Rajasthan High Court - Jaipur
Badri Lal Sain S/O Shri Chouth Mal Ji vs The Deputy Registrar, Cooperative ... on 14 August, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 26612/2018
Ram Prakash Nagar S/o Shri Dhuli Lal Ji, Aged About 64 Years,
Retired As Manager (Vyavasthapak), Nonera Gram Seva Sehkari
Samiti Ltd., Nonera, District Kota, Resident Of Village And Post
Ayahna, Tehsil Pipalda, District Kota.
----Petitioner
Versus
1. The Deputy Registrar Cooperative Societies, Kota.
2. Nonera Gram Seva Sehkari Samiti Ltd., Nonera,
Panchayat Samiti Sangod, District Kota, Through Its
Authorised Representative Manager.
----Respondents
Connected With S.B. Civil Writ Petition No. 26615/2018 Vishnu Shankar Sain S/o Shri Dhanna Lal Ji, Aged About 63 Years, Retired As Manager (Vyavasthapak), Kotadi Gram Seva Sehkari Samiti Ltd., Kotadi, District Kota, Resident Of 1037, Vinoba Bhave Nagar, Kota.
----Petitioner Versus
1. The Deputy Registrar Cooperative Societies, Kota.
2. Kotadi Gram Seva Sehkari Samiti Ltd., Kotadi, District Kota, Through Its Authorised Representative Manager.
----Respondents S.B. Civil Writ Petition No. 26627/2018 Ram Prasad Saini S/o Shri Bhanwar Lal Ji, Aged About 60 Years, Retired As Manager (Vyavasthapak) Talav Gram Seva Sehkari Samiti Ltd., Talav, District Kota. Resident Of Village Talav, Tehsil Pipalda, District Kota.
----Petitioner Versus
1. The Deputy Registrar, Cooperative Societies, Kota.
2. Talav Gram Seva Sehkari Samiti Ltd., Talav, District Kota, Through Its Authorised Representative Manager.
----Respondents
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S.B. Civil Writ Petition No. 26628/2018
Badri Lal Sain S/o Shri Chouth Mal Ji, Aged About 62 Years, Retired As Manager (Vyavasthapak), Pipalda Khurd Gram Seva Sehkari Samiti Ltd., Pipalda, District Kota. Resident Of Gainta Road, Etawa, Tehsil Pipalda, District Kota.
----Petitioner Versus
1. The Deputy Registrar, Cooperative Societies, Kota.
2. Pipalda Khurd Gram Seva Sehkari Samiti Ltd., Pipalda Khurd, Panchayat Samiti Etava, District Kota, Through Its Authorized Representative Manager.
----Respondents S.B. Civil Writ Petition No. 26630/2018 Nemi Chand Pareta S/o Shri Chitar Lal Ji, Aged About 57 Years, Presently Working As Manager (Vyavasthapak), Kakravda Gram Seva Sehkari Samiti Ltd., Kakrawada, District Kota. Resident Of Village And Post Mal Bhambori, Tehsil Mangrol, District Baran (Raj)
----Petitioner Versus
1. The Deputy Registrar, Cooperative Societies, Kota.
2. Kakrawada Gram Seva Sehkari Samiti Ltd., Kakrawada, Panchayat Samiti Etawa, District Kota, Through Its Authorised Representative Manager.
----Respondents S.B. Civil Writ Petition No. 26631/2018 Govind Verma S/o Shri Pavhari Sharan Ji, Aged About 64 Years, Retired As Manager (Vyavasthapak) Borkhandi Gram Seva Sehkari Samiti Ltd., Borkhandi, District Kota. Resident Of House No. 292/b, Mansaroar Colony Kota.
----Petitioner Versus
1. The Deputy Registrar, Cooperative Societies, Kota.
2. Borkhandi Gram Seva Sehkari Samiti Ltd., Borkhandi, District Kota, Through Its Authorised Representative Manager.
----Respondents
S.B. Civil Writ Petition No. 26637/2018
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Lal Chand Nama S/o Shri Kalu Lal Ji, Aged About 63 Years, Retired As Manager (Vyavasthapak), Karjoda Gram Seva Sehkari Samiti Ltd., Karjoda, District Kota, Resident Of House No. 44-A, Near Patthar Mandi, Subhash Nagar, Kota.
----Petitioner Versus
1. The Deputy Registrar Cooperative Societies, Kota.
2. Karjoda Gram Seva Sehkari Samiti Ltd., Karjoda, District Kota, Through Its Authorised Representative Manager.
----Respondents
For Petitioner(s) : Mr. Pradeep Singh
For Respondent(s) : Mr. SS Raghav, AAG assisted by
Mr.Manish Singh Tomar
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment 14/08/2019 Since the issue involved in the writ petitions is same, the facts of the first file i.e. SB Civil Writ Petition No.26612/2018 are taken note of.
