VELABHAI HARDASBHAI PATEL v. HIRABHAI HARDASBHAI PATEL
2006-10-11
AKIL KURESHI
body2006
DigiLaw.ai
( 1 ) IN this petition, the petitioner has challenged an order dated 29th August, 2006 passed by the Additional Secretary (appeals) by which, the said authority was pleased to allow the revision application filed by respondents no. 1 and 2 herein and set aside the order passed by the Additional Registrar (Cooperative Societies) on 17th June, 2006. ( 2 ) SHORT facts leading to the petition are as follows:2. 1. Petitioner was engaged as Secretary by respondent no. 6. Respondent no. 6 (herein after referred to as the Society) is a village level Primary Milk Cooperative Society. 2. 2. The petitioner was appointed as a Secretary by respondent no. 6-society in the year 1980. He continued to discharge his duties in the said capacity uninterruptedly right till year 2005. 2. 3. With regard to the functioning of the petitioner in discharge of his duties as a Secretary, there were certain complaints made by the Banaskantha District Milk Producers Cooperative Union Ltd (herein after to be referred to as the said Union ). Said society is a member of the said Union. Apparently, with respect to collection and depositing of milk of the members of the said society, there were certain irregularities spotted by the said Union and the Union, therefore, had entered into correspondence with the said society in this regard. On the basis of these complaints since no actions were being taken against the petitioner, respondent nos. 1 and 2 herein who are members of the said society, took up the issue of removal of the petitioner from his position as Secretary of the said society. These respondents initially approached the District Registrar urging him to exercise power u/s 76-B of the Gujarat Cooperative Societies Act (herein after referred to as the said Act ). Since no prompt response was received by these respondents, they approached this Court by filing Special Civil Application No. 16804/04. This petition was disposed of by learned Single Judge of this Court by order dated 16th September, 2005. The learned Judge recorded the submissions of learned AGP that an inquiry is already going on against the petitioner herein u/s 76-B of the said Act and that, hearing will be granted to these respondents before taking final decision by the concerned authorities. Eventually, respondent nos.
The learned Judge recorded the submissions of learned AGP that an inquiry is already going on against the petitioner herein u/s 76-B of the said Act and that, hearing will be granted to these respondents before taking final decision by the concerned authorities. Eventually, respondent nos. 1, 2 and 3 in the said petition, namely, the State Government and its authorities were directed to hear the complainant before taking final decision u/s 76-B of the said Act. 2. 4. Eventually, a show cause notice came to be issued against the petitioner on 18th October, 2005 levelling three main charges against him and calling upon him to show cause why steps u/s 76-B under the said Act should not be taken against him. Broadly stated, charges against the petitioner were as follows: that on certain occasions there was discrepancy in the quantity of milk collected by the said society from its members and that which was deposited with the Union. This according to the show cause notice was on account of irregularities committed by the petitioner. He had thereby willfully tried to siphon away the milk from the Union. On 3rd March, 2003 discrepancy to the extent of 18 liters of milk was noticed between the quantity of milk collected by the society and that deposited with the Union. The petitioner had admitted in writing about this discrepancy and had assured the Union that such fraud will not be committed in future. The vigilance team of the Union had during its personal visit conducted on 11th and 12th August, 2003 had made the petitioner deposit a sum of Rs. 1,50,292/- in the accounts of the society in respect of which amount the petitioner had committed irregularities. In this charge there were some more instances of irregularities in accounting which were also pointed out. 2. 5. In the show cause notice, it was, therefore, suggested that the petitioner is habituated in committing irregularities and he is not acting in the interest of the society. The authority was, therefore of the opinion that he should be removed from his post. Petitioner was called upon to show cause why such steps should not be taken. 2. 6. Petitioner denied the charges levelled against him and under his representations dated 6th December, 2005 and 16th December, 2005 tried to explain his position.
