Madhya Pradesh High Court
Zila Sahakari Krishi Aur Gramin Vikas ... vs Phool Singh Tandeshwar And Ors. on 18 December, 2003
Equivalent citations: 2004(1)MPHT266
Author: Dipak Misra
Bench: Chief Justice, Dipak Misra
JUDGMENT Dipak Misra, J.
1. The factual matrix, the substratum of the scenario, the edifice built, the fulcrum of grounds urged, the gravamen of canvassment and the bone of proponement being same the present batch of appeals preferred under Clause 10 of the Letters Patent questioning the correctness of the order dated 13-2-2003 passed by the learned Single Judge was heard analogously and is decided by this common order. It is condign to state at the very outset that the appellant-Bank in different writ petitions assailed the orders passed by the Joint Registrar, Co-operative Societies under certain provisions of the M.P. Co-operative Societies Act, 1960 (hereinafter referred to as 'the Act') knocking at the doors of this Court under Article 226 of the Constitution of India. The learned Single Judge keeping in view the factual exposition, main thrust of law, decided the matter by a composite order.
2. Sans unnecessary details the requisite facts which warrant adumbration are that as Zila Sahakari Krishi Aur Gramin Vikas Bank Maryadit (in short 'the Bank') could not hold its election within the stipulated period it was superseded and the Joint Registrar, Co-operative societies, in exercise of the power conferred on him under Sub-section (8) (ii) of Section 49 of the Act appointed the Collector, Mandla, as officer-in-charge of the Bank and directed him to manage the affairs of the Bank till the elections were held. The aforesaid order was passed on 15-2-1997. After being so appointed the Collector, Mandla, vide order dated 3-3-2000 passed orders compulsorily retiring certain employees of the Bank in exercise of power vested in him under Rule 71 (1) of M.P. Sahakari Krishi Aur Gramin Vikas Bank Karmchari Seva (Niyojan, Nibandhan Tatha Unki Karya Sthiti) Niyam, 1983 [in short 'the 1983 Rules'].
3. Being aggrieved by the aforesaid orders the employees/respondents instituted disputes under Section 55 (2) of the Act before the Joint Registrar, Co-operative Societies who found that the orders compulsorily retiring the employees were not approved by the Registrar which was necessary and as a logical corollary, he set aside the orders passed against the employees and directed their reinstatement. Being dissatisfied by the aforesaid orders the bank preferred various writ petitions as has been indicated earlier.
4. Before the learned Single Judge it was contended by the Bank that the employee who had attained the age of 50 years or completed 20 years of service was liable to be retired without ascribing any reason on serving three months notice or in lieu thereof, extending the benefit of payment of three months salary and as the rule in question authorises the officer-in-charge to take action in this regard, the finding of the Joint Registrar that there had been no approval from the Registrar, is absolutely flawed which makes the order sensitively susceptible. It was also propounded before the learned Single Judge that if Sub-section (8) (ii) of Section 49 of the Act is conjointly read with subsection (13) of Section 53, it would be quite vivid and luminescent that the officer-in-charge has been empowered to exercise all or any of the powers and to discharge all or any of the functions of the Committee or of the officer of the society, the only rider being the paramount interest of the society, his action should have been regarded as valid by the Joint Registrar and should not have been lanceted on the ground of lack of approval as such approval is not warranted under any provision of the statute.
5. On behalf of the respondents it was canvassed that prior approval was necessary if the scheme of the Act is scanned properly and the anatomy of the provision contained in Sub-section (4) of Section 53 is X-rayed in proper perspective. It would be clear as day that such officer appointed by the Joint Registrar has limited jurisdiction and can not act as he desires. Certain decisions were pressed into service before the learned Single Judge. The learned Single Judge referred to various provisions of the Act and the decisions cited before him and came to hold that the order of the officer-in-charge removing the employees by way of compulsory retirement was unsustainable and accordingly, he gave the stamp of approval to the order passed by the Joint Registrar.
