HON’BLE SRI JUSTICE A. RAJASHEKER REDDY Writ Petition No.31144 of 2013 Date: -06-2014 Between:
Telangana Non-Gazetteed Officer’s Mutually Aided Cooperative Society Limited, Gachibowli, Hyderabad, Represented by its President K. Swamy Goud and another .. Petitioner AND The State of Andhra Pradesh, represented by its Secretary, Cooperation Department, Hyderabad And 3 others .. Respondents HON’BLE SRI JUSTICE A. RAJASHEKER REDDY Writ Petition No.31144 of 2013 ORDER:
This writ petition is filed for declaring the action of the respondents 1 to 4 in ordering enquiry vide Memo No.39017/SW- II/A1/2008-16, dated 20-10-2011 and submitting report vide Proc. R.No.11098/10/HR4, dated 24-10-2011 under A.P. Mutually Aided Cooperative Societies Act, 1995 against the 1st petitioner society and its Managing Committee members as without jurisdiction and violative of provisions of A.P. Act 30 of 1995 and for declaring the inquiry report vide Rc.No.2785/2011-MACS dated 27-04-2012 submitted by the 4th respondent as illegal.
2. The case of the petitioner is that at the instance of some third party, factional rivalry, the 2nd respondent directed the 3rd respondent to conduct an enquiry pursuant to which the 3rd respondent issued proceedings vide Rc.No.11098/10/HR4, dated 24-10-2011 appointing the 4th respondent to conduct an enquiry within 30 days from the date of receipt of notice, and accordingly, the 3rd respondent submitted inquiry report on 27-04-2012. It is stated that the 3rd respondent completed enquiry on 27-04-2012, which has to be completed within a period of 120 days from the date of ordering of inquiry under Section 29 (3) of the A.P. Mutually Aided Cooperative Societies Act, 1995 (for short “the Act”). However, the enquiry was completed more than 180 days, as such, the said enquiry is null and void and lapsed under Section 29 (4) of the Act. It is also stated that the 2nd respondent has no jurisdiction for giving direction to the 3rd respondent to order enquiry under the provisions of the Act, and as such, the proceedings issued by the 2nd respondent and the consequential proceedings issued by the 3rd respondent for conducting inquiry are without jurisdiction. It is further stated that the 3rd respondent- Commissioner for Cooperation and Registrar of Cooperative Societies is not the Registrar of Societies under the Act and that as per G.O.Ms.No.151, dated 20-06-2006, Additional Registrars working in the office of Commissioner for Cooperation and Registrar of Cooperative Societies are the Registrars of A.P. Mutually Aided Cooperative Societies Act, and therefore, ordering enquiry by the 3rd respondent is without jurisdiction and void. It is further stated that there is no material much less valid material before the respondents 1 to 3 to initiate inquiry under Section 29 (3) of the Act and that for conducting any enquiry under Section 29 (2) of the Act, there should be a specific matter relating to gross violations of the provisions of the A.P. Act 30 of 1995. The 3rd respondent has not taken into consideration the provisions of the Act, while conducting inquiry proceedings and the provisions of A.P. Cooperative Societies Act have no application to the petitioner society. It is also stated that the 4th respondent referred the matter to petitioner society, which has been considered and reported for rectification, but in spite of the same, the 4th respondent, filed an application before the Cooperative Tribunal in O.P.No.38 of 2012 to take further action and the petitioner filed an application for rejecting the proceedings before the Cooperative Tribunal, but the Tribunal is not proceeding with the matter on the ground that such application is not maintainable. Aggrieved by the impugned Memo dated 20-10-2011 and the submission of report dated 24-10-2011 by the 4th respondent, the present writ petition is filed.