The authority was, therefore of the opinion that he should be removed from his post. Petitioner was called upon to show cause why such steps should not be taken. 2. 6. Petitioner denied the charges levelled against him and under his representations dated 6th December, 2005 and 16th December, 2005 tried to explain his position. He contented inter alia that accounts of the society have been regularly audited and no irregularities are noticed. He contended that the action is initiated only at the instance of the Union since there are disputes between the Union and the society. In short, he denied the charges levelled against him and requested that the proceedings be dropped. 2. 7. District Registrar, however, by an order dated 10th January, 2006 held the petitioner guilty of all the charges and exercising powers u/s 76-B of the said Act, ordered his removal. 2. 8. Petitioner preferred the revision application against the order passed by the District Registrar. Additional Registrar (appeals) by his order dated 17th June, 2006 allowed the revision application and set aside the order passed by the District Registrar. 2. 9. Respondent nos. 1 and 2 herein preferred further revision application before the State Government. The State Government by its impugned order dated 29th August, 2006 allowed the revision application and set aside the order passed by the Additional Registrar and restored the order passed by the District Registrar. The petitioner is, therefore, before this Court in this petition. ( 3 ) APPEARING for the petitioner learned advocate Shri P. K. Jani submitted that the District Registrar did not have power to initiate proceedings u/s 76-B of the said Act against the petitioner. He contended that the petitioner was not an officer of the society as defined u/s 2 (14) of the said Act. He further submitted that the society enjoys a degree of autonomy and it is not open for the State authorities to order removal of a paid employee of the society particularly when the society is firmly of the opinion that the service of the petitioner as Secretary is required. 3. 1. He further submitted that in any case the District Registrar could not have taken cognizance of the so called irregularities at the instance of respondent nos. 1 and 2 herein. He submitted that respondent nos. 1 and 2 are the members of the society.
3. 1. He further submitted that in any case the District Registrar could not have taken cognizance of the so called irregularities at the instance of respondent nos. 1 and 2 herein. He submitted that respondent nos. 1 and 2 are the members of the society. They, therefore, cannot have an independent stand in conflict with the stand of the society. He pointed out that the society never wanted removal of the petitioner and that, therefore, respondent nos. 1 and 2 could not have made any grievance before the District Registrar and the District Registrar could not have entertained complaints at the behest of these respondents. He further submitted that respondent nos. 1 and 2 had no locus standi to file revision application before the State Government and to challenge the order passed by the Additional Registrar. 3. 2. He submitted that the entire action of the District Registrar was pre-judged. Relying on the correspondence entered into by the District Registrar for collecting information against the petitioner, he pointed out that even before issuance of show cause notice the District Registrar had formed an opinion that the petitioner is required to be removed. 3. 3. He further submitted that in any case charges against the petitioner were not validly proved. He submitted that except for issuance of show cause notice and calling for explanation of the petitioner, no further material was supplied to the petitioner before passing adverse order against him. 3. 4. It was next contended that in any case even if the allegations were established, the same would not give any cause for removal of the petitioner u/s 76-B of the said Act, since the petitioner had neither committed persistent default in discharge of his duties nor acted in any manner prejudicial to the interest of the society. ( 4 ) IN support of his contention learned advocate Shri Jani placed reliance on the decision of Division Bench of this Court in the case of Amreli District Cooperative Sale and Purchase Union Ltd. vs. State of Gujarat reported in 25 (2) GLR 1244. My attention was drawn to the paras 74 and 75 of the judgment, wherein the Division Bench while upholding validity of Section 76-B of the said Act took note of the affidavit in reply filed on behalf of the State Government elaborating reasons for introduction of the said provision in the statute. 4. 1.