The brief facts as noticed by this court are that petitioner is aggrieved by the judgment and order dated 24 th August, 2018 passed by learned Rajasthan State Cooperative Tribunal, Jaipur in Review Petition No.15/2015 (CIES No.66/2015) titled as Deputy Registrar, Cooperative Societies, Kota Vs. Nonera Gram Seva Sahakari Samiti, Kota & Anr. along with earlier judgment and order dated 25th June, 2015 passed in Original Application decided vide order dated 26th August, 2011 decided by the Deputy Registrar, Cooperative Society, Kota. The Deputy Registrar vide impugned order dated 26th August, 2011 while exercising powers conferred to the Registrar, Rajasthan Cooperative Society under (Downloaded on 06/06/2021 at 05:33:25 PM) (4 of 11) [CW-26612/2018] Section 125 of the Rajasthan Cooperative Societies Act, 2001 (in short "the Act of 2001") stayed the operation of the resolution passed by the Gram Seva Sahakari Samiti Ltd. which conferred benefits of revised pay scales by the society to its employees in view of powers exercised under Section 30B of the Rajasthan Cooperative Societies (Amendment) Act, 2010.
Learned counsel for petitioner Shri Pradeep Singh submits that society was having an autonomy envisaged under Section 30B of the Act of 2001 and therefore, the respondents could not have stopped the Samiti from giving benefits to its employees by revising their pay scales.
Learned counsel for petitioner has drawn attention of this court to Section 125 of the Act of 2001 also, whereby the power of the Registrar to rescind certain resolutions is there but the same is exception of not curtailing the freedom or powers given to the short term cooperative credit structure society which shall adversely affect its autonomy. Sections 30B and 125 of the Act of 2001 read as follows:
"30B- Autonomy in all financial and internal administrative matters.- Notwithstanding anything contained in this Act or any other law for the time being in force, a short term cooperative credit structure society shall have autonomy in all the financial and internal administrative matters including the following areas, namely- (a) personal policy, staffing, recruitment, posting and compensation to staff;
(b) issues relating to affiliation and disaffiliation with any federal structure of its choice including entry and exit at any level. (c) area of operation according to its business requirements; and
(d) internal control systems.(Downloaded on 06/06/2021 at 05:33:25 PM)
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125. Power of Registrar to rescind certain resolutions- (1) If in the opinion of the Registrar, any resolution passed at the meeting of any co-operative society or committee thereof is opposed to the objects of the society or is prejudicial to the interests of the society or its members at large, or is in excess of the powers of the society, the Registrar, may staying execution of the resolution interimly, propose to rescind the resolution: Provided that the Government or the Registrar shall not do anything or take action or issue any order or directive which has effect of curtailing any of the freedom or powers given under this Act to any short term cooperative credit structure society or adversely affect the provisions of this Act. (2) In case where the Registrar has interimly stayed execution of any resolution under sub-section (1), he shall, within a period of forty five days, send the proposal of rescinding the resolution to the Tribunal for consideration. (3) The Tribunal shall, after giving the society an opportunity of being heard, decide upon the proposal of the Registrar and pass its final orders." A plain reading of these two provisions would demonstrate in clear terms that not only the Society in terms of Section 30B has been vested with the autonomy amongst others in the matter of recruitment of its staff, the proviso to Section 125 in no uncertain terms prohibits any interference on the part of the Registrar of Cooperative Societies in a manner having the potential of curtailing or undermining such autonomy. As admittedly the appellant/writ-petitioner had been appointed on contract basis for a period of six months in acknowledgment of the services rendered by him and his continued utility in administrative exigencies as felt by the Society, the resolution to appoint him on contract basis is patently in exercise of its power traceable to Section 30B of the Act. In that view of the matter, the intervention of the Registrar of Co-operative Societies Jaipur in the manner done, as is evident from the office order dated 4.12.2012 of the Managing Director of the Society, in our view, is opposed to the letter and spirit of the proviso to Section 125 of the Act. In the above view of the matter, we are inclined to intervene. As a result, the decision to terminate the contract services of the appellant/writpetitioner as communicated by the office order dated (Downloaded on 06/06/2021 at 05:33:25 PM) (6 of 11) [CW-26612/2018] 4.12.2012 is held to be illegal and in violation of the provisions of the Act.
