THAKUR SINGH BHARMAURI Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) These writ petitions are dealt with together since they involve one and the same matter, issues arising also being common and the learned Counsel's common submissions also. C.W.P. No. 439 of 1998.

(2.) This writ petition has been filed for a writ of prohibition to the respondents not to hold the meeting as proposed on 4.7.1998 for the purpose mentioned in the letter dated 25.6.1998 filed as Annexure P-7 and also to quash the letter dated 25.6.1998 and as a consequence thereof to restrain the respondents from removing the petitioner from the chairmanship of the Himachal Pradesh State Co-operative Wool Procurement and Marketing Federation Ltd.. Shimla-9 (hereinafter referred to as the Federation) and thereby allow the petitioner to complete his tenure of four years from the date of his election as Chairman. The further relief sought for was to quash the nominations made to the Board of Directors of the Federation by the proceeding dated 27.3.1998 and 6.4.1998 filed as Annexures P-5 and P-6 respectively. The case of the petitioner is that the petitioner was elected as Chairman of the Federation in question in the special general meeting of the members held on 1.12.1994 that in accordance with the provisions of the Act. the rules and the bye-laws governing the same under Rule 38 of the H.P. Co-operative Societies Rules. 1971 (hereinafter referred to as the Rules), made under the H.P. Co-operative Societies Act. 1968 (hereinafter referred to as the Act), the term for which the Managing Committee of the apex society would be entitled to be in office is four years and the outgoing Managing Committee shall, unless the State Government otherwise directs, continue to function till another Managing Committee is constituted under the rules. The petitioner also claims that he was a Member of the H.P. State Legislative Assembly from Bharmour since December 1993, that he was sponsored from the Congress party to be its candidate from the said constituency though he ultimately lost the election and it was declared so on 6.6.1998, that the petitioner under a mistaken belief had tendered resignation from the chairmanship of the Federation before filing his nomination papers, thinking that the Chairman of the Federation is an office of profit though factually it is not so and the resignation was accepted by the Government of Himachal Pradesh in their Notification No. Ahy-F(l0) 6/90 II. dated 31.1.1998. It is contended that in law the State Government. the first respondent, is not competent to accept the resignation of the petitioner from the chairmanship of the Federation and the same can be accepted or rejected only by the Board of Directors alone and in view of the same the petitioner claims to have submitted a letter dated 16.3. 1998 to the State Government withdrawing the resignation submitted under the mistaken belief and further on that basis asserted the claim that he continues to work as Chairman of the Federation. A meeting of the Board of Directors of the Federation was said to have been called by the 3rd respondent to be held on 27.3.1998 for which proper notices are claimed to have been sent to all members to discuss the matter in connection with the resignation of the petitioner from the chairmanship of the Federation in which it is further claimed six members including the petitioner were present and a resolution was adopted therein to the extent that the resignation of the petitioner accepted by the Government was not in consonance with the spirit of the bye-laws and the rules and. therefore. the petitioner may, therefore. continue as Chairman of the Federation. By making such a claim. an assertion is made by the petitioner that he was working as Chairman of the Federation without ciemur. According to the petitioner, the Congress party to which the petitioner belongs could not get majority in the Legislative Assembly. but the Bhartiya Janata Party with the Assistance of Himachal Pradesh Vikas Congress has formed the Government in March 1998 and that after such formation of the Government the ruling party allegedly started eroding the democratic set-up of the various Boards/Corporations by removing the Chairman/Vice-Chairman of some of the Corporations/Board, and in order to achieve such aims and goals the respondents were said to have issued the notification dated 27.3.1998 appointing the Additional Registrar Co-operative Societies till then working as General Manager as the Managing Director of the Federation. By yet another notification dated 27.3.1998 the second respondent was said to have nominated four Government nominees to the Board of Directors of the Federation and removed Shri Manoj Kumar and Shri Luder Chand Thakur without any lawful reason but only because they were the supporters of the petitioner. By yet another proceeding dated 6,4.1998 of the 2nd respondent again nomination of two more members to the Board of Directors of the Federation was said to have been made and it is claimed that the action of the respondents in removing two non-official members from the list of Board of Directors for nominating four official members to the Board in their notification dated 27.3.1998 and inducting two other non-official members by the proceeding dated 6.4.1998 is stated to be a calculated move on the part of the respondents to remove the petitioner from the chairmanship of the Federation and those nominations were against law. It is also stated in this regard that the nomination made as aforesaid had the effect of enhancing the number of the Board of Directors in violation of the provisions laid down by clauses 9, 9.1 and 9.2 of the bye- laws of the Federation and this is said to be a serious infirmity. A further allegation is made by the petitioner that subsequent to the said illegal appointment and nomination to the Board of the Federation on the instructions from those in the top, a letter dated 25.6.1998 came to be issued to consider the question about the resignation tendered by the petitioner from the chairmanship and hold election to the post of Chairman of the Federation on 4.7.1998. It is at that stage the petitioner has come up with this writ petition seeking for the relief, as noticed supra.

