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2016 DIGILAW 198 (GAU)

Md. Kaysor Ahmed v. State of Assam

2016-03-17

HRISHIKESH ROY

body2016
JUDGMENT : Heard Mr. M. Hussain, the learned counsel for the Petitioner in all the three cases. The contesting litigant is Abdul Hamid Choudhury, who is arrayed here as the 9th respondent and he is represented by the learned counsel Mr. I.A. Talukdar. The Registrar of Cooperative Societies and other functionaries under him are represented by Mr. JMA Choudhury, the learned standing counsel for the Cooperation Department. Ms. R. Newar, learned Govt. Advocate appears for the other State authorities. 2. In these cases, the petitioner and the 9th respondent are litigating for the post of Secretary of the East Badarpur Cooperative Societies Ltd. (hereinafter referred to as 'the Badarpur Society’) and since common arguments are advanced by the respective lawyers, this order will dispose of all the analogous cases. BACKGROUND 3. The 9th respondent Abdul Hamid Choudhury joined the Badarpur Society as a salesman on 11.5.1977 and after he gained sufficient experience, the Managing Board of the Society appointed him as the Secretary in which capacity, he served from 23.8.1981 to 4.11.2000. The Secretary went on leave on 4.11.2000 and returned back to resume his duty on 5.3.2001 but was not allowed to rejoin as the Secretary of the Badarpur Society. 4. In the meantime, during the leave period of the 9th respondent, the Managing Board adopted a resolution on 28.3.2001, whereby the writ petitioner Kaysor Ahmed was appointed as the salesman-cum-secretary in the Badarpur Society. Just before the new salesman was appointed, through an earlier resolution of 5.3.2001, a decision was taken to dismiss the then secretary Abdul Hamid Choudhury and that is how a new person was inducted in the resultant vacancy. The resolution for appointment of the petitioner as the secretary of the Badarpur Society was forwarded for approval of the Registrar of Cooperative Societies and by exercising powers conferred by the Bye Law 27 of the Badarpur Society, conditional approval was granted on 22.5.2001, to the resolution for appointment of Kaysor Ahmed, as the secretary of the Badarpur Society. 5. On 1.2.2003, the Managing Board of the Badarpur Society passed a resolution for re-induction of Abdul Hamid Choudhury (respondent No.9) as the secretary of the Society with the observation that he is the senior most employee with 23 years experience and has also served as Secretary for 12 years and his experience is needed for smooth management of the Badarpur Society. Thereafter the Registrar of Cooperative Societies passed an order on 22.12.2003, by invocation of the powers conferred under Bye Law 27, whereby, approval was accorded to appointment of Abdul Hamid Choudhury, as per the resolution adopted by the Managing Board on 1.2.2003. 6. The process of appointment of secretary to the Badarpur Society was litigated earlier in the WP(C) No.135/2004, filed by Kaysor Ahmed and the WP(C) No.1176/2004, filed by Abdul Hamid Choudhury. But through the common judgment rendered on 21.2.2006, this Court observed that neither of the writ petitioners is entitled to any relief for their respective claim and thus both cases were dismissed. 7. The two litigating parties then tried to take advantage of the analogous judgment of 21.2.2006, to interpret it to serve their respective interest. Eventually an order was passed by the Registrar of Cooperative Societies on 30.12.2006, whereby re-induction of Abdul Hamid Choudhury as the secretary of the Badarpur Society was cancelled. But the adverse order against the 9th respondent was recalled subsequently on 6.7.2009 by the Addl. Registrar of Cooperative Societies and that is how Abdul Hamid Choudhury was re-inducted as the secretary of the Badarpur Society. 8. The re-induction order was challenged in the meantime by Kaysor Ahmed through the WP(C) No. 3050/2009 and an interim order was passed by the Court on 29.7.2009, whereby entry of the 9th respondent was stayed by the Court. 9. The above interim order dated 29.7.2009, in the WP(C) No.3050/2009, facilitated Kaysor Ahmed to continue as the secretary of the Badarpur Society, as he was yet to hand over charge to the 9th respondent. But then the Chairman of the Badarpur Society passed an order on 15.10.2009, whereby Kaysor Ahmed was suspended from the post of Secretary. This decision of the Chairman is not yet approved under Bye Law 27 and therefore Kaysor Ahmed continues to function as the secretary of the Society. It may be noted that the challenge in the WP(C) No. 5782/2009 is made by Kaysor Ahmed to his suspension order dated 15.10.2009. 10. In the meantime, the Addl. This decision of the Chairman is not yet approved under Bye Law 27 and therefore Kaysor Ahmed continues to function as the secretary of the Society. It may be noted that the challenge in the WP(C) No. 5782/2009 is made by Kaysor Ahmed to his suspension order dated 15.10.2009. 10. In the meantime, the Addl. Registrar of Cooperative Societies on 15.6.2010 allowed the 9th respondent Abdul Hamid Choudhury as the senior most employee of the Badarpur Society, to function as the in-charge Secretary and that is how the WP(C) No. 3184/2011 was filed with the projection that while the interim order dated 29.7.2009, in the WP(C) No. 3050/2009 is operating in favour of the writ petitioner Kaysor Ahmed, the 9th respondent could not have been posted as the in-charge Secretary. Because of this projection, an interim order was passed by this Court on 24.6.2011 in the WP(C) No.3184/2011, whereby the functioning of the Abdul Hamid Choudhury as the in-charge Secretary, was stayed by this Court. 