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2008 DIGILAW 759 (GAU)

Anil Dowarah v. State of Assam

2008-10-03

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. Petitioner No. 1 is a social activist as well as a shareholder of Laruah G.P. Samabai Samittee Ltd. while Petitioner Nos. 2 and 3 are the elected members of the said samittee. On 15.9.2006 two complaints were lodged before the Inspector, Food & Civil Supplies, Dibrugarh, one by Smt. Rina Chetia and the other by Sri Makhan Sonowal, both agents under the Laruah G.P. Samabai Samittee Ltd., contending that on 13.9.2006 at about 6.30 p.m. Respondent No. 7, Chairman of the said Committee along with an unknown person visited the fair price shop belonging to the above two persons. The unknown person was introduced as Inspector of Food & Civil Supplies, Dibrugarh by Respondent No. 7, who conducted an inspection of the relevant books of accounts of the said fair price shop belonging to Smt. Rina Chetia and Sri Makhan Sonowal and as per instruction of Respondent No. 7, the Chairman. They paid Rs. 1000/- each to the said unknown person who was later known to be one Mukheswar Phukan, an Assistant Teacher of Lejai High School, Dibrugarh, Respondent No. 8 herein. The office of the Deputy Commissioner, having been received two complaints, entrusted an enquiry in regard to the truthfulness of the complaints so made to one M.K. Sonowal, Inspector, Food & Civil Supplies, Dibrugarh who submitted a detailed report to the authority on 16.10.2006. Inquiry Officer namely Sri M.K. Sonowal observed that the Chairman of Laruah G.P. Samabai Samittee Ltd., Dibrugarh, Respondent No. 7 made a confession that he along with the Respondent No. 8 had been to the shop of the complainants and made inspection therein. Institution of a criminal proceeding was suggested in the report against the Chairman of Laruah G.P. Samabai Samittee Ltd., Dibrugarh, Respondent No. 7 and also to take appropriate action in accordance with the provisions contained in Assam Co-operative Societies Act. On the basis of the said report submitted by Inspector of Food & Civil Supplies, Dibrugarh, the office of the Deputy Commissioner, Dibrugarh lodged an FIR on 13.12.2006 before the Barbaruah Police Station for taking appropriate action against the accused person. Accordingly Barbaruah P.S. Case No. 96 of 2006 under Sections419/420 IPC was registered. On the basis of the said report submitted by Inspector of Food & Civil Supplies, Dibrugarh, the office of the Deputy Commissioner, Dibrugarh lodged an FIR on 13.12.2006 before the Barbaruah Police Station for taking appropriate action against the accused person. Accordingly Barbaruah P.S. Case No. 96 of 2006 under Sections419/420 IPC was registered. But despite such registration of a case on the basis of the First Information Report lodged on 13.12.2006, the Investigating agency did not proceed with the matter for which the Petitioner along with some Ors. had to submit a public complaint before the Registrar, Co-operative Society, Assam on 17.4.2007 for taking appropriate action against the Respondent No. 7. The said public complaint was endorsed to Assistant Registrar, Co-operative Societies, Dibrugarh by the Registrar of Co-operative Societies to make an enquiry into the matter and submit a detail report immediately, but till today nothing had been done in the matter of public complaint so endorsed to the Assistant Registrar of Co-operative Societies, Dibrugarh. 2. In the midst Anr. application was submitted before the Sub Divisional Officer, Sadar, Dibrugarh by the complainants stating inter alia that they are no longer interested in the complaints and wanted to withdraw the same accordingly. The said application was placed before the appropriate authority with Anr. application filed by the complainants namely, Smt. Rina Chetia and Sri Makhan Sonowal wherein it was alleged that under duress, they filed the application for withdrawal of the complaints. It is also stated in the application that they never intended to withdraw the complaints so filed by them. 3. The Deputy Commissioner realizing the gravity of the application entrusted an Additional Deputy Commissioner to find out the truth in the matter. The Additional Deputy Commissioner so entrusted made a discreet enquiry regarding the application for withdrawal and opined that the findings of the Inspector of Food and Civil Supplies, Dibrugarh should be allowed to stand and take its own course. 4. Since the inquiry report has clearly indicated that the Chairman of the said Samabai Samittee, Respondent No. 7 deceitfully represented the Respondent No. 8 as Inspector of Food & Civil Supplies to the complainants for his wrongful gain, Registrar of Co-operative Society, Dibrugarh and his/her subordinate, Assistant Registrar, Co-operative Society, Dibrugarh ought to have taken an appropriate action against the Chairman, the Respondent No. 7. The inaction on the part of the Registrar, Co-operative Societies, has exhibited the evil design of Respondent No. 7, an elected member of the society. It is alleged that continuance of Respondent No. 7 as Chairman of the Society would jeopardize the glorious history of Laruah G.R. Samabai Samittee Ltd. In the writ petition, it is further alleged that because of the highhandedness of the Respondent No. 7, the Registrar of Co-operative Society, Assam as well as Assistant Registrar of Co-operative Society, Dibrugarh have not yet taken any positive step against the Respondent No. 7 and slept over the matter at their own whims. 