probationers Under this bye-laws, the petitioner became a Member of the aforesaid society before 1960, as he was an employee of the Municipal Board Jaunpur. He was elected as a delegate by the Primary Society to the District Co-operative bank Limited, Jaunpur on 23-12-1977. Being a delegate, he was elected a member of the Committee of Management of the District Co-operative bank Limited. Jaunpur on 22-10-1992. Under Rule 445 of the U. P. Co-operative Societies Rules, 1968 (brieffy "the Rules") terms of the Committee of Management shall be three years. Taus, the petitioner unless incurs a disqualification earlier, is entitled to continue as Member of the Committee of Management upto 21-10-1995. ( 3 ) THE petitioner retired as Principal of the Junior High School, Raja bazar Nagar Chhetra, Jaunpur on 30-9-1993. there upon, the District assistant Registrar, Jaunpur, respondent No. 1 passed an impugned order dated 18-11-1993 (Annexure-4 to the writ petition) holding that upon retirement from the post of Principnl, the petitioner ceased to be a Member of the Committee of Management. He, therefore, wrote to the Secretary/ general Manager, Distirct Co-operative Bank Limited, Jaunpur, to take up appropriate proceedings against the petitioner under Rule 454 of the rules. ( 4 ) IN Paragraph 10 of the counter-affidavit filed for respondents No. 2 and 3. It is pleaded that the petitionsrs membership came to an end of his retirement from service in view of the provisions of Rule 63 (iv) of the rules, which is as under :"a member of a Co-operative Society shall cease to be such member on (i ). . . . . . . . . . . . . . . . . . . . . (ii ). . . . . . . . . . . . . . . . . . . . . (iii ). . . . . . . . . . . . . . . . . . . . . . . . . . (ii ). . . . . . . . . . . . . . . . . . . . . (iii ). . . . . . . . . . . . . . . . . . . . . (iv) retirement, transfer or forfeiture of all the shares held by him". ( 5 ) IN the first instance, learned counsel for the respondents urges before us that the word retirement occurring in clause (iv) of Rule 63 refers to retirement from employment and that the petitioner having retired from service ceased to be a Member of the primary Society and therefore he incurred disqualification within the meaning of Rule 453 (1) (h), which states that no person shall be eligible to be, or to contiune as a member of the committee of management of any co-operative society if he is not a member of the general body of the society. The question therefore, is whether the petitioner ceased to be a member of the primary Society upon his retirement from service under Rule 63 (iv ). Submission of learned counsel for the petitioner is that the word retirement in clause (iv) of Rule 63 refers to retirement of shares held by a member of a co-operative society and not to the retirement from employment. ( 6 ) WHAT is the correct interpretation of the word retirement occurring in Clause (iv) of Rule 63 ? Since the word retirement occurring in clause (iv) of Rule 63 precedes the words tranfer or forfeiture of all the shares held by him principle of ejusdem generis will be relevant and if that is applied, the word retirement will take its colour and shade from the words "transfer or forfeiture of all the shares" The word "retirement" will not be assigned a meaning different from the words transfer or forfeiture. " if the meauing of the word retirement is understood in the light of the following words "transfer or forfeiture of the shares then the only conclusion that can be arrived at is that the word retirement will not mean seperannuation from service but it will mean the same as meant by the following words, namely, "transfer or forfeiture. " if the meauing of the word retirement is understood in the light of the following words "transfer or forfeiture of the shares then the only conclusion that can be arrived at is that the word retirement will not mean seperannuation from service but it will mean the same as meant by the following words, namely, "transfer or forfeiture. " ( 7 ) THE verb transitive retire according to the New Lexicon Webesters dictionary, Inter alia, means to withdraw money from circulation or bonds, stocks from the market. It is, therefore-clear that the word retirement does not always mean retirement from employment but that also means withdrawal, for example, the retirement of shares. If the word retirement is interpreted applying the principle of ejusdem geueris, which on the premises of this case, has to be applied means the retirement of shares. If the word retirement were used in the sense of ceasation of service in which it is generally understood than that would not have been used in Clause (iv) of Rule 63 in juxtaposition to the words "transfer or forfeiture of all the shares", This conclusion is also fortified by Rule 66 which to uses the