My attention was drawn to the paras 74 and 75 of the judgment, wherein the Division Bench while upholding validity of Section 76-B of the said Act took note of the affidavit in reply filed on behalf of the State Government elaborating reasons for introduction of the said provision in the statute. 4. 1. Reliance was also placed in the decision of learned Single Judge of this Court in the case of Parmar Dipubhai B. and Ors. vs. Registrar of Cooperative Societies and Ors. Reported in 2006 (2) GLR 1615, wherein the learned Judge had come to the conclusion that the State authorities have no power to order termination of employees of a cooperative society. 4. 2. Reliance was also placed on the decision of the Hon ble Supreme Court in the case of Zoroastrian Cooperative Housing Society Ltd. and Anr. vs. District Registrar, Cooperative Societies (Urban) and Ors. reported in AIR 2005 SC 2306 , wherein the concept of autonomy of a cooperative society has been discussed. 4. 3. Reliance was also placed on the decision of Allahabad High Court in the case of Sri Ram Autar Agarwal vs. District Cooperative Sugarcane Supply Society Ltd. Bareilly reported in AIR 1960 Allahabad 500, wherein provisions which are pari materia u/s 2 (14) of the said Act came up for interpretation. ( 5 ) ON the other hand learned AGP Ms. Shah supported the order passed by the State Government. She submitted that u/s. 76-B of the said Act the authorities enjoy power to order removal of a Secretary of a society even if he is not an elected Secretary and may even be paid employee of the society. She submitted that such powers are vested by the statute in larger public interest. She also relied upon provision contained in Section 2 (14) of the said Act defining the term officer of the society. ( 6 ) LEARNED advocate Shri Thakkar for respondent no. 6 society, however, supported the petitioner. He submitted that the society finds that the services of the petitioner as Secretary are required. He submitted that the action of the District Registrar was pre-judged. He also submitted that section 76-B of the said Act cannot be construed in such a manner as to compromise the autonomy of the internal functioning of the society. 6. 1.
He submitted that the society finds that the services of the petitioner as Secretary are required. He submitted that the action of the District Registrar was pre-judged. He also submitted that section 76-B of the said Act cannot be construed in such a manner as to compromise the autonomy of the internal functioning of the society. 6. 1. Learned advocate Shri Thakkar also questioned the locus standi of the private respondents in taking up the stand contrary to that of the society. ( 7 ) LEARNED advocate Shri Vaghela appearing for respondent nos. 1 and 2 opposed the petition. He submitted that the petitioner had committed gross irregularities. That on account of his clout and close relations with some of the influential members of the society, no action was being taken by the society. The conduct of the petitioner was causing great harm and prejudice to the society. These respondents, therefore, had rightly made complaints with the District Registrar as well as before this Court. He submitted that this Court had directed respondent nos. 1 and 2 to be heard before District Registrar, decided the proceedings against the petitioner. 7. 1. He further submitted that the petitioner had committed misappropriation of the funds of the Union and had also sold unauthorisely milk of the members of the society. The petitioner had committed several other similar irregularities which were detected by the Union. 7. 2. He submitted that the charges against the petitioner were serious. Such charges were held to have been proved by the District Registrar and the view of the District Registrar was approved by the Government. 7. 3. Mr. Vaghela also submitted that under the bye-laws the petitioner discharged some important functions and duties and, therefore, he was an officer of the society as defined u/s. 2 (14) of the said Act. ( 8 ) HAVING heard learned advocates appearing for the parties first question calls for consideration is whether the District Registrar had power u/s 76-B of the said Act to order removal of the petitioner. ( 9 ) SECTION 2 (14) of the said Act defines ?officer?.
( 8 ) HAVING heard learned advocates appearing for the parties first question calls for consideration is whether the District Registrar had power u/s 76-B of the said Act to order removal of the petitioner. ( 9 ) SECTION 2 (14) of the said Act defines ?officer?. Section 2 (14) reads as follows: 2 (14) officer -Means a person elected or appointed by a society to any office of such society according to its bye-laws; and includes a chairman, vice-chairman, president, vice-president, managing director, manager, secretary, treasurer, member of the committee, and any other person elected or appointed under this Act, the rules or the bye-laws, to give direction in regard to the business of such society. ?9. 1. Chapter 7 of the said Act pertains to management of the societies and includes Section 73 to 83 of the said Act. Section 73 of the said Act provides that final authority of the society subject to the provisions of the said Act and the rules shall vest in the general body of the members. Section 73 of the said Act reads as follows: 73. Final authority of society:- Subject to the provisions in this Act and the rules, the final authority of every society shall vest in the general body of members in general meeting, summoned in such a manner as may be specified in the bye-laws: provided that, where the bye-laws of a society provide for the election of delegates of such members, the final authority may vest in the delegates of such members elected in the prescribed manner, and assembled in general meeting. ?9. 2. Section 76 of the said Act pertains to appointment of officers and employees and other conditions of their service and reads as follows: ?76. Appointment of officers and employees and their conditions of service:- The qualifications for the appointment of a manager, secretary, accountant, or any other officer or employee of a society and the conditions of service of such officers and employees shall be such as may, from time to time, be prescribed. Provided that no qualifications shall be prescribed in respect of any officer not in receipt of any remuneration. ?9. 3. Section 76-B of the said Act pertains to removal of officer of the society.