6. Assailing the order of the learned Single Judge it it submitted by Mr. R.P. Agrawal, learned Senior Counsel for the appellant that the learned Single Judge has fallen into error by coming to hold that prior approval is a pre-requisite and condition precedent for passing an order of compulsory retirement in respect of an employee by the officer-in-charge. It is contended by him that the language employed under Section 53 (13) of the Act does not contain any kind of prohibition and, therefore, reading such a concession to it does not deserve acceptance. It is canvassed by him that when the Committee had been superseded all the powers of the Committee vested in the officer and when there is no specific rider for obtaining prior approval the same can not be interred from any provision. It is his further submission that the reliance placed by the learned Single Judge on the decisions rendered in the cases of The Gwalior District Co-operative Central Bank Ltd., Gwalior v. Ramesh Chandra Mangal and Ors., AIR 1985 SC 337 and Govind Arya v. State of M.P. and Anr., AIR 1985 MP 34, is unsound as the ratio laid down therein do not apply to the facts of the present case inasmuch as in both the decisions the matter was related to 'delgatur non potest delegare'. It is also putforth by Mr. Agrawal that the respondents in each case were involved in financial indiscipline as a consequence of which the Bank has suffered immense loss and it has shattered the financial backbone of the society and if the respondents are allowed to remain in service more harm would be caused to the society and ultimately it would pave the path of unavoidable destruction.
7. Mr. R.K. Gupta, learned Senior Counsel appearing for the respondent No. 1 sounding a contra note, proponed that if the scheme of the Act is scrutinised in proper perspective it would be clear as day that though the officer-in-charge assumed the power of the Committee he does not have the absolute power in the view of the terms used under Section 53 (4) of the Act and if such power is vested in the officer-in-charge the purpose of the Act would be frustrated and the Registrar who has a specific positive and purposive role would become ceremonial figure which is not contemplated in the statute. It is canvassed by him that the order of compulsory retirement has been passed without following the due procedure of law and it is in flagrant violation of the procedure, the procedural ultra vires occurred is incurable and creates a dent in the basic marrow of jurisdiction.
8. To appreciate the rival submissions raised at the Bar it is relevant to refer to the definition of Registrar occurring in Section 2 (x). It reads as under:--
"2 (x). "Registrar" means the Registrar of Co-operative Societies appointed under Section 3." ;
In view of the aforesaid dictionary clause it is necessitous to reproduce Section
3. It reads as under:--
"3. Registrar and other officers.-- (1) The State Government shall appoint a person to be the Registrar of Co-operative Societies for the State and may appoint one or more officers of the following categories to assist him, namely :--
(a) Additional Registrar of Co-operative Societies;
(b) Jpint Registrar of Co-operative Societies;
(c) Deputy Registrar of Co-operative Societies;
(d) Assistant Registrar of Co-operative Societies;
(e) Such other categories of officers as may be prescribed.
(2) The officers appointed to assist the Registry shall, within such areas as the State Government may specify, exercise such powers and perform such duties conferred and imposed on the Registrar by or under this Act as the State Government may, by specifial or general order, direct; (3) The officers appointed to assist the Registrar shall be subordinate to him and shall work under this general guidance, supervision and control."
9. At this juncture it is also relevant to refer to Section 49-D which reads as under :--
"49-D. Registrar's power to give directions to make regulations.-- (1) If the Registrar is of the opinion, that, having regard to the financial condition of the society and financial interest of Government therein, it is necessary to regulate the manner of carrying on its trade or business, he may, subject to any rules made in this behalf, direct such society to make regulations in that behalf and forward them to him for approval.
(2) On receipt of the regulations made by the society, the Registrar may approve them with or without modifications. On approval of such regulations, the society shall carry on its business in accordance with regulations.
(3) If any society fails to forward such regulations to the Registrar when directed by him under Sub-section (1) within a period of three months from the date on which the direction is given, the Registrar shall himself make or cause to be made such regulations and require the society to carry on its business in accordance with such regulations and thereupon the society shall be bound to comply with such requirement."