(3.) When the matter came before the Court on 7.7.1998 on the representation made that one Kartar Singh was elected as Chairman of the 3rd respondent Federation, he was ordered to be impleaded as respondent No. 4 to the proceeding and notice was issued in the writ petition and the C.M.P. came to be disposed of as infructuous in view of the election of the 4th respondent as Chairman. The 1st and 2nd respondent filed a common counter- affidavit contending that there is no requirement stipulated under the provisions of the Act or the Rules or the bye-laws governing the respondent Federation for acceptance of resignation of the Chairman by any authority, that in terms of bye-law 10.4 of rhe respondent Federation, a Director shall ex post facto cease to hold office of the Director as soon as he resigns from his office and there is no provision for acceptance of his resignation and if the Chairman relinquishes his office on his own his resignation shall be deemed to be effective from the date of his resignation and he ceases to be the Chairman of the Board with immediate effect, and consequently no further action need be taken on the resignation by any authority under those circumstances, pointing out that the petitioner voluntarily relinquished his office on 28.1.1998 and since no action further was called for on his unilateral relinquishment of his office as Chairman which became effective from the date of his resignation, it is contended that the petitioner ceased to be the Chairman of the Federation in question and, therefore, he has no right to stake his claim for the office and the writ petition is liable to be dismissed for the said reason alone. It is contended that the petitioner having failed to avail of the alternative remedy available under Rule 38(6) of the rules read with Section 72(2)(c) of the Act, the writ petition is liable to be rejected as not maintainable and the proper remedy for deciding the disputed questions of fact and law would be the one provided under the Act. It is also contended that in the absence of a valid resolution authorising the petitioner to file the writ petition, the petitioner cannot claim himself to be the Chairman of the Federation and file this writ petition. It is the further plea on behalf of these respondents that no writ can lie against the Managing Director of the Federation in taking a decision to convene special meeting of the Board of Directors for 4.7.1998 and on this ground also the writ petition is liable to be dismissed. There is no controversy that the petitioner has been elected as the Chairman of the respondent Federation in its meeting of the Board of Directors on 1.12.1994 and in normal course he had a term to serve, f not otherwise brought to an end. up to 30.11.1998. While placing reliance on Rules 35 and 38 of the rules which deal with the Constitution of the Managing Committee which would be the same as the Board of Directors, it is contended that all nominated/appointed members under sub- clauses (b), (c) and (d) of Rule 38 are also eligible to cast their votes in the election oi the Chairman/Vice-Chairman in view of Rule 39(2) and Rule 59 of the Rules. While adverting to the fact that the petitioner submitted his resignation and relinquished the office on 28.1.1998 which was notified on 31.1.1998, though not strictly required in view of bye-laws No. 10.4 as per which the Chairman erases to be the Chairman of the Federation from the date his resignation itself and the further fact that he remained quite satisfied with the acceptance of the resignation, it is stated that he attempted to become the Chairman by using improper procedures and causing chaos in the administrative functioning of the respondent Federation. These respondents further state that the so-called meeting said to have been held on 27.3.1998 does not. disclose under whose chairmanship the meeting was convened and in the absence of any election Chairman to preside over the meeting to which only a few selected members owing allegiance to the petitioner appear to have been invited, no notice was sent to the nominated members of the Board more particularly to the 2nd respondent whose office is situated within 100 yards from the office of the Federation. Since the said meeting was convened for 27-3.1998 and the State Government made new nominations of the Board of Directors of the Federation such convening of the meeting in haste without following the procedural formality must be viewed to have been with achieving some ulterior motive and that the business said to have been transacted in the said meeting has no legal basis. While disputing the right of the petitioner to convene any meeting of the Board after relinquishing the office of the Chairman of the said Federation, it is stated that no notice for any such meeting was issued by the General Manager and the notices are claimed to be issued under the signatures of the Private Secretary who has no right or competence to issue such notices for the meeting and that too to only the seven Directors out of eleven Directors, has no validity in law. The allegation regarding the ruling party allegedly influencing through the various authorities to erode the democratic set-up of various organisations has been denied stoutly. The right of the State Government to appoint the Managing Director in exercise of its powers under Section 35-B of the Act, is asserted by these respondents. While adverting to Section 35(2) of the Act the State Government's right to replace the existing nominated members on the Board of Directors of the Federation is reiterated and it is also stated that the name of the General Manager has been withdrawn by the State Government from the notification dated 27.3.1998 by issuing another notification dated 15.7.1998 for the reason that the right to nomination by the State Government is only up to three members of the Board vide Section 35(l)(a)(iii) of the Act. Equally, it is asserted that in terms of Rule 39(1-A) of the rules the second respondent is entitled to appoint two additional members of the Board of the respondent Federation and that the appointment of Kunti Devi and Karam Singh to represent the proper interests of women and Scheduled Caste is also sought to be justified. It is also contended that the petitioner has no locus standi to challenge the withdrawal of two official members from the Board and inasmuch as the Constitution of the Board of Directors is with five elected members, three nominated members under Section 35 of the Act. two nominations of the Registrar under Rule 39 and the appointment of Managing Director in terms of Section 35-B, the strength of the Board at 11 is in consonance with Bye-law No. 9.1. Reliance is placed on Rule 39 to assert that the two nominations under the rules shall be made notwithstanding any limit prescribed in the bye-laws of the co-operative societies. Relying upon bye-law 12.2(XV), the Managing Director is said to be fully competent to convene the meeting of the Board of Directors of the Federation and there is no need for his getting any approval of the Chairman before such convening of the meeting envisaged under Rule 48 of the rules. It is pointed out that the petitioner also was at liberty and was not debarred from contesting the election of the Chairman of the Federation on 4.7.1998 and knowing well that he no longer enjoyed the confidence of the majority of the Board members he did not offer himself as a candidate for the election in the meeting for which proper notice had been sent to all the Directors including the petitioner. It is also stated that the petitioner deliberately chose not to take part in the meeting though was said to have remained present in the adjoining room to keep himself apprised of the developments relating to the election of the new Chairman. It is also stated that in the special Board meeting held on 4.7.1998 which was attended to by 9 out of 11 Directors of the Board the 4th respondent was unanimously elected as the new Chairman of the respondent Federation and consequently it is prayed that the writ petition may be dismissed.