11. The net result of the interim orders passed by this Court in the WP(C) No. 3050/2009 and WP(C) No. 3184/2011 is that Kaysor Ahmed is currently functioning as the in-charge Secretary of the Badarpur Society. SUBMISSION AND DISCUSSION 12. Mr. JMA Choudhury, the learned standing counsel for the Cooperation Department submits that the employees of the cooperative societies are appointed by the Managing Board and the Government has practically no role in appointment or removal of employees of Cooperative Societies in Assam. The power of removal of secretary is conferred under Rule 33 of the Assam Cooperative Societies Rules, 1953 (hereinafter referred to as 'the Cooperative Rules’), to the Managing Board of the Society. The departmental lawyer reads Sub-Section (2) of Section 38 of the Assam Cooperative Societies Act, 2007 (hereinafter referred to as 'the 2007 Act’) to project that the power of appointment and removal of the secretary is conferred on the Managing Board and the Secretary as the Chief Executive of a cooperative society, is not to be treated as a Govt. servant. But nevertheless the Managing Board’s resolution for appointment/removal of a Secretary, is subject to approval by the Registrar of the Cooperative Societies, under Bye Law 27, universally applicable for Cooperative Societies in the State, as specified under Section 45 of the 2007 Act. servant. But nevertheless the Managing Board’s resolution for appointment/removal of a Secretary, is subject to approval by the Registrar of the Cooperative Societies, under Bye Law 27, universally applicable for Cooperative Societies in the State, as specified under Section 45 of the 2007 Act. But if the Registrar fails to convey his approval on the resolution within 15 days of receipt of the proceeding, the decisions taken by the Managing Board is deemed to be approved under Section 45 of the 2007 Act. 13. In Risheswar Neog vs. State of Assam reported in (1993) 1 GLR 184, this Court after examining the provisions of the Assam Cooperative Societies Act, 1949, which for the present purpose is more or less pari-materia with the 2007 Act and the 1953 Rules, declared that the appointment of Secretary and his removal from service in the Cooperative Societies are governed by Rule 33(2) and 35 of the 1953 Rules, read with Bye Law 27, which specifies the vital role of the Registrar of Cooperative Societies, in according approval to the decision of the Managing Board. Furthermore in the event of any dispute between the Secretary, who is the Chief Executive and the Managing Board, the decision of the Registrar is binding, under Section 49(2)(l) of the 2007 Act. 14. Because of the above legal provision and the ratio of the Risheswar Neog (Supra), the intervention of the Writ Court with the appointment decision of the Managing Board of a Cooperative Society may not be justified. But what is significant here is that a decision was taken by the Managing Board of the Badarpur Society on 1st February, 2003 for re-induction of the 9th respondent Abdul Hamid Choudhury and it was resolved to seek approval of the Registrar of Cooperative Societies, as needed under Bye Law 27. Subsequently the Registrar of Cooperative Societies has accorded approval to the resolution through his order dated 22.12.2003. 15. From the history of this litigation, it is apparent that the Managing Board has taken contrary decision at different points of time and it is obvious that the functioning of the Badarpur Society is affected by all such confusing resolutions. Therefore Mr. M. Hussain, as the learned counsel for the petitioner and Mr. 15. From the history of this litigation, it is apparent that the Managing Board has taken contrary decision at different points of time and it is obvious that the functioning of the Badarpur Society is affected by all such confusing resolutions. Therefore Mr. M. Hussain, as the learned counsel for the petitioner and Mr. I.A. Talukdar, as the learned counsel representing the 9th respondent jointly submit that, the Registrar of Cooperative Societies should be directed to finally decide on who should be the secretary of the Badarpur Society. This submission of the two contesting lawyers is supported by the departmental counsel, in view of the role ascribed to the Registrar under Section 49(2)(l) of the 2007 Act and the Bye Law 27 of the society. DECISION 16. In view of above submission, I feel that cause of justice would be best served if the issue of the secretaryship of the Badarpur Society is decided dispassionately by the Registrar in accordance with the above submissions made by the learned lawyers. The issue may be decided after affording hearing to all sides. To facilitate the exercise, respective representations may be filed by the contesting parties and the Registrar should give his decision with a speaking order, within three months of receipt of intimation of this order. The present arrangement on the secretaryship of the Badarpur Society will be abide by the final decision of the Registrar of the Cooperative Societies. It is ordered accordingly. 17. With the above direction, all cases are disposed of, without any order on cost.