Madras High Court
A.Janakiraman vs / on 16 September, 2019
Author: G.Jayachandran
Bench: G.Jayachandran
W.P.No.31326 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 28.11.2019 Pronounced on: 05.12.2019
Coram::
The Honourable Dr.Justice G.Jayachandran
Writ Petition No.31326 of 2018
A.Janakiraman,
S/o.Amirthalingam,,
(Member – The Railway Employees
Co-operative Credit Society Limited)
Door No.6, Plot No.18,
3rd Main Road, Sri Sakthi Nagar,
Annanur, Chennai – 600 109. ... Petitioner
/versus/
1. The Railway Employees Co-operative Credit Society Ltd.,
Represented by its Chief Executive,
Ashok Vihar Complex,
Old Zoo Road,
Chennai – 600 003.
2. N.Kanniah,
Chairman, Railway Employees Co-operative Credit Society Ltd.,
Ashok Vihar Complex,
Old Zoo Road,
Chennai – 600 003.
3. Central Registrar,
Multi State Co-operative Societies,
Ministry of Agriculture Department of Agriculture and Co-operation
Krishi Bhavan,
New Delhi – 110 001. .... Respondents
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http://www.judis.nic.in
W.P.No.31326 of 2018
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, to issue Writ of Declaration, declaring that the continuation of the
2nd respondent as Chairman and the practice of the 2nd respondent
alternating between Chairman and Vice Chairman of the 1st respondent
society is illegal and consequently direct the 3rd respondent to ensure
that the 2nd respondent demits office as Chairman/Vice Chairman and fill
the post of Chairman in the 1st respondent Society in accordance with
Section 44 of the Multi State Co-operative Societies Act, 2002.
For Petitioner : Mr.I.Nagasaila
For R1 : Mr.A.Jenasenan
For R2 : Mr.A.L.Somayaji, Senior Counsel,
for Mr.A.Jenasenan
For R3 : Mr.K.S.Jeyaganeshan
ORDER
Heard the Learned Counsel for the Petitioner and the Learned Counsel for the Respondents.
2. The Petitioner herein is a member in the Railway Employees Co-operative Credit Society Limited, which is a registered Society under the Multi State Cooperative Societies Act, 2002. His grievance is that, the 2nd respondent is holding the post of Chairman of 2/27 http://www.judis.nic.in W.P.No.31326 of 2018 the said Society since 1998, though Section 44(2) of the Multi State Co- operative Societies Act prohibits persons holding the post of the Chairmanship for more than two terms consecutively.
3. According to the petitioner, in the year 2011, the Indian Constitution was amended by inserting Article 43 B in Part IV and new Part IX B in the Constitution of India emphasising the importance of Co- operative movement and democratic function of the Co-operative Societies. The Multi State Co-operative Societies Act, governs the functioning of all Co-operative Societies that functioning in more than one state. Under section 44(2) of this Act prohibits member of the board to be eligible to be elected as the Chairperson or President of the Multi State Co-operative Society after he has held the Office as such, during two consecutive terms, whether full or part. Whereas, the 2nd respondent prior to the Multi State Co-operative Society Act came into force was the Chairman of the 1st respondent Society and holding the post till 2003. Again, in the year 2003, he was elected as Chairman of the society for a term of 5 years, which was his II-term consecutively. In the year 2008, he was elected as Vice-Chairman. The post of Chairman was left unfilled. By virtue of the amendment to the byelaw of the Society, the 2nd respondent exercised the power of the Chairman and in all 3/27 http://www.judis.nic.in W.P.No.31326 of 2018 correspondence and Court proceedings, he claimed himself as the Chairman of the Society. Again, he was elected as Chairman in the year 2013 and 2018. The spirit of the Section 44(2) is to give fair amd equal opportunity to all in the democratic process. To avoid consolidating power in one hand the prohibition of holding the top post for more than two consecutive terms has been prescribed. Further, the cooling period of one full term also emphasised in the proviso to the sub-section (2) of Section 44. Whereas, the 2nd respondent has subvert the said provision of the Act by occupying the post of Vice Chairman after his two terms as Chairman. During that period, the post of the Chairman was kept vacant deliberately so that, the 2nd respondent can exercise the power of the Chairman by default. Again, after the cooling period, he was elected for the post of Chairman. As a result, the 2nd respondent is continuously holding the post of the Chairman of the 1st respondent Society for more than 20 years in a blatant violation of section 44(2) of the Act both by letter and spirit.
