Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 614 (GAU)

James Techi Tara v. State of Arunachal Pradesh

2008-08-21

P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. Heard Mr. T. Son, learned Counsel for the petitioners, Ms. G. Deka, learned Addl. Senior Govt. Advocate for the State respondents and also Mr. T. Pertin, learned Counsel for the respondent No. 4. 2. This application under Section 226 of the Constitution of India is directed against the order dated 18.1.2008 (Annexure-4 to the writ petition) issued by the Registrar, Cooperative Societies, Government of Arunachal Pradesh, Naharlagun superseding the elected and constituted Board of Directors of the Management Body of the Arunachal Pradesh Consumer Co-operative Federation Limited, Naharlagun and appointing the respondent No. 4, Shri R.D. Thungon, Jt. Registrar of Co-operative Societies as Administrator. 3. The petitioners are elected members of the Arunachal Pradesh Consumer Co-operative Federation Ltd. ('the Society') who are elected for a terms of three years from 10.6.2006 to 10.5.2009 and they have been discharging their duties as elected representatives of the Society. The respondent-Registrar of the Co-operative Societies issued a show-cause notice vide letter No. COOP(GEN) 5/2001-Vol-1 dated 18th December, 2007 addressed to the managing director of the Society asking him to submit explanation/reply to the allegations leveled against him for mismanagement and mis-utilization of funds and other irregularities including failure to pay salary to the staff of the Society. 4. In the said show-cause notice issued under Section 79(1) of the Arunachal Pradesh Co-operative Societies Act, 1978, it is stated that the notice is intended to supersede the management under the present Board of Directors ('BODs') of the Federation and affording the managing director with the opportunity of stating his objections, if any within 30 days from the date of issue of such notice. 5. In reply to the said show-cause notice, the managing director of the Society submitted the response vide letter No. ARUNFED/BOD/2007 dated 16th January, 2008 addressed to the Registrar of the Cooperative Societies, Government of Arunachal Pradesh. The respondent-Registrar on receipt of the said reply and finding the same unsatisfactory, issued the impugned order of super session vide No. COOP (GEN) 5/2001-Vol-1, dated 18th January, 2008 in purported exercise of powers under Section 79(1) of the Arunachal Pradesh Co-operative Societies Act, 1978 ('the Act'). 6. Mr. The respondent-Registrar on receipt of the said reply and finding the same unsatisfactory, issued the impugned order of super session vide No. COOP (GEN) 5/2001-Vol-1, dated 18th January, 2008 in purported exercise of powers under Section 79(1) of the Arunachal Pradesh Co-operative Societies Act, 1978 ('the Act'). 6. Mr. T. Son, learned Counsel for the petitioners submits that the impugned order of super session is illegal, arbitrary and unreasonable inasmuch as the show-cause notice was issued to the managing director of the Society who is not an elected member of the BODs of the Society and no notice was served on the Chairman of the Society or any individual member of the BODs, although the allegation of mismanagement and mis-utilization of the funds of the Society have been made against the BODs. Moreover, the managing director against whom the show-cause notice was served did not place the matter before the Chairman or the BODs of the Society for consideration and taking any decision with regard to the allegations made against the BODs and reply to be submitted to the respondent-Registrar. Further more, Mr. Son submits that before filing the show-cause reply, the managing director did not take the due approval from the BODs nor was he authorized by the BODs to submit show-cause reply on behalf of the BODs. In the eye of law, according to Mr. Son, learned Counsel for the petitioners, the Society is a legal entity and show-cause notice should have been served upon the Chairman or in the name of BODs and it is only the Chairman or the BODs who are the legal authorities to submit the show-cause reply to the respondent-Registrar. The show-cause notice as issued by the Registrar to the managing director of the Society is not at all contemplated under the provision of law and as such, such notice issued in the name of managing director and the reply so submitted by the managing director and the order of super session of the elected body on the basis of such show-cause reply is illegal and unsustainable in law. 7. Mr. 7. Mr. T. Son, learned Counsel for the petitioners also submits that the respondent No. 4, namely, Shri R.D. Thungon, who has been appointed as Administrator by the impugned order was serving as managing director and Administrator during 2002-2005 and during the said period, there was a serious allegation of financial irregularities involving huge amount of Rs. 30 lakhs against him which found place in the Audit report of 2002-2005. According to Mr. Son, the allegation of mismanagement and financial irregularities were made against the present petitioners at the behest of the respondent No. 4 to save himself from the allegation leveled against him. The respondent No. 4 has been appointed as Administrator of the Society by the respondent authorities with some mala fide intention and as such, he should not be allowed to continue as Administrator of the Society any longer. 