words, "retire the shares". So, there may be retiremeat of shares held by a Member of a Society as they are capable of being transferred of forfeited within the meaning of Clause (iv) of rule 63. ( 8 ) WE are, therefore, of the considered view that the plea raised inm paragraph 10 of the counter-affidavit that the word retirement as envisaged by Rule 63 (iv) refers to retirement from the service, is not correct respondent No. 1 was, therefore, not "right in holding that upon retirement from service, the petitioner ceassed to be a member of the general body and, therefore, he could not continus as a Member of the Committee of management. ( 9 ) LEARNED Couasel for respondents then made a novel submission before us that the impugned order is not happily worded and what respondent no. 1 meant by the impugned order is that upon retirement from service, the petitioner no longer held shares in the Society and that being so, there was no question of his bering continued as Member of the society, and consequently, he ceased to be a Member of the Committee of management. 1 meant by the impugned order is that upon retirement from service, the petitioner no longer held shares in the Society and that being so, there was no question of his bering continued as Member of the society, and consequently, he ceased to be a Member of the Committee of management. ( 10 ) RULE 66 (ii) on a proper reading, briefly, states that a co-operative society may under Sub section (3) of Section 23, retire the shares of a member in a salary earners co-operative society in the event of cessation of his service by virtue of which he held membership of the society. The submission of the councel for respondent is that upon retirement from service, the petitioner ceased to have shares in the Co-operative Society and that being so, he ceased to have any interest in the Society after the retirement. Rule 66 falling in Chapter VI of the Rules, relates to shares and that does not state the point of time as to when a given member ceases to be a member. It is only Rule 63 wiht enumerates the contingencies in which a member of a co-operative society shall cases. Rule 66 (ii) simply enables a co- operative society to releases the shares of a member in a salary earners co-operative society in the event of transfer of such member from the area of operation of the societe or on cessation of his service by virtue of which he held membership of the society. No order has been shown to us that the co-operative society of which the petitioner is a Member, in fact retired the shares of the petitioner on the cessation of his service, and therefore, the inference that he lost his right to continue as a member of the society cannot be drawn Rule 66 is an enabling provision and, under Clause (ii) of that Rule, a co-operative society can retire the shares of a member of a co-operative society when his services cease. We are, therefore, not impressed by the submission of the counsel for respondent that the impugned order was passed in the event of resirement of shares of petitioner which he hits in the Co-operative Society. We are, therefore, not impressed by the submission of the counsel for respondent that the impugned order was passed in the event of resirement of shares of petitioner which he hits in the Co-operative Society. ( 11 ) ADVERTING to Rule 87 (v) of the Rules, learned Counsel for the respondents submits that the petitioner, ceased to be a deleagte upon his retirement from service Rule 87 (v) states that a person who is already a delegate of a co-operative society shall cease to be such delegate. If he ceases to hold the office by virtue of which he was a delegate of the soeiety in terms of the bye-laws of the society. Drawing our altenion to bye-law 6-ka of the bye-laws (Annexure-1 to the writ petition), the counsel for the respondents urges that the petitioner became a member of the Society because of his employment and that his membership will terminates as soon as his employment ceases The question is whether the petitioner was a delegate of the Primary Society by virtue of an office held by him or by virtue of employment. ( 12 ) ON the basis of bye-law 6-ka, it cannot be said that the petitioner became a delegate of the Society by virtue of an office held by him. because that bye-law simply means that membership of the Co-operative society will be open to the employees either permanent, officiating or probationers. It does not mean that the petitioner has become a member of the Society by with of any office held by him. No bye-law has been pointed out showing that if a particular office is held by some one. then he would become a Member of the Society by virtue of that office. The petitioner had become a member of the society in the yaar I960. It is not shown which office was held by him at that time and whether