4. Stating that, he is not a contestant in the Election and the statutory arbitration is not an affordable remedy, the petitioner has resort to Constitutional remedy under Article 226 to issue Writ of declaration to declare the continuation of the 2nd respondent as Chairman 4/27 http://www.judis.nic.in W.P.No.31326 of 2018 and the practise of the 2nd respondent alternating between Chairman and Vice-Chairman of the 1st respondent Society is illegal and consequentially direct the 3rd respondent to ensure that, the 2nd respondent demits Office as Chairman/Vice Chairman and fill the post of Chairman in accordance with section 44 of the Multi State Co-operative Society Act.
5. In the counter affidavit filed by Chief Executive of the 1st respondent Society, it is stated that, the petitioner has not come with clean hands. He has deliberately suppressed several past actions taken by him and his Trade union colleagues, who are also members of the 1st respondent Society. The petitioner is currently the working President of Dakshin Railway Employee’s Union. He unsuccessfully contested in the election for recognition of trade unions in Railways held in the year 2013. As such, on account of Trade Union rivalry, this Writ Petition is filed contrary to law, with false allegations and suppression of material facts.
6. According to the respondents, any election dispute ought to be agitated before the arbitrator as per section 84 of the Multi State Co- operative Society Act. Earlier, the election to the post of Chairman and Board of Directors of the 1st respondent Society was challenged and matter was referred to arbitrator by the High Court in O.P.No.165 of 5/27 http://www.judis.nic.in W.P.No.31326 of 2018 2013 and O.P.No.425 of 2013. In the said arbitration proceedings ARC No.8 of 2016 and ARC.No.2 of 2016. On 26.01.2018 it has been held that, the 2nd respondent has not violated any of the provisions of Multi State Co-operative Society Act, 2002 and its Rules for the period 2008 to 2013. Against the said finding of the arbitrator, O.P.Nos.384 and 387 of 2017 is pending before the High Court.
7. Further, a Writ Petition similar to the prayer in the present Writ Petition was filed by the Union Colleague of the writ petitioner, by name Dhanapal in W.P.No.16161 of 2013 and that Writ Petition was dismissed by the High Court of Madras on 16.09.2019. On the same point for the subsequent period, the petitioner has filed the present Writ Petition.
8. Regarding the allegation that the 2nd respondent continuously holding the post of Chairman for more than 20 years, the respondent state that, the said allegation is false, baseless and denied. The Act under section 44(2) prohibits holding the post of Chairman/President for more than two consecutive terms. It is an admitted fact, even by the petitioner that the 2nd respondent is not holding the post of Chairman for more than two consecutive terms. His 6/27 http://www.judis.nic.in W.P.No.31326 of 2018 prayer itself discloses that the 2nd respondent is alternatively holding the post of Chairman and Vice-Chairman. The Act does not prohibit such action. While so, the prayer in the Writ Petition is even on merits not maintainable.
9. In the additional counter affidavit, the respondents have extracted the Section 37 in the repealed Multi State Co- operative Society Act, 1984, which restricts members from holding the post of Chairman/President or Vice Chairman/Vice President post for more than two consecutive terms and the present Section 44 in the new Multi State Co-operative Society Act, 2002 and pointing the difference in the two sections submit that, the legislature in their wisdom have modified the restriction, imposed in the Multi State Co-operative Society, 1984 Act, in the subsequent Act of the year 2002. As such, the prayer of the petitioner that, the restriction of holding of office for two consecutive terms should include the period of Vice Chairman/Vice President is absolutely baseless, untenable and unsustainable.
