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2010 Supreme(Gau) 786
IN THE HIGH COURT OF GAUHATI
Biplab Kumar Sharma, J.
Kiran Kakati - Appellants
Vs.
State of Assam and Ors. - Respondent
WP (C) Nos. 3147 and 3588 of 2010
Decided on : 01.10.2010
For Appellant/Petitioner/Plaintiff: I. Choudhury, P.N. Goswami and N.J. Khataniar, Advs.
For Respondents/Defendant: U. Bhuyan, A. Hazarika, R. Chokraborty, H.M. Phukan and R.K. Borah, Advs.
Headnote:
Assam Cooperative Societies Act, 1949 - Section 39(B)(B)(1) and 80 - Petitioner was elected as the chairman in the annual general meeting - Petitioner is aggrieved by his removal from the Chairmanship of State Cooperative Union by the impugned order - State Cooperative Union which is a State Cooperative Union is primarily concerned with the promotion and development of the cooperation movement in the State - Held, In the instant case, based on facts, the appeal was preferred urging the substantial question of law - Plea of illegal participation of the representative of the District Cooperative Unions including the participation of the Petitioner in the AGM/election, being violative of the relevant law, cannot be entertained on the ground of being based on facts, if accepted, then in that case a situation will arise in which the actions/inactions contrary to the law and the rules holding the field, can never be put to challenge, although same may give rise to substantial question of law - Provisions of Section 80(3) of the Act has been made to advance the cause of justice and not to thwart or inject the aggrieved person, no matter, gravity of illegality/irregularity committed by the members of the Cooperative movement - If such plea is allowed, an appeal under Section 80(3) of the Act will always be avoided on the ground of being involved with disputed questions of fact - Petition dismissed.
B.K. Sharma, J.
1. Both the writ petitions being inter-connected have been heard analogously and are disposed of by this common judgment and order.
Facts involved in WP(C) No. 3147/2010
2. In this writ petition the Petitioner is aggrieved by his removal from the Chairmanship of Assam State Cooperative Union by the impugned order dated 29.5.2010 (Annexure-H). The Assam State Cooperative Union ('the Union') which is a State Cooperative Union is primarily concerned with the promotion and development of the cooperation movement in the State of Assam. The said Union is managed and run by the managing committee. On expiry of the term of the earlier managing committee on 26.6.2009, the Petitioner was elected as the chairman in the annual general meeting ('AGM'), election. The proceeding of the AGM in which the election was also held electing the Petitioner as the chairman was approved by the Registrar of Cooperative Societies, Assam vide Annexure-B letter dated 1.7.2009.
3. Being aggrieved by the proceedings of the election and the results thereof, some of the members of the Society/Union made a petition dated 21.7.2009 to the Registrar for review of the approval contained in the aforesaid Annexure-B letter dated 1.7.2009. The petition was rejected by order dated 22.9.2009 against which an appeal under Section 80 of the Assam Cooperative Societies Act, 1949 was preferred to the Government of Assam in the Cooperation Department.
4. The aforesaid appeal having not been decided for a considerable period of time, the aggrieved persons invoked the writ jurisdiction of this Court by filing a writ petition registered and numbered as WP(C) No. 1885/2010. The writ petition was disposed of by order dated 19.3.2010 with a direction to dispose of the appeal within 45 days. Pursuant to such direction, the Deputy Secretary to the Government of Assam in the Cooperation Department by his order dated 12.4.2010 directed the parties including the present Petitioner to appear before the Secretary to the Government of Assam in the Cooperation Department on 20.4.2010 for hearing of the
5. When the instant writ petition was filed, the appeal was not disposed of, but in the meantime the Secretary, Cooperation Department issued a show cause notice to the Petitioner under Section 39(B)(B)(1) of the Act asking the Petitioner to submit his written statement of defence. By the said show cause notice, four charges were levelled against the Petitioner. For a ready reference the show cause notice dated 11.3.2010 is reproduced below:
Show cause notice
You are hereby required to show cause under Section 39B(1) of the Assam Cooperative Societies Act, 1949, as to why you shall not be removed from the chairmanship of the Assam Cooperative Union on the following charge based on Report submitted by Registrar of Cooperative Societies, Assam and enquiry report submitted by Jt. Registrar of Cooperative Societies.
Charge No. 1: That during your tenure as Chairman, the Assam State Cooperative Union had received a total Rs. 14,76,025 (Rupees fourteen lakh seventy-six thousand twenty-five) only from the National Coopeative Union of India towards re-imbursement of 50% of expenditure borne by ASCU for organizing various training programmes by cooperatives training centres, under the Central Sector Scheme for Cooperative Education and training of Government of India. Out of this amount received from NCUI only Rs. 2,41,000 has been recorded in cash book as "received". The rest amount Rs. 12,34,825 has not been recorded in same cash book. The Case Book in which the fund received from NCUI is recorded cannot be termed as Sub Cash book. Maintenance of three cash Books, one main and two sub Cash Books have been found to be irregular. This receipt from NCUI has not been reflected in the report of the internal auditor as placed in the general meeting. Besides, disbursement to District cooperative Unions were made in cash instead of cheque, draft in breach of financial discipline.
Charge No.