Section 53, to which we shall refer in detail at a later stage, empowers the Registrar to pass an order in regard to supersession of Committee. Section 53-B confers power on the Registrar to remove an officer of a society in certain circumstances. Section 55 empowers the Registrar to determine conditions of employment in societies. Section 56 deals with Registrar's power to enforce performance of obligation. Section 57 of the Act enables the Registrar to seize records etc. and Section 57-A authorises him to take possession of record and property. Section 58 which occurs in Chapter VI enables the Registrar to conduct the audit. Section 64 stipulates that disputes shall be referred to the Registrar. Section 66 deals with settlement of dispute and also carves out the role of the Registrar. We have referred to the aforesaid provisions only to highlight that throughout the scheme of the Act the Registrar has been given a specific role. True it is the aim is to organise and develop co-operatives as* democratic instruments and people's institutions based on self help, and mutual aid, and for curbing exploitation and ensuring socio-economic development of people with particular emphasis on weaker sections of the society but the Legislature in its wisdom at certain stages thought it fit to appoint certain watch dogs so that the affairs of the societies do not go disarray.
10. At this juncture, we may refer with profit to the certain provisions occurring in Chapter V of the Act which deals with the management of the societies. Section 48 postulates that the final authority in a society shall vest with the general body of members. Section 48-B provides for representatives and delegates. Section 48-C envisages powers of the Committee. The Committee has been conferred with certain powers. The said provision was brought into effect on 22-6-1995 by M.P. Act No. 22 of 1995. The. said provision makes it clear that the power which is enjoyed by the society would be exercised in accordance with the provisions of the bye-laws of the society and in a way the powers are not exhaustive. At this stage we think it appropriate to refer to Section 49 (8) (ii) which reads as under :--
"49. (8) (ii) If the Committee fails to hold election and has not handed over the charge on expiration of the term, under subsection (7-A) or extended term under Sub-section (7-AA) to the Registrar or any officer authorised by him on his behalf, all the members of the Committee shall be deemed to have vacated their scats and the Registrar shall assume charge and hold election as early as possible."
The aforesaid provision enables the Registrar to assume charge. It is not in dispute before us that the Committee did not conduct the election within the time frame and, therefore, the aforesaid provision came into play. Once the said situation emerged Section 53 which deals with the supersession of the Committee gets attracted. Section 53 (1) (c) enables the Registrar to remove the Committee and appoint a person/persons to manage the affairs of the society. Sub-section (3) of Section 53 postulates that the period specified in the order under Sub-section (1) may at the discretion of the Registrar, be extended from time to time. At this juncture it is condign to reproduce Section 53 (4) as it is vital for the present litigation :
"53. (4) The person or persons so appointed, shall subject to the control of the Registrar and to such instructions as he may, from time to time, give, have power to exercise all or any of the powers and to discharge all or any of the functions of the Committee or of any officer of the society, and to take all such actions, as may be required in the interest of the society."
11. Mr. Agrawal has commended us to Sub-section (13) of Section 53. To appreciate his submissions it is seemly to reproduce the same:
"53. (13) Notwithstanding anything contained in this Act, or rules made thereunder or bye-laws of society, if the committee of society ceases to function due to order of any Court or otherwise, the Registrar may appoint a person or Committee of persons temporarily till the Court order is vacated or the new elections are held and the Committee takes charge."
12. The fulcrum of the submissions of Mr. Agrawal is that the Registrar can appoint a person and when an officer-in-charge has been appointed he has the full power of the Committee and the committee enjoys numerous powers under Section 48-C and the officer functioning as deemed committee is not require to have any kind of sanction or permission or approval of the Registrar before passing any order. The aforesaid submission is really to be tested as contended by Mr. Gupta on the touchstone of Sub-section (4) of Section 53 of the Act. In the said provision the terms 'subject to control of Registrar' and 'subject to instruction as he may, from time to time gives' are used. The aforesaid words can not be allowed to exist in a vacuum. They have a specific purpose. They have their own relevance and sanguinity. We have already indicated that the Registrar has a definitive role in the scheme of the Act. The life span of the Committee got extinct because of its folly and then the Registrar assumed the charges and appointed a person to manage the affairs of the society as the Registrar can not do every act on his own but, the Legislature in its wisdom has not divested the Registrar of all powers and accordingly engrafted Sub-section (4). The key words are 'subject to control'. Recently in the case of M. V. Shankar Bhat and Anr. v. Claude Pinto (D) L.Rs. and Ors., 2003 AIR SCW 6216, the Apex Court had the occasion to deal with the term 'subject to'. In Paragraph 32 of the judgment Their Lordships referred to the dictionary meaning of the term and stated thus:--
"32. The word 'subject to' has been defined in Black's Law Dictionary, Fifth Edition, at page 1278, inter alia, as "subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for". In Collins' English the words 'subject to' has been stated to mean as "under the condition that: we accept, subject to her agreement."