10. The Learned Counsel for the Petitioner would submit that, the arbitration award referred in the counter affidavit is challenged before the Hon'ble High Court and same is pending. The said arbitration 7/27 http://www.judis.nic.in W.P.No.31326 of 2018 award is in respect of different period and by different petitioner. It has no relevance to the present Writ Petition. The pending of the appeal against the said arbitration award does not bar the petitioner to sustain this Writ Petition questioning the locus of the 2nd respondent holding the post of the Chairman of the 1st respondent Society contrary to the law. Further, regarding the W.P.No.16161 of 2013 filed by Dhanapal referred in the counter affidavit, the Learned Counsel for the petitioner submit that, the order of the single judge passed on 16.09.2019 in a batch of Writ Petitions, there is no discussion about the case and order passed in that case without reference to the facts of that case should be considered as non-est in law.
11. Maintainability of this Petition:-
The defendants has raised the question of maintainability of this Writ Petition on the ground that, the Writ Petition will not lie against the Co-operative Society since the Co-operative Society is not a state within the meaning of Article 12 of the Constitution of India.
12. It is contended by the Learned Counsel for the 2nd respondent that, the 2nd respondent Society is not discharging any public 8/27 http://www.judis.nic.in W.P.No.31326 of 2018 function and more over, the matter relating to election to the Board of Directors and Officer Bearers can be raised only by way of arbitration, as provided under Section 84 of the Multi State Co-operative Societies Act, 2002.
13. When a Writ Petition will lie against the Co-operative Society, has been discussed and decided by Courts, on various occasions, before amendment to the Constitution and after amendment to the Constitution. In all those cases the broad Principle laid down by the Hon'ble Supreme Court as well as Full Bench of this Court is that, the Writ Petition against Co-operative Societies are maintainable in certain circumstances. When the action complained in the Writ Petition is of any statutory violation on the part of the Co-operative Society, a Writ Petition will lie. The action of the Co-operative Society, if falls in a public domain or breach of the public duty is complained of, writ may also lie. However, in the absence of breach of any statutory duty or public duty, a Writ Petition cannot be entertained against a Co-operative Society.
14. In this Writ Petition, this Court has called to interpret the provision of Multi State Co-operative Societies Act, 2002, in connection with the right of the 2nd respondent continuing in the post of Chairman of 9/27 http://www.judis.nic.in W.P.No.31326 of 2018 the Society, circumventing the statute. In the said circumstances, though there is an alternate statutory remedy to approach the arbitrator under Section 84, since the larger issues including interpreting Section 44(2) is involved, this Court holds this Writ Petition is Maintainable.
15. Res judicata The Learned Counsel appearing for the respondents, referring the dismissal of W.P.No.16161 of 2013, dated 16.09.2019 contends that, in the earlier Writ Petition filed for the same issue has already been decided and dismissed by this Court on 16.09.2019. Hence, the Writ Petition is hit by res judicata.
16. After going through the judgment rendered by the Single Judge of this Court in the batch of Writ Petitions, wherein, W.P.No.16161 of 2013 also mentioned and dismissed, there is no discussion about the 2nd respondent holding the post of Chairman of the Society or same being tested in the light of Section 44(2) of the Act. Since the issue has not been decided in the above said Writ Petition, this Writ Petition is not hit by the Principle of res judicata.
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17. Res sub judice The last contention raised by the Learned Counsel for the respondents questioning the maintainability of this Writ Petition is the Principle of res sub judice. It is contended by the Learned Counsel for the respondents that, the authority of the 2nd respondent holding the post of Chairman continuously is one of the subject matter of O.P.No.384 of 2018 & O.P.No.387 of 2018 which are pending before this Court. One K.Sankaranarayanan has filed Arbitration Case in ARC No.8 of 2016 and ARC No.2 of 2016. It was dismissed by the Arbitrator (Retired Judge of Madras High Court). Before the Arbitrator, this issue was raised and the Arbitrartor has answered against the petitioner (Sankaranarayanan) and held in favour of the 2nd respondent.
