JAGADISH CHOWDHURY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) A notice for expulsion of the petitioner was issued by the Co-operative Society, to which he had submitted a reply. The reply having been unsatisfactory, an enquiry was initiated in which the petitioner was expelled from the membership. Admittedly the petitioner was a worker-member. By reason of such expulsion from membership he was also deemed to have been removed from service and that was the intended purpose of the expulsion, as is contended on behalf of the respondentCo-operative Society. The petitioner raised a dispute under Section 95 before the Arbitrator who had passed an award directing the petitioner to appeal against the expulsion order to the general body. An appeal has since been filed by the petitioner before the Tribunal challenging the award. In the absence of one of the members of the Tribunal, the Tribunal is not functioning. At this stage the petitioner approaches this Court for appropriate orders with regard to the question of removal from service.

(2.) Mr. Milan Bhattacharjee, learned Counsel appearing on behalf of the petitioner contends that the expulsion of the membership cannot be equated with removal from service. The petitioner being a paid employee he could not be removed from service simply by adopting a procedure for expulsion from membership. According to him the removal from service can be effected only in terms of proviso to sub-section (10) of Section 27 of the Co-operative Societies Act, for which a proceeding under Rule 108 is to be initiated. According to him the service of the petitioner is distinctly separate right from that of his membership though he may be a worker-member of the Society. Therefore, expulsion from membership cannot result into termination of service.

(3.) The learned Advocate appearing on behalf of the respondents contends that there are two kinds of members in the Society; one are paid employees who are not members and the other are member-workers. The petitioner is a worker by virtue of membership. Therefore, there is no existence of his entity except that of a member, by virtue whereof he is a worker of the Society. Therefore expulsion from membership would amount to his expulsion from the Society with whatever right he could have, since he was a member-worker. The alleged distinction sought to be made by Mr. Bhattacharjee, according to the counsel for the respondents is irreconcilable and fallacious. Then again according to him the petitioner had submitted to the jurisdiction by resorting to Section 195 of the Act challenging the order of expulsion of membership resulting into removal from service. Thus he had admitted the situation. He cannot now turn around and raise a different question before this Court. He had referred to the provisions of sub-section (10) of Section 27 to contend that by reason of being worker-member, he could be permitted in the board because of the provision provided thereunder, otherwise he could not have been a member of the Board. Relying on the subject, as mentioned in the Memorandum of Association, he contends that primary membership lies with the workers of the Society and therefore there could not be a dual entity of the member having two capacity namely one is worker and other is member. It combines in one and there is but one entity and that is of worker. Thus according to him expulsion from membership would amount to removal from the service of the Society itself. Therefore, the petitioner has a remedy of preferring an appeal before the General Body. At the same time, he also refers to sub-rule (15) of the Rule 108 of the Co-operative Societies Rules and contends that even against the order of removal he has a right to prefer an appeal before the General Body. The award having been passed directing the petitioner to prefer appeal before the General body, the petitioner could neighter maintain the appeal before the Tribunal and nor could maintain this petition. He alternatively argues that the petitioner could not have approached the arbitrator under Section 95 of the Act with regard to the termination of service which was a dispute outside the scope of Section 95. He ought to have approached the Industrial Tribunal. At the same time he contends that he having submitted to the jurisdiction he cannot raise these questions before this Court. Therefore the petitions should fail.