5. The writ Petitioners in view of the above facts have sought for a direction from this Court to the State Respondents namely Respondent Nos. 1, 2 and 3 to take a constructive action against the Respondent No. 7. 6. Arguments from the learned Counsel of either party were heard at length. 7. Mr. P.K. Roy Choudhury, learned Counsel assisted by Mr. B.K. Kar and Joy Das, learned Counsel in support of this application submitted that the manner in which the Respondent No. 7 introduced Respondent No. 8 to Smt. Rina Chetia and Sri Makhan Sonowal, both agents of Laruah G.R. Samabai Samittee Ltd., he being an elected member of the said samittee and Chairman as well is not appreciable and befitting to his status. Such introduction was made by Respondent No. 7 with an ultimate design to gain adequately through Respondent No. 8. Respondent No. 7 being the Chairman of the said Samittee asked both Rina Chetia and Makhan Sonowal to make payment of Rs. 1,000/- each to Respondent No. 8. The factum of introduction and taking of money came on to the surface from the inquiry report submitted by Inspector of Food & Civil Supplies who made an enquiry on the basis of the complaints. It was submitted further by Mr. Choudhury that Respondent No. 7 confessed that he introduced Respondent No. 8 as an Inspector of Food & Civil Supplies to Smt. Rina Chetia and Sri Makhan Sonowal. Basing on the inspection report, an FIR was lodged and a case was registered under Sections 419/420 IPC against the Respondent No. 7. But the investigating agency without making any power investigation sat over the matter without returning the matter in final form. 8. It was further argued by Mr. Basing on the inspection report, an FIR was lodged and a case was registered under Sections 419/420 IPC against the Respondent No. 7. But the investigating agency without making any power investigation sat over the matter without returning the matter in final form. 8. It was further argued by Mr. P.K. Roy Choudhury, that the inquiry report submitted by Additional Deputy Commissioner in the matter of withdrawal of the complainants under duress also speaks for that no such application was ever made at the complaints' sweet-will for withdrawal of the complaints lodged by then against the Respondent No. 7. Report submitted by Additional Deputy Commissioner is very much clear and opaque that no interference could be made in respect of the report submitted by the Inspector of Food & Civil Supplies, Dibrugarh and accordingly allowed law to take its own course. In spite of submission of two inquiry reports in respect of the activities of Respondent No. 7, neither the Registrar of Co-operative Society, Assam nor the Assistant Registrar of Co-operative Society, Dibrugarh had taken any action against the Respondent No. 7 and the matter remained stagnant without any decision. 9. Mr. Choudhury, therefore, in view of the findings of the Inquiry Officer against the Respondent No. 7 and also in view of inaction on the part of the appropriate authorities to take appropriate action against the Respondent No. 7, the writ Petitioners have approached this Court for a direction from this end to the appropriate authorities to take proper action against Respondent No. 7 as per Co-operative Societies Act and the Rules. 10. Controverting the submissions advanced by Mr. Choudhury, Mr. D.R. Gogoi, learned Counsel for the Respondent No. 7 strenuously argued that the Respondent No. 7 being an elected member of the said samittee and Chairman as well, his removal from the post cannot be made on the basis of certain allegations when the Assam Co-operative Societies Act and Rules provides some provisions for removal of the Chairman, Vice Chairman, the Secretary, any other member or office bearer or employee of a registered society. Unless some actions referred to in Section 39B are committed by the Chairman, Vice Chairman, the Secretary, any other members or office bearer or employees of a society, he/she or they cannot be removed from the office or membership. The allegations which have been brought against the Respondent No. 7, according to Mr. Unless some actions referred to in Section 39B are committed by the Chairman, Vice Chairman, the Secretary, any other members or office bearer or employees of a society, he/she or they cannot be removed from the office or membership. The allegations which have been brought against the Respondent No. 7, according to Mr. D.R. Gogoi, do not fall within the purview of the Section 39B of the Assam Co-operative Societies Act and the Rules and, therefore, the wish of the writ Petitioners that the