As it has been submitted on behalf of the appellant/writ-petitioner that meanwhile he has been relieved of the charge of the office of the Manager, which he had been holding on the basis of contract services, we consequently direct that the charge be restored to him." Learned counsel for petitioner submits that while exercising powers under Section 30B of the Act of 2001, the Deputy Registrar has stayed the resolution of the samiti even when it could not have been done in the light of judgment passed by this Hon'ble court in the matter of Mahadev Singh Vs. State of Rajasthan & ors., SB Civil Writ Petition No.12143/2012, decided on 7th February, 2013. The relevant portion of the said judgment reads as follows:
"I have considered the submission made by learned counsel for petitioner and scanned the matter carefully.
Challenge to the impugned order dated 26.06.2012 is mainly in reference to Section 30B and Section 125 of the Act, 2001. As per provision of Section 30B, autonomy is given to the short term co-operative credit structure society. It is in respect of personal policy, staffing, recruitment, posting and compensation to the staff apart from other issues. It is not disputed by the respondent that co-operative society herein is a short term co-operative credit structure society and Section 30B applies to it so as section 125 of the Act, 2001. In view of the above, provisions aforesaid becomes relevant and thus are extracted hereunder:
"30B- Autonomy in all financial and internal administrative matters.- Notwithstanding anything contained in this Act or any other law for the time being in force, a short term cooperative credit structure society shall have autonomy in all the financial and internal administrative matters including the following areas, namely-(Downloaded on 06/06/2021 at 05:33:25 PM)
(7 of 11) [CW-26612/2018] (a) personal policy, staffing, recruitment, posting and compensation to staff;
(b) issues relating to affiliation and disaffiliation with any federal structure of its choice including entry and exit at any level.
(c) area of operation according to its business requirements; and
(d) internal control systems.
125. Power of Registrar to rescind certain resolutions- (1) If in the opinion of the Registrar, any resolution passed at the meeting of any co-operative society or committee thereof is opposed to the objects of the society or is prejudicial to the interests of the society or its members at large, or is in excess of the powers of the society, the Registrar, may staying execution of the resolution interimly, propose to rescind the resolution:
Provided that the Government or the Registrar shall not do anything or take action or issue any order or directive which has effect of curtailing any of the freedom or powers given under this Act to any short term co-operative credit structure society or adversely affect the provisions of this Act.
(2) In case where the Registrar has interimly stayed execution of any resolution under sub-section (1), he shall, within a period of forty five days, send the proposal of rescinding the resolution to the Tribunal for consideration.
(3) The Tribunal shall, after giving the society an opportunity of being heard, decide upon the proposal of the Registrar and pass its final orders."
Perusal to above quoted provisions reveals that respondent Co-operative Society is having financial and internal administrative autonomy as per Section 30B of the Act, 2001. The Registrar is not competent to issue an order or directive which has effect of curtailing any of the freedom or powers given under the Act to any short term co-operative credit structure society. In view of the provision aforesaid, first (Downloaded on 06/06/2021 at 05:33:25 PM) (8 of 11) [CW-26612/2018] argument raised by learned counsel for petitioner deserves acceptance.
The Deputy Registrar issued impugned order ignoring aforesaid provisions of Section 30B and 125 of the Act, 2001. The impugned order thus cannot be allowed to stand. The matter however will not end herein because various arguments raised by learned counsel for petitioner and learned counsel for respondents are required to be dealt with in respect of resolution passed by co-operative society vide at Annexure-6 dated 24.03.2012."
Learned counsel for petitioner submits that petitioner is already retired from the services of society and by virtue of the interim order passed by the Tribunal on 20th February, 2013 (Annexure-9), the petitioner has already drawn all the benefits in pursuance of the resolution, which is Annexure-3 dated 7 th May, 2011.
Learned counsel for petitioner thus submits that in conjoint reading of the precedent law of Mahadev Singh (supra) and the bare provisions of Section 30B read with Section 125 of the Act of 2001, the respondents could not have altered the autonomy of the petitioner by staying resolution revising the pay scales of its employees vide its order dated 26th August, 2011. Learned counsel for petitioner also submits that learned Tribunal has also erred in law by permitting the petitioner to exercise its powers under Section 39 sub-rule (9). Learned counsel for petitioner further submits that once the salary and emoluments have been paid in accordance with resolution dated 7th May, 2011 and the same has been paid by the strength of interim order granted by the Tribunal on 20th February, 2013, therefore, the recovery from the petitioner also cannot be made retrospectively by the Tribunal's final order dated 25th June, 2015.