18. Aggrieved by that, the Petitioner Sankaranarayanan has approached the Hon'ble High Court and preferred appeal against the arbitrator award. In the appeal except the payment of cost, there is no stay. Since the Appellate Court has seized of the matter and matter being prior in point of time, the present Writ Petition cannot be taken up for consideration on the Principle of res sub judice. 11/27 http://www.judis.nic.in W.P.No.31326 of 2018
19. In the Arbitration Case No.8 of 2016 filed by K.Sankaranarayan against the respondents herein, the Learned Arbitrator has touched upon this issue and concluded as under:-
It is true that the 3rd respondent acted as Chairman on few occasions during 2008-2013 and the same is also admitted in writing by both the Respondents 2 & 3. That by itself will not amount to his holding the post of Chairman for the 3rd consecutive term. The very discharge of the functions and responsibilities of the Chairman by Vice-Chairman on few occasions was by virtue of the authority vested on him under Bye-law 20(1) as per which the elected Vice-Chairman of the Society shall discharge the duties of Chairman and preside over the Board Meetings and General Body Meetings in the absence of the Chairman in the general interest of the Society. The act of the 3rd respondent in acting as Chairman is only to meet out the exigencies and in the general interest of the Society. By mere fact that the post of Chairman remained vacant during that tenure and he was acting so while holding the post of Vice-Chairman cannot lead to any inference and cannot attribute any motive on the 3rd respondent that the post of Chairman is kept vacant purposely and the 3rd respondent had been acting as Chairman on one hand and holding the office of Vice- Chairman on the other hand only to circumvent the prohibition imposed under Section 44(2) of MSCS Act, 2002. When admittedly the 3rd respondent contested and was elected for the post of Vice-Chairman for the period 12/27 http://www.judis.nic.in W.P.No.31326 of 2018 between 2008-2013 and during that period he was discharging the functions of Vice-Chairman and while doing so on few occasions also discharged the functions of Chairman, that too in the general interest of the Society and also as per Bye-law, the disqualification under Section 44(2) of MSCS Act, 2002 cannot be invoked and the same would not render him ineligible for contesting and for getting elected to the post of Chairman in the election held for the next tenure between 2013-2018. The 3rd respondent was fully eligible to contest and to be elected for the post of Chairman of the 2nd respondent Society in the election held on 03.02.2013 for the period 2013-2018. The objection raised by the claimant against the validity of the election of the 3rd respondent either as Vice-Chairman during 2008 or as Chairman during 2013 is hence devoid of any merits and the Claimant is, on facts also, disentitled to challenge the validity of election of the 3rd respondent as Chairman of the 2nd Respondent Society for the tenure between 2013-2018 and the dispute raised herein is liable to be dismissed also on merits.
20. This award is under challenge in O.P.Nos.384 to 387 of 2018. The Learned Counsel has submitted a detailed note on applicability of Principle of res sub judice in the matters dealt by Writ Courts exercising Article 226 of the Constitution.
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21. Relying upon Section 141 of Civil Procedure Code, the Learned Counsel has submitted that, procedure under Civil Procedure Code is not applicable to proceedings under Article 226 of the Constitution of India.
22. The Learned Counsel also referring Section 19 of the Arbitration Act which says that, the arbitral tribunal shall not be bound by the Civil Procedure Code or Indian Evidence Act, while conducting the proceedings, would submit that Section 10 of Civil Procedure Code has no relevancy as far as the matter arising out of arbitral proceedings as well Writ Petitions under Article 226 of the Constitution.
