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2001 DIGILAW 508 (CAL)

Durga Das Ghosh v. State or West Bengal

2001-08-14

ALOK KUMAR BASU, ALTAMAS KABIR

body2001
JUDGMENT Kabir, J. 1. This application has been filed by the appellant for stay of operation of the judgment and order of the learned Single Judge dated 23rd May, 2001, dismissing the appellants writ petition, and for an order to restrain the respondents during the pendency of the appeal from giving any effect or further effect to the resolution adopted by the Rampurhat Co-operative A.R.D.B. Ltd. and to also restrain the West Bengal State Co operative Agriculture and Rural Development Bank Ltd., hereinafter referred to as the" Apex Society", from treating the appellant/petitioner as removed from the office of Director and from allowing Shri Gouranga Mondal to claim to be a Director of the Apex Society in place of the appellant/petitioner. A prayer has also been made to restrain the respondents from interfering with the appellant/petitioners functioning as Director of the Apex Bank till the disposal of the appeal. 2. The appellant/petitioner is a member and shareholder of Rampurhat Co-operative Agriculture and Rural Bank Ltd., which is an affiliated society to the West Bengal State Co-operative Agriculture and Rural Development Bank Ltd. The Annual General Meeting of the Apex Society is held by convoking representatives/delegates in the manner indicated in Rule 27 of the West Bengal Co-operative Societies Rules, 1987. Rule 30 of the said Rules provides for Constitution of the Board of the Apex Society by election from amongst members at an Annual General Meeting in the manner indicated in Rule 31. 3. Pursuant to a request made by the Apex Society regarding holding of its Annual General Meeting, the Board of Directors of the Rampurhat Co-operative A.R.D.B. Ltd., nominated the petitioner to act as its representative in the Annual General Meeting of the Apex Society. Upon being nominated, the appellant/petitioner contested elections for the office of Director of the Apex Society and was duly elected as such Director at the Annual General Meeting held in December 1999. 4. In the meantime, the Board of Directors of the Rampurhat Co-operative A.R.D.B. Ltd. was reconstituted and at a meeting held on 23rd November, 2000, the said Board resolved to recall the appellant/petitioner and nominated one Shri Gouranga Mondal in his place and stead to represent the affiliated society in the Apex Society. 5. 4. In the meantime, the Board of Directors of the Rampurhat Co-operative A.R.D.B. Ltd. was reconstituted and at a meeting held on 23rd November, 2000, the said Board resolved to recall the appellant/petitioner and nominated one Shri Gouranga Mondal in his place and stead to represent the affiliated society in the Apex Society. 5. Challenging the said resolution, the appellant/petitioner moved a writ application, being W.P. No. 21817(W) of 2000, which was dismissed by the learned Single Judge upon holding that the recall of the appellant/petitioner and the nomination of Shri Gouranga Mondal by the affiliated society had been correctly done in accordance with the Rules. The learned Single Judge also took note of the fact that the appellant/petitioner had participated in the meeting of the affiliated society on 17th November, 2000, where the resolution had been adopted to recall the appellant/petitioner and to nominate Shri Gouranga Mondal in his place. 6. Appearing for the appellant/petitioner, Mr. Milan Bhattacharya submitted that once having been elected as Director of the Apex Society, the appellant/petitioner acquired a new status apart from his role as a representative of the affiliated society in the Apex Society and he could either cease to be a Director in the circumstances indicated in Rule 40 of the West Bengal Co-operative Societies Rules, 1987, or be removed in the manner prescribed in Rule 41 thereof. 7. Mr. Bhattacharya urged that the legislature had made a conscious distinction between an elected Director and a nominated Director in Rule 41 and as an elected Director, the appellant/petitioner could be removed from such office only by a general meeting with due agendum as indicated in Clause (a) of sub-rule (I) of Rule 41. 8. Mr. Bhattacharya submitted that the learned Single Judge had misconstrued the provisions of Rule 39 of the aforesaid Rules in not taking into consideration the provisions of Rule 41(I)(a) while dismissing the appellant/petitioner's writ petition and such order was, therefore, liable to be stayed along with the impugned resolution adopted by the Board of Directors of the affiliated society on 23rd November, 2000. 9. Opposing the application, Mr. 9. Opposing the application, Mr. K.D. Mukherjee submitted that since the appellant/petitioner was not an elected representative/delegate but had been nominated by the Board of Directors of the affiliated society to the Apex Society, the provisions of Rule 39 of the aforesaid rules were clearly attracted in his case and the Board of Directors of the affiliated society had acted within its jurisdiction in adopting the impugned resolution on 23rd November, 2000. 10. Mr. Mukherjee submitted that by the impugned resolution, the Board of Directors of the affiliated society had not removed the appellant/petitioner from the office of Director of the Apex Society, but if the nomination was in respect of a single member constituency, the freshly nominated representative would automatically be a Director of the other society in accordance with the third option mentioned in the proviso to Rule 39. 11. Mr. Mukherjee submitted that the learned Single Judge had rightly dismissed the appellant/petitioners writ petition and the prayer for interim order made in the present application was also liable to be rejected. 12. From the submissions as made and the materials on record, the main point at issue which emerges is whether after recall of his nomination by the affiliated society, the appellant/petitioner could continue as a Director of the Apex Society. While Mr. Mukherjee strongly relied on Rule 39 of the 1987 Rules, Mr. Bhattacharya relied on Rule 41. 13. Admittedly, the appellant/petitioner was elected on contest as a Director of the Apex Society. Rule 41 prescribes the manner in which members of the Board of Directors may be removed. A distinction has, however, been made between elected Directors and nominated Directors. An elected member can be removed from office by a general meeting with due agendum. A nominated member may, however, be recalled by the authority nominating him. 14. We are inclined to agree with Mr. Bhattacharya that the provisions of Rule 41(1)(b) will have to be read along with the provisions of Rule 39. While Rule 39 empowers a society to nominate a member as its representative to another Co-operative Society and to recall such representative, Rule 41(l)(b) allows a society to recall a nominated member in the Board of Directors of the other society. 15. While Rule 39 empowers a society to nominate a member as its representative to another Co-operative Society and to recall such representative, Rule 41(l)(b) allows a society to recall a nominated member in the Board of Directors of the other society. 15. The appellant/petitioner may have initially been nominated by the affiliated society as its representative to the Apex Society, but he was not nominated as a Director of the Apex Society. He became a Director of the Apex Society on being elected by the delegates of other affiliated societies. The appellant/petitioner, therefore, enjoys the status of an elected Director, and, in our view, can be removed from such office by the procedure indicated in Rule 41(1)(a) of the West Bengal Co-operative Societies Rules, 1987. Consequently, the provision of the third option in the proviso to Rule 39 will not have any application as far as the appellant/petitioner is concerned and notwithstanding his recall as a nominee of the affiliated society to the Apex Society and the subsequent nomination of Shri Gouranga Mondal, the appellant/petitioner will continue to be a Director of the Apex Society and to function as such unless he ceases to be a member of the Board in terms of Rule 40 or is removed from such office under Rule 41(1)(a) of the aforesaid Rules. 16. Our aforesaid finding virtually disposes of the appeal itself. Accordingly, on consent of the parties, the appeal is treated as on day's list and is disposed of along with the application for stay by modifying the order of the learned Single Judge dismissing the appellant/petitioner's writ petition to the extent indicated in the preceding paragraph. 17. There will be no order as to costs. If an urgent xerox certified copy of this judgment is applied for, the same is to be supplied to the applicant expeditiously, subject to compliance with all the required formalities. Basu, J.: I agree.