Provided that no qualifications shall be prescribed in respect of any officer not in receipt of any remuneration. ?9. 3. Section 76-B of the said Act pertains to removal of officer of the society. Section 76-B reads as follows: ?76 B. Removal of officer:-If, in the opinion of the Registrar, any officer makes persistent default or is negligent in performance of the duties imposed on him by this Act or the rules or the bye-laws or does anything which is prejudicial to the interests of the society or where he stands disqualified by or under this Act, the Registrar may, after giving the officer an opportunity of being heard, by order removes such officer and direct the society to elect or appoint a person or a qualified member in the vacancy office so long only as the officer so elected or appointed shall hold office so long only as the officer in whose place he is elected or appointed would have held if the vacancy had not occurred. The Registrar may, by order, direct that the officer so removed shall be disqualified to hold or to contest election for any office in the society from which he is removed and in any other society for a period not exceeding four years from the date of the order and such officer shall stand disqualified accordingly. ? ( 10 ) FROM the perusal of the provisions contained in Section 76-B of the said Act, it can be seen that if in the opinion of the Registrar any officer makes persistent default or is negligent in performance of his duties imposed on him by the said Act or the rules or the bye-laws or does anything which is prejudicial to the interest of the society or where he stands disqualified under the Act, the Registrar may pass an order removing such an officer and direct the society to elect or appoint a person or a qualified member to fill the vacancy in the office. Such a step, however has to be taken only after giving the officer an opportunity of being heard. 10. 1. It can thus be seen that the power of the Registrar to order removal would extent only against an officer of the society and not against any other person or employee.
Such a step, however has to be taken only after giving the officer an opportunity of being heard. 10. 1. It can thus be seen that the power of the Registrar to order removal would extent only against an officer of the society and not against any other person or employee. In view of this, definition of term officer as contained in Section 2 (14) of the said Act assumes significance. 10. 2. From the perusal of the said section 2 (14), it can be seen that the definition is inclusive in nature as to include a person elected or appointed by a society including a Chairman, Vice Chairman, President, Vice President, Managing Director, Manager, Secretary, Treasurer, Member of the Committee and any other person elected or appointed under the said Act, rules or the bye-laws to give direction in regard to the business of such society. The group of words ?and any other person elected or appointed? to ?give direction in regard to the business of such society? have to be read in conjunction with the earlier portion of the definition whereby different office holders of the society are included in the definition of term officer. Therefore, though Secretary is included in the definition of term officer, he must fulfill the description of having the power to give direction in regard to the business of the society so as to be covered under the term officer as defined u/s 2 (14) of the said Act. In other words any person elected or appointed by a society as long as he fulfills the requirement of enjoying power to give direction in regard to the business of the society by whatever nomenclature called, would be the officer of the society. Conversely, irrespective of the tag of a Secretary of the society, if a person is only a paid employee enjoying no additional powers than to manage day-to-day affairs of the society and devoid of any power to give any direction as mentioned above, would not qualify to be categorized as officer of the society. ( 11 ) THE view that I have taken finds support from the decision in the case of Sri Ram Autar Agarwal vs. District Cooperative Sugarcane Supply Society Ltd. Bareily (supra) renderred by the Division Bench of Allahabad High Court.