23. Section 10 of the Civil Procedure Code speaks about the effect of res sub judice.
Section 10 of Civil Procedure Code reads as below:-
"No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having 14/27 http://www.judis.nic.in W.P.No.31326 of 2018 jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court”
24. The Principle of res sub judice explicitly spoken in Civil Procedure Code, is a general Principle of procedure which as far as possible should be followed for the sake of uniformity and to avoid conflicting decisions. It is rule of prudence and convenience. If the issue is viewed through the provisions of Section 10 of Civil Procedure Code, Section 19 of Arbitration Act and Section 141 of Civil Procedure Code, the High Court dealing Writ Petition need not apply Section 10 of Civil Procedure Code. Hence, this Court accept the submission made by the learned Counsel for the petitioner and proceed to discuss whether the relief sought by the petitioner herein is grantable.
25. Other contentious issues:-
The main contention of the Learned Counsel for the Petitioner is that, the spirit of the Section 44 (2) of Multi State Co-
operative Society Act, 2012 is to prohibit a member being the numero uno of the Society after two consecutive terms. The 2nd respondent, to 15/27 http://www.judis.nic.in W.P.No.31326 of 2018 subvert the provision by wielding his power had first amended the byelaw of the Society. The Constitution of the Board of Directors was changed by introducing the post of Vice-Chairman which was not in existence till 2003. Further, amendment were carried in the byelaws of the Society in the year 2004 and 2008, conferring all the powers of Chairman to the Vice Chairman in the absence of Chairman and ensuring the post of Chairman is not filed, not by default but by design. It is necessary to distinguish lawful ways of getting round an Act (known as avoidance) from unlawful ways (known as evasion). What cannot be done directly cannot be done indirectly. Court has a duty to counter the mischief against enactment such as the present one, which is an attempt to evade the legislative intention.
26. The Learned Counsel extensively referring Part-XXII, “Construction against evasion” the commentaries on ‘Statutory Interpretation -by Bennion’ – {5th Edition, Lexis Nexis Publication} submitted that, 'Parliament does not intend the plain meaning of its legislation to be evaded. And it is the duty of the Courts not to facilitate the circumvention of the parliamentary intent.' (R Vs J UKHL 42, [2005] 1 All ER at [64]).
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27. The Learned Counsel for the petitioner drawing parallel to the case of tax avoidance and tax evasion, while interpreting Section 44(2) of MSCS Act, submitted that the Ramsay principle of interpretation has to be applied and not the Westminister Principle. [Ramsay principle in short: In case of an artificial tax avoidance scheme, Court will look to the substance of the scheme rather than its form. Westminister Principle in short: Is a principle of tax law that, a person is entitled to order his or her affairs so that a tax advantage is obtainable]. Ramsay principle was laid while interpreting tax law in W T Ramsay Ltd Vs. IRC ([1982] AC
695).
28. The Learned Counsel for the petitioner pleads that application of Ramsay Principle is not confined to law of taxation, it has to be applied to other branches of law also.
29. In his commentary, Mr.Bennion quote Lord Wilberforce saying, “while a subject was to be taxed only on clear words, this did not confine the courts to literal construction. There may indeed should, be considered the context and scheme of the relevant act as a whole , and it purpose may, indeed should be regarded. Where Parliament wishes to prohibit the doing of any act, it tends to concentrate in its wording on 17/27 http://www.judis.nic.in W.P.No.31326 of 2018 the obvious and direct ways of doing the act. Yet if the intention is to be achieved, the prohibition must be taken to extend to indirect methods of achieving the same object even though these are not expressly mentioned. As was expressed in a maxim favoured by Coke: quando aliquid prohibetur fieri, prohibitur ex directo et per obliquum (whenever a thing is prohibited, it is prohibited whether done directly or indirectly).
30. The Constitution Bench of the Hon’ble Supreme Court in M/s.McDowell and Company Limited Vs. Commercial Tax Officer [1985(3) SCC 230] referring the Westminster Principle and Ramsay Principle stated that, It is neither fair nor desirable to expect the legislature to intervene and take care of every device and scheme to avoid taxation. It is up to the Court to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and consider whether the situation created by the devices could be related to the existing legislation with the aid of 'emerging' techniques of interpretation (sic as) was done in Ramsay, Burma Oil and Dawson, to expose the devices for what they really are and to refuse to give judicial benediction.
