PRABHAKAR DWIVEDI Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Ashok Khare, Senior Advocate, assisted by Sri Ajit Kumar Singh for the petitioners, Sri R.N. Singh, Senior Advocate, assisted by Sri Rajesh Tripathi for respondent No.6, Sri Sujeet Kumar Rai, appearing for respondents No.4 and 5 and learned Standing Counsel appearing for respondent No.1 to 3.

(2.) Counter affidavit as well as supplementary counter affidavit has been filed on behalf of respondents No.4 and 5 to which rejoinder affidavit has also been filed by the petitioners. With the consent of learned counsel for the parties, the writ petition is being finally decided.

(3.) Brief facts of the case as emerge from pleadings of the parties are as follows; the District Co-operative Bank Limited, Gorakhpur is a Central Society within the meaning of U.P. Cooperative Societies Act, 1965 (hereinafter referred to as the 1965 Act). The elections of the Directors of the Committee of Management of the District Co-operative Society Bank, Gorakhpur (hereinafter referred to as the Bank) were held on 5th October, 2009. The elections of the Chairman and Vice Chairman was held on 6th October, 2009 in which respondent No.6 was elected as Chairman and petitioner No.1 was elected as Vice Chairman. The three members of the Committee of Management submitted a requisition under Rule 144 of the U.P. Cooperative Societies Rules, 1968 (hereinafter referred to as the 1968 Rules) to the Secretary/General Manager of the Bank requisitioning a meeting of the Committee of Management to consider the disqualification of respondent No.6 under Rule 454 of the 1968 Rules. The allegations in the requisition letter dated 10th August, 2011 against respondent No.6 were to the effect that respondent No.6 by filling a fictitious log book of vehicle (U.P. 53 S 4575) has embezzled an amount of Rs.7.50 lacs towards rent and diesel through one Brijesh Bajpai, who is personal driver of respondent No.6. It was alleged that agreement regarding the above vehicle was made with one Yogendra Yadav whereas the owner of the vehicle with effect from 1st February, 2010 is one Shailesh Prasad Dubey who has given an affidavit to the Secretary of the Bank for not entering into any agreement with the Bank regarding above vehicle nor receiving any amount towards rent and diesel. It was further alleged that by fictitiously giving the name of the vehicle embezzlement of Rs.7.5 lacs has been made. It was also alleged that respondent No.6 has incurred disqualification under Rule 453(1)(f) of the 1968 Rules, hence meeting be called for consideration of the matter under Rule 454 1968 Rules. On the aforesaid requisition letter meeting was convened by the Secretary on 19th August, 2011 which was postponed for 9th September, 2011. On 9th September, 2011 eight members of the Committee of Management out of 14 appeared at the Bank Head Office and claimed to have passed a resolution holding respondent No.6 as disqualified under Rule 453(1)(f). It was mentioned in the resolution that respondent No.6 and Secretary did not present themselves for the meeting and proceedings were authorised to be recorded by one of the Directors which, after recording, was given to the Secretary for implementation. It is claimed by the respondents that on 9th September, 2011 another Agenda was issued by the Secretary postponing the meeting to 22nd September, 2011 under the directions issued by the Joint Registrar, Cooperative Societies, received by his letter dated 8th September, 2011. On 10th September, 2011 the Secretary made a reference to the Joint Registrar under Rule 130 of the 1968 Rules praying that resolution dated 9th September, 2011 be annulled under Section 128 of the 1965 Act. Before the three Directors gave application for requisition of meeting on 10th August, 2011, a complaint by Shailesh Prasad Dubey claiming himself to be owner of the vehicle was submitted on 31st July, 2011 to the Joint Registrar. The allegations in the complaint was that he has purchased the vehicle in the year 2008 from Yogendra Kumar, who was registered owner of the vehicle and the vehicle is being used by Shailesh Prasad Dubey and the same was never given to the Bank on rent. It was also alleged that payments were illegally taken by respondent No.6 in connivance with the driver of the vehicle. A complaint was also given by Shailesh Prasad Dubey to the Divisional Commissioner, Gorakhpur to the similar effect. The Divisional Commissioner directed the City Magistrate to inquire the complaint. The City Magistrate on 10th August, 2011 asked for a report from the Secretary of the Bank. The Secretary of the Bank submitted a report on 25th August, 2011 to the City Magistrate stating that the Vehicle No. UP 53 S 4575 is being used by the Chairman from 1st December, 2009, the payment has been made till 28th June, 2011, the log book has been filled by the Chairman and the agreement was executed by earlier Secretary O.P. Verma. It was also stated that on the application given by Yogendra Kumar on 23rd December, 2009, the rent was increased from Rs.250 to 600. It was further stated in the report that the Chairman was exerting pressure for increase of the rent which was avoided by the Secretary in the interest of the Bank. The report concluded that in withdrawal of the money there was connivance of Chairman and the Driver. On the complaint dated 31st July, 2011 which was submitted to the Joint Registrar, Cooperative Societies by Shailesh Prasad Dubey, a report was called by the Joint Registrar vide letter dated 26th August, 2011 from the Additional District Cooperative Officer of the office of Joint Registrar. A report dated 5th September, 2011 is said to have been submitted by the Additional District Cooperative Officer observing that officers and employees of the Bank have caused loss to the Bank by paying the amount of rent and diesel of the aforesaid vehicle with regard to which inquiry may be held. It was also stated in the report that no payment has been received by the Chairman regarding the aforesaid vehicle. The City Magistrate has submitted a report dated 14th September, 2011 to the Divisional Commissioner recommending for recovery of Rs.7.05 lacs which was illegally paid regarding the aforesaid vehicle and action be taken against the officer and employees of the Bank who entered into agreement in view of the denial of Yogendra Kumar regarding signing of agreement with whose signature the agreement is alleged to have been made. It was also stated that criminal case be got registered and proceedings be initiated in accordance with law. It was also stated that against those employees action be also taken who have made the payment although the vehicle was not on the spot. The report of the City Magistrate was forwarded by the Divisional Commissioner to the Joint Registrar, Cooperative Societies for appropriate action. The letter dated 16th December, 2011 has been written by the Joint Registrar in reference to the letters of the Secretary of the Bank dated 19th September, 2011 and 7th October, 2011 opining that since in the letter of the Secretary it is mentioned that meeting dated 9th September, 2011 was illegal, the resolution passed therein shall also be illegal. The Joint Registrar, however, observed that no ground is made out for annulling the resolution dated 9th September, 2011 under Section 128 of the 1965 Act.