( 11 ) THE view that I have taken finds support from the decision in the case of Sri Ram Autar Agarwal vs. District Cooperative Sugarcane Supply Society Ltd. Bareily (supra) renderred by the Division Bench of Allahabad High Court. In the said decision arising out of the Cooperative societies Act of that State, definition of term officer as found in Section 2 (d) of the Act which was similar to the one given in the said Act came up for consideration. In para 20 of the said decision, the Division Bench observed that though the definition of word officer is an inclusive definition and the class of people specially mentioned would not exhaust the list of persons who could be considered as ?officers?, nonetheless we must have regard to the clear indication in that definition that an officer must be one who is in a position to give direction with regard to the business of the Society. The Bench was pleased to reject the contention that the word ?officer? is synonymous with the word ?employee? or that all employees are officers within the meaning of the definition of that word. ( 12 ) ABOVE view would also be in consonance with the view of learned Single Judge of this Court expressed in case of Parmar Dipubhai B. and Ors. vs. Registrar of Cooperative Societies and Ors. (supra), wherein the learned Judge recognizing the autonomous internal functioning of a Cooperative society came to the conclusion that the Registrar of the Cooperative society has no power u/s 160 of the said Act to verify the validity of the recruitment made by the society or to direct termination of employees so employed. ( 13 ) IN case of Amreli District Cooperative Sale and Purchase Union Ltd. and Ors. vs. State of Gujarat (supra), Division Bench of this Court while upholding the constitutional validity of Section 76-B of the said Act, took note of the affidavit filed on behalf of the State Government, in which it was stated as follows:17. With reference to sec. 76-B, it is stated that if the managing committee of the society persistently makes defaults or is negligent in performance of duty imposed on it by the principal Act rules made thereunder or the bye-laws of the society or if it does nay act then prejudicial to the interest of the society or its members under provisions of sec.
76-B, it is stated that if the managing committee of the society persistently makes defaults or is negligent in performance of duty imposed on it by the principal Act rules made thereunder or the bye-laws of the society or if it does nay act then prejudicial to the interest of the society or its members under provisions of sec. 81 of the principal Act the managing committee of society is liable to be removed and an administrator can be appointed in its place. There was no provision in the principal Act for the removal of any individual officer for the Acts of omission and commission. Thus, on account of the default of the Chairman of a society or that of a single office bearer whole managing committee was liable to be removed. This is considered harsh and as such at this new provision action on the individual found responsible for such default is contemplated without disturbing the whole managing committee. This provision has been made in the interest of good management of society. . . . ?13. 1. On the basis of these averments the Division Bench was pleased to uphold the constitutional validity of section 76-B of the said Act in following terms. ?75. So far as the challenge to sec. 76-B is concerned we must reject it forthwith. The reasons are obvious. The provision is an enabling provision since in its absence the whole committee would expose itself to the extreme penalty of supersession for the persistent default or negligence of one of the officers of the society. It is only in order to locate the fault of that particular officer and for taking action against him so that the whole committee may not be exposed to supersession that the new provision is made by insertion of sec. 76-B. It cannot be said to be in any way denying or circumscribing the right to form association. It also does o not curtail the right to carry on business or trade guaranteed under Art. 19 (1) (g) having regard to the purpose of the section. The challenge to this sec. 76-B is therefore, rejected. ?13. 2.
76-B. It cannot be said to be in any way denying or circumscribing the right to form association. It also does o not curtail the right to carry on business or trade guaranteed under Art. 19 (1) (g) having regard to the purpose of the section. The challenge to this sec. 76-B is therefore, rejected. ?13. 2. It can thus be seen that the principal purpose of introducing section 76-B of the said Act in the statute was that earlier there was no provision in the principal act for removal of any individual officer for the acts of omission and commission and, therefore, it was found that on account of default of the Chairman of the society or that of a single office bearer whole managing committee was liable to be removed. The situation was considered harsh and, therefore, new provision enabling taking of action on individual found responsible for such default was contemplated without disturbing the whole managing committee. 13. 3. It can thus be seen that the constitutional validity of section 76-B of the said Act was upheld by the Division Bench of this Court principally taking note of the background leading to enactment of the said provision. ( 14 ) INTERPRETING the term officer as contained in section 2 (14) of the said act so as to include even a paid officer who enjoys no further powers then to manage day to day affairs of the society would expose the provisions contained in section 76-B of the said Act to the vice of unconstitutionality as the same would give power to the Registrar to remove even an ordinary employee of the society and would seriously hamper the autonomy of a society to manage its internal affairs. This in term would seriously dent the fundamental right to form an association guaranteed under Article 19 (1) of the Constitution. It is well settled that as far as possible Court should construe statutory provisions harmoniously so as not to render such provisions unconstitutional.