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31. Therefore, the Learned Counsel for the Petitioner submitted that, section 44(2) of the Multi State Co-operative Societies Act, 2002, requires purposive interpretation to give effect to the true intention of the legislators. If the subversion of the Act is permitted, it will be against the very object of the 97th Constitutional amendment.
32. Per contra, the Learned Senior Counsel Mr.A.L.Somaiyaji for the respondents submitted that, the Writ Petition is not maintainable in view of the alternate statutory remedy available under section 84 of the Multi State Co-operative Societies Act, 2002. That apart, the subject matter of this writ petition already heard and decided in the arbitration proceedings and the appeal against the arbitration award is pending in O.P.Nos.384 and 387 of 2016 before this Court. Hence, the issue in this Writ Petition is sub judice. Further, the petitioner has no locus to sustain this writ petition since being a member of the Society, he is bound by the bye-law of the Society. Purposive interpretation of the statute requires only when the statute is ambiguous. The spirit of the legislator could be plainly understood by the Letter of the Legislation. The comparison of the old Act and the new Act clearly discloses the spirit of the legislatures was to prohibit holding the post of Chairman/President beyond two consecutive terms. There is no bar for holding the post of Vice-Chairman 19/27 http://www.judis.nic.in W.P.No.31326 of 2018 of the Society continuously. That is why, in the new Act, the prohibition for holding the post of Vice-Chairman/Vice President was omitted in Section 44(2) which was present Section 37 of the repealed Act. The conscious omission of the post of Vice Chairman/Vice President has to be taken to its logical conclusion.
33. The Learned Senior Counsel for the Respondent relying upon the judgment of the Supreme court rendered in Giridhar G. Yadalam Vs. Commissioner of Wealth Tax and another reported in (2015 (17) SCC 664) submitted that, when there is no ambiguity in the language of the statutory provision and when the plain language of the statute is sufficiently enough and capable of giving one definite meaning there is not need to resort to purposive interpretation. Only strict interpretation should apply in those cases.
34. The restriction of holding Office is mentioned in Section 37 of the Repealed Act, 1984 and in Section 44(2) of the New Act, 2002.
(i). Section 37 of the repealed Multi State Co-operative Societies Act, 1984 read as below:-
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37.Restrictions on holding of Office:-
No person shall be eligible to hold the office of a president or chairman or vice-president or vice-Chairman on the board of a multi-State Co-operative society, after he has held the office as aforesaid during two consecutive terms, whether full or part:
Provided that a person who has ceased to hold the office of a president or chairman continuously for one full term of three years shall again be eligible for election to the offices aforesaid.
Explanation. Where any person holding the office of the president or vice-president or chairman or vice- chairman at the commencement of this Act is again elected to that office after such commencement the shall for the purpose of this section, be deemed to have held office for one term before such election.
(ii). Section 44(2) of the Multi-State Co-operative Societies Act, 2002, which is currently in force read as below:-
44. Prohibition to hold office of chairperson or president or vice-chairperson or vice-president in certain cases.-
(1) ..........21/27
http://www.judis.nic.in W.P.No.31326 of 2018 (2) No member of a board shall be eligible to be elected as the chairperson or president of a multi-State co-operative society, after he has held the office as such during two consecutive terms, whether full or part:
Provided that a member who has ceased to hold the office of the chairperson or president continuously for one full term shall again be eligible for election to the office as such.
Explanation.—Where any member holding the office of the chairperson or president at the commencement of this Act is again elected to that office after such commencement, he shall for the purpose of this section, be deemed to have held office for one term before such election.