8. Mr. T. Pertin, learned Counsel for the respondent No. 4 relying on the affidavit filed on behalf of the respondent No. 4, submits that the allegations of financial irregularities and other irregularities leveled against him are baseless and the respondent No. 4 is not at all connected with the issuance of show-cause notice and issuance of the impugned order of super session. 9. An affidavit-in-opposition has been filed on behalf of the State respondents. Ms. G. Deka, learned Addl. Sr. Govt. Advocate submits that the impugned order of super session was issued in exercise of the powers under Section 79(1) of the Act and on the basis of the allegations received by the respondent-Registrar from the employees of the Society regarding mismanagement and financial irregularities committed by the BODs, which was enquired into by the respondent No. 4. An inquiry report dated 18.12.2007 was submitted by Shri R.D. Thungon, Jt. Registrar. According to Ms. Deka, the respondent-Registrar found prima facie case for issuing show-cause notice and accordingly, it was issued and having found the show-cause reply unsatisfactory the impugned order of supersession was issued and there is no question of taking action with mala fide intention by the respondent authorities in issuing such order. Ms. Deka, learned Addl. Sr. Govt. Advocate further submits that there is a provision for filing appeal under Section 89(2) of the Act against the order passed by the respondent-Registrar. Ms. Deka, learned Addl. Sr. Govt. Advocate further submits that there is a provision for filing appeal under Section 89(2) of the Act against the order passed by the respondent-Registrar. The present petitioners did not prefer any appeal against the said impugned order of supersession and in absence of such appeal from the petitioners, there is no scope for review of the aforesaid impugned order. 10. I have examined the provision under Section 89(2) of the Act which provides for filing an appeal against the order passed by the Registrar within 60 days from the date of issue of such order before the State Government. The said period of 60 days has already expired long back. However, under Section 121 of the said Act, it is provided that an appeal filed after expiry of specified period may be entertained by the appellate authority by condoning the delay on showing sufficient cause. Mr. Son, learned Counsel for the petitioners submits that the petitioners would like to prefer an appeal against the impugned order of supersession, if this Court allows them to do so with the direction to the appellate authority to condone the delay in preferring the appeal beyond the period of limitation. 11. I have considered the rival submissions made by the learned Counsel for the parties. In my considered opinion, the show-cause notice dated 18th December, 2007 served to the managing director of the Society was not sufficient to inform the Chairman or the other elected members of the BODs about the allegation of financial irregularities and other mismanagement allegedly committed by the BODs. Similarly, the show-cause reply submitted by the managing director without being authorized by the members of the BODs or without its approval cannot be equated with the show-cause reply to be submitted by the Chairman or the BODs of the Society and as such, the impugned order of supersession cannot be held to be legally valid or sustainable under the law. 12. It is not understood as to what prevented the respondent authorities from issuing show-cause notice to the Chairman or the members of the BODs asking them to reply on the alleged mismanagement or mis-utilization of fund and other financial irregularities against the Society. 12. It is not understood as to what prevented the respondent authorities from issuing show-cause notice to the Chairman or the members of the BODs asking them to reply on the alleged mismanagement or mis-utilization of fund and other financial irregularities against the Society. Since the petitioners have expressed their willingness to prefer an appeal before the State Government, I deem fit and proper to allow the petitioners to prefer such appeal before the Government within a period of one week from today and on receipt of such appeal from the petitioners, the respondent No. 2, Secretary (Co-operation), Govt. of Arunachal Pradesh shall entertain the appeal by condoning the delay and dispose of the same by passing a speaking order within a period of 45 days from the date of receipt of the appeal from the petitioners. 13. It is made clear that the observations made above by this Court shall not in any way influence the appellate authority in making its consideration and disposal of the appeal to be preferred by the petitioners. The question of allowing the respondent No. 4 to continue as Administrator of the Society is left with the wisdom and domain of the Government. 14. With the above observations and directions, this writ petition stands disposed of. No order as to costs. Petition disposed of.