13. At this juncture, we think it fit to refer to the decision rendered in the case of Gauhati High Court and Anr. v. Kuladhar Phukan and Anr., (2002) 4 SCC 524. In the aforesaid decision the Apex Court adverted to the meaning of the word control occurring under Article 235 of the Constitution of India. In that context Their Lordships said that the word 'control' has been used in a comprehensive sense and includes the control and superintendence of the High Court over the subordinate Courts and the person manning them both on the judicial and the administrative side.
14. We have referred to the aforesaid decision only to show the significance of the term 'control' under Sub-section (4). The word 'control' has been used with a purpose by the Legislature. The power of the Registrar over the persons appointed is not lost. In addition, there is also use of the term 'subject to such instruction which are to be issued by the Registrar from time to time'. The aforesaid words are to be read in the context. It is well settled in law that the words in the statute take colour from the context and the context in which they are used. The words can not be taken out of context. In this regard we may profitably refer to the decision rendered in the case of Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., (1987) 1 SCC 424. In the said case it has been held as under:--
"33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted."
15. In this regard we may refer with profit to the decision rendered in the case of District Mining Officer and Ors. v. Tata Iron and Steel Co. and Anr., (2001) 7 SCC 358, wherein the Apex Court observed thus :---
"18....... A statute is an edict of the legislature and in construing a statute, it is necessary to seek the intention of its maker. A statute has to be construed according to the intent of them that make it and the duty of the Court is to act upon the true intention of the legislature. If a statutory provision is open to more than one interpretation, the Court has to choose that interpretation which represents the true intention of the legislature."
16. In view of the aforesaid enunciation of the law we are impelled to hold that the officer appointed is subordinate to the Registrar and can not assume the role of Registrar in entirety. He has the statutory obligation to act subject to control of the Registrar. He can not be allowed to act like an unruly person. True it is, he is the delegatee but the statute does not permit total delegation. The power of the Registrar has not been taken away. The role of the Registrar does not stand ostracised. In fact, the person so appointed has power to exercise all or any of the power and to discharge all or any of the functions of the committee and to take any action in the interest of the society subject to control of the Registrar and subject to such instructions he may give from time to time. If the language of the aforesaid provision is understood in proper perspective we are disposed to think that the role of the Registrar by any stretch of imagination can not be marginalised and, therefore, concurrence or approval of an order of termination of the employee of the society by the Registrar is not only necessary but also essential. It is pre-requisite and condition precedent. Thus, we have no hesitation in holding that the learned Single Judge has correctly held that the prior approval of the Registrar was imperative before officer-in-charge could give effect to the order passed by him.
17. Though we have affirmed the conclusion reached by the learned Single Judge in this regard yet we are inclined to state that one aspect requires modification. The learned Single Judge affirmed the order of the Joint Registrar, Co-operative Societies who has set aside the order of officer-in-charge and directed reinstatement of the employees. We have been apprised at the Bar that there has been an order of stay operating against the employees. It has been submitted by Mr. Agrawal that the society has been suffering from enormous financial crunch and if it is compelled to take back the employees with all consequential benefits their suffering would be colossal and may result in the extinction of the society. Considering the aforesaid submission we are inclined to direct that the employees shall be reinstated in service but they shall only be entitled to 25% of the backwages from the date of the order passed by the Joint Registrar.
18. The L.P. As. are accordingly disposed of. In the peculiar facts and circumstances of the case there shall be no order as to costs.