This in term would seriously dent the fundamental right to form an association guaranteed under Article 19 (1) of the Constitution. It is well settled that as far as possible Court should construe statutory provisions harmoniously so as not to render such provisions unconstitutional. In the case of State of Rajasthan vs. Basant Nahata reported in AIR 2005 SC 3401 discussing the rule of presumption of constitutionality of a statute the Hon ble Supreme Court observed in para 16 that ?this rule in its application as principle of construction means that if two meanings are possible then the Courts will reject the one which renders it unconstitutional and accept the other upholding the validity of the impugned legislation. ? ( 15 ) IN case of Zoroastrian Cooperative Housing Society Ltd. and Anr. vs. District Registrar, Cooperative Societies (Urban) and Ors. (supra) also the Hon ble Supreme Court recognized and reiterated the concept of autonomy of Cooperative societies. In para 11 of the said decision it was observed that the Cooperative movement by its very nature is a form of voluntary association where individuals unite for mutual benefit in the production and distribution of wealth upon principles of equity, reason and common good. In para 21 of the said decision, the Hon ble Supreme Court made following observations:21. Under the Indian Contract Act, a person sui juris has the freedom to enter into a contract. They bye-laws of a cooperative society setting out the terms of membership to it, is a contract entered into by a person when he seeks to become a member of that society. Even the formation of the society is based on a contract. This freedom to contract available to a citizen cannot be curtailed or curbed relying on the fundamental rights enshrined in Part III of the Constitution of India against State action. A right to enforce a fundamental right against State action, cannot be extended to challenge a right to enter into a contract giving up an absolute right in oneself in the interest of a association to be formed or in the interests of the members in general of that association. ?15. 1. In para 22 it was further observed that entering into an association with others for forming a Cooperative society and subscribing to its bye-laws are matters of contract voluntarily undertaking by a citizen.
?15. 1. In para 22 it was further observed that entering into an association with others for forming a Cooperative society and subscribing to its bye-laws are matters of contract voluntarily undertaking by a citizen. In para 23 of the decision following observations were made. 23. In the context of the freedom of contract available to a person and in the context of the right to form an association guaranteed by Article 19 (1) (c) of the Constitution of India, and the law governing such an association, courts have to be cautious in trying to ride the unruly horse of public policy in acceding to a challenge to a qualification for membership in the bye-laws, not taboo under the Act and the Rules themselves. ?15. 2. It can thus be safely concluded that for the purpose of section 2 (14) of the said Act it is not the nomenclature of ?secretary? which is important. What is important is nature of duties performed by such a person for and on behalf of the society. Only if the person has power to give direction in regard to the business of the society that such a secretary can be termed as ?officer?. Only then the power of the Registrar would extend to remove such a person u/s 76-B of the said Act. ( 16 ) IN the present case bye-laws of the society are on record. So far as the Secretary of the society is concerned, bye-law 40 of the bye-laws lays down the duties to be performed by the Secretary. The duties include those of convening and conducting meeting of the Executive Counsel of the society as per the direction of the Chairman of the society of incurring expenditure and carrying out recoveries as per the directives of the Executive Committee; of receiving mail on behalf of the society and brining important aspects to the notice of the Chairman and the Committee; of keeping proper records of the society; of carrying out day to day administration of the society; of placing proper material before the Executive Committee from time to time; of giving guidance to the paid employees of the society and to supervise their performance and to assign proper duties to the employees as per the decision of the Executive Committee; of keeping proper accounts etc.