35. As pointed out by the Learned Senior Counsel appearing for the respondents, the post of Vice-Chairman/Vice President is consciously omitted in the new Act under the category of post carrying prohibition. When the prohibition is only for the post of Chairman/President, same cannot be extended to Vice-Chairman post also.
36. As per the bye-law of the Society, there are nearly 22 Constituencies. The members of each constituency shall elect their 22/27 http://www.judis.nic.in W.P.No.31326 of 2018 representatives to the Representative Assembly. Department wise the number of representatives is fixed in the byelaw. Totally about 600 representatives are elected from total membership of nearly 68,000.
These representatives of the Assembly in turn elect the Board of Directors. The Chairman of the Society is elected by the elected Board of Directors. When the electoral roll of the Society being of such magnitude spreading across southern and part of Central states in India, the allegation that, the administration of the Society is centralised in the hands of the 2nd respondent does not carry merit.
37. The proviso to sub-section (2) of Section 44 of the Act, does not say the member during the cooling off period of one full term should be without holding any post in the Society. In fact, it is an enabling provision for a member who has ceased to hold the Office of the Chairman or President continuously for one full term shall again be eligible for election to the Office as such”. Therefore, the spirit of the Act does not indicate that, a member of the society cannot hold any post after two full term as Chairman. The embargo is only for the post of Chairman and not for other posts. Therefore, changing the position from Chairmanship to any other post cannot be construed as subverting or circumventing the law. Incidentally, in this case, when the 2nd 23/27 http://www.judis.nic.in W.P.No.31326 of 2018 respondent/N.Kanniah, was elected as Vice-Chairman the post of Chairman was vacant. Hence, he was discharging the duty of the Chairman as per the bye-law.
38. It is contented by the Learned Counsel for the Petitioner that, these bye-laws were amended only to help the 2nd respondent to retain his power. The counter to this allegation is that, the bye-laws are amended in the general body meeting consist of all members. The view of the majority is to have a Vice Chairman post in the Board empowering him to exercise the power of Chairman, in the absence of Chairman. There is no malafide or illegality in this arrangement. It is a common practise prevailing in all administrations, whether in a elected office or nominated.
39. As a result of the above discussion, this Court concludes that, i). there is no bar to entertain this Writ Petition. When violation of Constitution or statutory provision is prima facie made out, Court has to entertain Writ Petition to test the veracity of the said allegation.
ii). Though the petitioner had alternate statutory remedy of raising election dispute before arbitrator, having admitted the Writ Petition and 24/27 http://www.judis.nic.in W.P.No.31326 of 2018 kept pending for nearly one year, disposal of the Writ Petition on the ground of alternate remedy will not be fair and true to spirit of Justice.
iii). The disposal of W.P.No.16161 of 2013, which had not discussed about the issue in hand will not be a res judicata.
40. As far as the merit of the petition is concern, this Court holds that, there is no ambiguity in Section 44 of the Act to interpret otherwise than what it means on plain reading. The proviso to the sub- section(2) read along with sub-section (2) gives a plain, unambiguous meaning revealing the intention of the Legislators. When the intention of the legislator is not to prohibit holding of any other post other than the Chairman post, Court cannot declare the 2nd respondent is holding the post of Chairman illegally.
41. For the reasons stated above, the Writ Petition is dismissed. No costs.
05.12.2019
Index :Yes
Speaking Order/Non-speaking order
bsm
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W.P.No.31326 of 2018
To,
1. The Chief Executive,
The Railway Employees Co-operative Credit Society Ltd., Ashok Vihar Complex, Old Zoo Road, Chennai – 600 003.
2. Central Registrar, Multi State Co-operative Societies, Ministry of Agriculture Department of Agriculture and Co-operation Krishi Bhavan, New Delhi – 110 001.
26/27 http://www.judis.nic.in W.P.No.31326 of 2018 Dr.G.Jayachandran,J.
bsm Pre-delivery order in Writ Petition No.31326 of 2018 05.12.2019 27/27 http://www.judis.nic.in