he was made a member of the Society at that time by virtue of that office, ( 13 ) THE petitioner simply cessed to be an employee and the respondents have failed to show that the petitioner ceased to hold the office by virtue of which be became a Member of the Sociey Cessation of office is diffierent from cessation of employment. If one has become a Member by virtue of a particular office held by him, then it is the duty of the respondents to show that the petitioner held that office when he became a Member and that he ceassed to be the Member because he lost that office. The respondent having failsn to establish that the petitioner had become a Member by virtue of a particular office held by him and that his membership of the society stood terminated, because he ceased to hold that office, rule 87 (v) of the Rules cannot be taken in aid by them to support their contention that the petitioner ceased to be a delegate of the Society upon retirement from service. ( 14 ) LASTLY, learned Counsel for the respondents urges that the impugned order passed by respondent No 1 does not disqualify the petitioner from being a member of the Committee of Management, but respondent no 1 simply asked the Secretary General Manager of the co-operative Bank Limited to hold a meeting to as certain whether the petitioner incurred any disqualification within the meaning of Rule 453 and that the point of disqualification of the petitioner will be considered in a meeting which be may attend. It is submitted that if a decision is taken in the meeting to be held pursuant to the impugned order that the petitioner incurred disqulification within the meaning of Rule 453, then he will have alternative remedy of arbitration and, therefore, the petition is pre-mature and not maintainable. ( 15 ) RULE 454 of the Rules enjoins upon the Committee of Managment of a Co-operative Society to ensure that no person incurring any of the disqualifications continues to hold office of a member of the Committee of Management and that as soon as the fact that the member is subject to any disqualification, comes to the knowledge of the Committee of Management, the Committee shall consider the matter in a meeting to be called for the purpose. From this Rule it is clear that the meeting can be called only when it comes to the knowledge of the Committee of Management that a member has incurred disqualification within the impugned order indicates that the fact that the petitioner incurred disqualification, which is a condition precedent to convene a meeting had come to the knowledge of the Committee of Management. The fact pointed out by respondent No. 1 in (he impugned order that the petitioner ceased to be a Member of the parent Society and for that that reason he also ceased to be a delegated of the Society and consequently, he cannot contnue to be a Member of the Committe of Management cannot be said to have beta prima facie established on the facts and circumstances of this case and therefore, the Committee of Management is no more under legal obligation to hold a meeting pursuant to the impugned order. The Committee of Management can act under Rule 454 only when the fact that a member has incurred a disqualification, comes to its knowledge and not before. Such facts cannot be said to have come to the knowledge of the Committee of Management from the impugned order, inasmuch as the respondents failed to so prima acie, that the petitioner ceased to be a member of the general body of the Society and he incurred disqualification under Rule 453. clause (h ). Respondent No 1. therefore, was not right in calling upon the Committee of Management to hold a meeting to consider the case of disqualification of the petitioner. ( 16 ) THE petitioner does have a right to seek Courts intervention to stop the Committee of Management from holding a meeting in the absence of the vital fact having come to its knowledge that he incurred disqualification to continue as a Member of the Committee of Management either under Clause (h) of Rule 453 or any other clause. The Committee of management cannot hold meeting at any time it likes, but the meeting can be held only when the correct fact is brought to its knowledge that the petitioner has incurred disqualification. The petition in our view is, therefore, not premature and it cannot be rejected on the ground of alternative remedy. The right to continue as a Member of Committee of Management for three years is a statutory right and the petitioner has a rigbt to protect it. Unless the requisite fact to hold the meeting is established, the committee of Management cannot be premitted to hold the meeting pursuant to the impugned order. ( 17 ) I he petition, therefore, succeed and is allowed. Impugned order, dated 18-11-1993 (Anuexure-14 to the writ petition) is quashed. Petition allowed. .