( 17 ) IT can be seen that all the duties noted herein above and all those duties specified in bye-law no. 40 are purely of administrative nature primarily concerned about the day-to-day functioning of the society. In fact all important tasks are to be performed by the Secretary under directives of the Chairman or the Executive Committee. Secretary enjoys no independent powers of taking any independent decisions or to take any policy decisions for and on behalf of the society. The Secretary does not enjoy any power to give directions with regard to the business of the society in any manner. Considering the nature of duties performed by the Secretary and considering the nature of powers enjoyed by such a Secretary for performing such duties, I have no manner of doubt that the petitioner was nothing more than a paid employee of the society not enjoying any power to give directions in regard to the business of the society. The fact that the Secretary is necessarily a member of the society would be of no consequence. It is the nature of the duty to be performed and the powers enjoyed by such a Secretary in the present case which convinces me that he would not fulfill the requirements of Section 2 (14) of the said Act as interpreted herein above. ( 18 ) IN view of this discussion, I find that powers u/s 76-B of the said Act were not available with the Registrar or his delegate to remove the petitioner from the position as Secretary of the society. ( 19 ) I am however not convinced that the proceedings should be quashed only on the ground of want of locus standi of the respondent nos. 1 and 2 herein. It is true that respondent nos. 1 and 2 were only members of the society and would, therefore, not be in a position to hold a stand different from the society, that by itself would not be fatal to the impugned orders passed by the District Registrar as well as the State Government. Under section 76-B of the said Act the District Registrar enjoys suo motu powers to initiate proceedings. Similarly u/s 155 of the said Act the Government also enjoys suo motu powers to call for the record and examine legality of an order passed by the Additional Registrar.
Under section 76-B of the said Act the District Registrar enjoys suo motu powers to initiate proceedings. Similarly u/s 155 of the said Act the Government also enjoys suo motu powers to call for the record and examine legality of an order passed by the Additional Registrar. Therefore, even if the proceedings were instituted at the instance of respondent nos. 1 and 2, the same could still have been maintained independently in exercise of suo motu powers by the said authorities. Respondent nos. 1 and 2 had approached this Court and this Court had also permitted them to present their case before the District Registrar before taking final decision. In that view of the matter the complaint of these respondents could not have been rejected for want of locus standi. ( 20 ) I have also examined the legality of the impugned orders. I find that the orders cannot be sustained in law. ( 21 ) DECISION of the District Registrar however cannot be termed as pre-judged. The attempt on the part of the District Registrar to collect material from the auditor and reference to the subject of removal of the Secretary cannot be interpreted as acts of pre-judging the issue. When the District Registrar received certain complaints against the petitioner, before issuing show cause notice it was necessary that the District Registrar had sufficient material to inquire further into such allegations. No objection to collect such material can be taken nor reference in the communication can be interpreted to suggest that the District Registrar was proceeding with the pre-judged mind. ( 22 ) I however find that the ultimate orders passed by the District Registrar suffer from legal defects. The District Registrar issued show cause notice to the petitioner and called for his reply. After considering the reply, impugned order came to be passed holding that all three charges against the petitioner are proved. It may be noted that along with the show cause notice no documents or material was made available to the petitioner. Whether the acts and omissions committed by the petitioner were prejudicial to the society or not needed to be established. Primarily the allegation against the petitioner pertain to his mis-deeds causing loss and damage to the milk union. In what manner such conduct caused prejudice to the respondent no. 6-society had to be gone into. Learned advocate Shri Vaghela for respondent nos.
Primarily the allegation against the petitioner pertain to his mis-deeds causing loss and damage to the milk union. In what manner such conduct caused prejudice to the respondent no. 6-society had to be gone into. Learned advocate Shri Vaghela for respondent nos. 1 and 2 placed reliance on certain correspondence between the milk union and respondent no. 6-society. This material however was not supplied to the petitioner nor was the petitioner confronted with the contents thereof. Thus, I find that the impugned order also suffered from material irregularities and the District Registrar could not have concluded the issues against the petitioner without disclosing full material to the petitioner and the procedure adopted in my view was opposed to the principles of natural justice. ( 23 ) CONSIDERING all these aspects of the matter, I find that the petition is required to be allowed. Impugned orders dated 18th October, 2005 passed by the District Registrar and 29th August, 2006 passed by the State Government are quashed. Rule is made absolute. No costs. ( 24 ) LEARNED advocate Shri Vaghela for respondent nos. 1 and 2 requested that this order be stayed for a period of 30 days. At the request of these respondents, such a request cannot be considered, as I find that they have extremely limited role to play in the entire issue.