concerned Respondent (Respondent No. 7) should be removed from his office cannot be materialized on the basis of the reports filed by the Inspector of Food & Civil Supplies or the Additional Deputy Commissioner or in view of the lodgment of the First Information Report against the Respondent No. 7. It was also argued by Mr. Gogoi that the Barbaruah P.S. Case No. 96 of 2006 which got registration on the basis of the First Information Report, is not returned in final form. Therefore, the allegations brought against the Respondent No. 7 are also not substantiated against the Respondent No. 7. Mr. Gogoi, therefore, submitted that it would not be appropriate on the part of this Court while exercising writ jurisdiction to issue a direction to the appropriate authority to take action against the Respondent No. 7. Sub-section 1, 2 and 3 of Section 39B deal with the subject of removal, suspension of the Chairman, Vice Chairman, the Secretary, office bearer, Member and employees of the registered society respectively. The office bearer, named hereinbefore can be removed, if any one of them resorts to any action referred to in Clause A to E and this office bearer/bearers also can be suspended per provision of Sub-section 2-3 on the ground of public interest. The provisions of Sub-section 2 of Section 39B would be applicable pending removal under Sub-section 1. It was argued by Mr. D.R. Gogoi that removal or suspension is possible only when any of the acts referred to in clause A to E is resorted to by the Chairman, Vice Chairman, the Secretary, Member or Office bearer of the registered society. According to Mr. D.R. Gogoi, since the allegations are brought against the Respondent No. 7 do not fall within the circumference of any of the Clauses A to E, the State Government would be very much slow to take action against the office bearer/bearers. According to Mr. D.R. Gogoi, since the allegations are brought against the Respondent No. 7 do not fall within the circumference of any of the Clauses A to E, the State Government would be very much slow to take action against the office bearer/bearers. The Respondent No. 7 being in aloof from the acts referred to in Clauses A to E, he can neither be suspended or removed from Chairmanship of the said registered society. 11. For removal of the office bearer/bearers per Sub-section 1 of Section 39B of the Act, a reasonable opportunity of showing cause should be afforded to the office bearer/bearers and such opportunity is not given, it was argued by Mr. D.R. Gogoi, it would offend the principles of natural justice. Since the allegations brought in do not fall within the purview of Sub-section 1 of Section 39Bit would be within the domain of the State Government whether to take action against the Respondent No. 7 for the alleged offence of not. According to Mr. D.R. Gogoi, no direction can be given/issued by writ court to the Government to take action against the wrong doer/doers. Mr. D.R. Gogoi, learned Counsel for the Respondent No. 7 submitted that the writ petition does not carry any merit and it is liable for dismissal. 12. The substantive law, as provided under Sub-section 1 of Section 39B of the Act, provides the provisions for removal if any of the office bearers of the registered society does any act referred to in Clauses A to E. From a careful reading of the allegations, this Court finds that it would not be covered by any of the Clauses A to E, therefore, apparently the Chairman, against whom some allegations were made and inquired into cannot result either suspension or removal from the office or membership. The allegations brought against Respondent No. 7 are entirely at a different footing. For those allegations, an FIR was lodged and a case was registered but till date, it is not returned in final form by the investigating agency. Further no direction can be made to the Investigating Agency to expedite the investigation of the case while dealing with an application under Article 226 of the Constitution since the investigating agency is to work by remaining within the parameters of the provisions of the Code of Criminal Procedure. Further no direction can be made to the Investigating Agency to expedite the investigation of the case while dealing with an application under Article 226 of the Constitution since the investigating agency is to work by remaining within the parameters of the provisions of the Code of Criminal Procedure. Perhaps the Registrar of Co-operative Society, Respondent No. 2 herein as well as Assistant Registrar of Co-operative Society, Dibrugarh was reluctant to take appropriate action under the provisions of the Assam Co-operative Societies Act and Rules against the Respondent No. 7 since the allegations are apparently not covered by Section 39B of the Act. 13. After a through enquiry in the subject and the substantive law as provided in the Act and the Rules, this Court is of view that no direction of any kind can be issued to the Respondents. This writ petition does not have any merit. 14. In the result, it is dismissed, however, with no cost.