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(9 of 11) [CW-26612/2018] Learned counsel for respondents Shri SS Raghav, AAG, has strongly refuted the position of law as submitted by the petitioner on the ground that legislative intention of the Act of 2001 was to regulate the society and such upper hands of the respondents cannot be curtailed. The society has kept the society under the minimum discipline as envisaged under the Act of 2001. Learned Additional Advocate General has further submitted that on bare reading of sub-rule (9) of Rule 39 of the Cooperative Societies Rules, 2003, it becomes clear that a short term cooperative credit structure society shall have to adhere to the general conditions and norms laid down by the Registrar in that regard. Sub-rule (9) of Rule 39 of the Rules of 2003 reads as follows:
"(9) A short term co-operative credit structure society shall, subject to the general conditions and norms laid down by the Registrar in this regard, have autonomy in internal administrative matters including the personnel policy, staffing, recruitment, posting and compensation to staff."
Learned counsel for respondents thus submits that the impugned order dated 26th August, 2011 and the consequential order passed by the Tribunal on 25th June, 2015 are justified in law. The respondents have right to exercise control over the State Cooperative Societies within the realm of aforesaid law.
This court after hearing learned counsel for the parties and perusing the record of the case finds that petition is to challenge the order proposing to rescind the resolution passed by the Cooperative Society to revise the pay scales of its employees. Although the spirit of Section 30B of the Act of 2001 is to give short term cooperative credit structure society autonomy in all the financial and internal administrative matters as envisaged under (Downloaded on 06/06/2021 at 05:33:25 PM) (10 of 11) [CW-26612/2018] Section 30B and it includes personal policy, staffing, recruitment, posting and compensation to staff. At the same time, the legislature has enacted Section 125 in the same Act of 2001 whereby the Registrar has been given absolute power to rescind certain resolutions if in his opinion the same were opposed to the objects of the society or prejudicial to the interest of the society or in excess of the powers of the society. Though there is a proviso to Section 125 but the application of mind by the Registrar while exercising its jurisdiction under Section 125 of the Act of 2001 should normally record its reasons as to what was the power which was in excess to the powers held by the society. However, this court finds that Tribunal's order is justified to the extent that the decision of revising the pay scales of its employees taken by the resolution dated 7th May, 2011 was having financial implication upon the financial strength of the society and thus was a crucial decision which ought to affirm to the parametres laid down by the Registrar. Since it has been held that parametres of the Registrar do not permit the society in question to exercise the powers under Section 30B read with Section 125 sub-section (1), it does not suffer from any direct infirmity.
However, without going into the question of law argued by learned counsel for petitioner, this court is inclined to interfere with the order dated 26th August, 2011 to the limited extent that in the light of the fact that resolution dated 7 th May, 2011 has always been acted upon for the petitioner by virtue of interim order passed by the Tribunal on 20 th February, 2013, we deem it appropriate to dispose of the present writ petitions by directing the respondents to re-visit the order dated 26 th August, 2011 strictly in accordance with law. Such order is based upon the fact (Downloaded on 06/06/2021 at 05:33:25 PM) (11 of 11) [CW-26612/2018] that petitioners have drawn all the benefits and have superannuated thereafter and any application of the Tribunal's order dated 25th June, 2015 upon the present petitioners who retired may be detrimental to their retiral benefits and future right of livelihood. Thus the respondents shall pass fresh orders strictly in accordance with law while keeping into consideration the judgments passed in Mahadev Singh (supra) and in Tej Singh Vs. Hanumangarh Central Co-operative Bank Ltd. & Ors., DB Civil Special Appeal No.52/2013, decided on 23 rd January, 2013 so as to decide as to whether interim order dated 26 th August, 2011 would be implemented for the limited purpose of the petitioners alone who have superannuated and have already taken all the benefits. Such decision shall be taken by the respondents to re- visit the order dated 26th August, 2011 qua the petitioners in the light of peculiar circumstances when the petitioners have already drawn the benefits arising out of resolution dated 7th May, 2011 in pursuance of the interim order granted on 20 th February, 2013 by the Tribunal. The decision shall be taken within a period of six months from today. It is made clear that until final decision is taken by the respondents, no recovery shall be made from the petitioners in pursuance of the Tribunal's order dated 20 th February, 2013. It is needless to say that for the purpose of future implementation of the resolution dated 7th May, 2011 for the existing employees of the society, the petitioners shall be at liberty to take a fresh resolution strictly in accordance with law.
A copy of this order be placed in each file.
(PUSHPENDRA SINGH BHATI),J FATEH RAJ BOHRA /71-77 (Downloaded on 06/06/2021 at 05:33:25 PM) Powered by TCPDF (www.tcpdf.org)