3. This Court, on 31-10-2013 granted interim suspension, which is extended from time to time.
4. Respondents 1 to 3 filed counter stating that the writ petition is not maintainable and liable to be dismissed in limini as pursuant to the report, the consequential action had already been initiated even prior to filing of the writ petition. It is stated that O.P.No.38 of 2012 was filed before the Cooperative Tribunal, Hyderabad, by invoking the provisions under Sections 31 and 33 of the A.P. Mutually Aided Cooperative Societies Act in view of adverse findings in the impugned report and the petitioners, having filed an application before the Tribunal for rejecting the said O.P., are not entitled to invoke the jurisdiction of this court and seek relief on similar lines. The petitioner has to sue or be sued in the name of its Secretary but not by its President and hence, the writ petition is not maintainable. It is stated that the petitioners have filed the writ petition after lapse of about one and half years after submission of inquiry report and taking of consequential action thereon. It is stated that some members of the 1st petitioner society approached GAD Department of the Government of Andhra Pradesh, seeking inquiry into the affairs of the society and that complaining the inaction of the Government, W.P.No.14702 of 2010 was filed, which was disposed of on 08-12-2010 with certain directions, pursuant to which, the Government initiated action and issued proceedings vide Memo dated 20-10-2011 directing the 3rd respondent to conduct an enquiry and take appropriate action as per A.P.M.A.C.S. Act and the 3rd respondent, taking into consideration all the relevant aspects, issued proceedings dated 24-10-2011 appointing the 4th respondent to conduct an enquiry into the affairs of the society and accordingly, the 4th respondent had completed the inquiry and submitted a report on 27-04-2012 and the action initiated is consonance with the observations of this Court in L.P.A.No.10 of 2012 dated 23-11-2012. It is also stated that the time limit stipulated in Section 29 (4) of the Act is directory and not mandatory and that interpretation which advances the object of the Act and provisions should be preferred than the one which defeats the purpose of the Act and its provisions. It is further stated that in exercise of powers conferred by sub-section 6 of Section 4 of A.P.M.A.C.S. Act, 1995 the Governor of A.P. appointed the Additional Registrar working in the office of the Commissioner for Cooperation and Registrar of Cooperative Societies, A.P., Hyderabad as Registrar of A.P. Mutually Aided Cooperative Societies for the purpose of A.P. Mutually Aided Cooperative Societies and the Registrar of Mutually Aided Cooperative Societies A.P., Hyderabad, is also competent and continued to be Registrar of Mutually Aided Cooperative Societies A.P., Hyderabad by virtue of G.O.Ms.No.405 Agrl. & Coopn & (Coop.IV) Department, dated 27- 05-1995 issued by the Government in exercise of powers under Section 4 (6) of APMACS Act and hence, ordering of inquiry by the 3rd respondent is within his jurisdiction and valid. It is also stated that substantial material is available on record with regard to findings recorded against the delinquents in the enquiry and that the consequential action pursuant to the enquiry had been initiated long back and O.P.No.38 of 2012 was filed. It is also stated that the inquiry was initiated pursuant to the orders of the court and the same is valid, legal and already completed duly following the principles of natural justice and the provisions of the Act were taken into consideration. It is further stated that on completion of inquiry, the procedure as per APMACS Act is followed and civil and criminal actions against the concerned on the basis of findings of the report were initiated and the issues can be agitated before the Tribunal in the O.P. filed on the basis of inquiry report and appropriate findings can be invited. The petitioners, having filed an application to reject the O.P., instead of pursuing the same, filed the present writ petition only to stall the civil and criminal proceedings already initiated and hence, the respondents sought for vacation of the interim order dated 31-10-2013.
5. The petitioners filed reply affidavit reiterating the contents of the writ affidavit. It is stated that Section 29 (2) of the Act stipulates that the Registrar at his own motion or application by the Federation or society concerned or creditor of the cooperative society or not less than 1/3rd of the Director or not less than 1/10th of members, has to hold enquiry in respect of any specific matter or matters relating to any gross violation of any provisions of A.P.MACS Act and in fact no such application was filed in terms of Section 29 (2) of the Act by any person and hence, the Government has no power or authority to direct the Commissioner (Cooperation) to cause an enquiry in the matter against the petitioner society, and therefore, the direction issued by the Government in breach of Section 29 (2) of the Act is ultra vires and void. It is further stated that in terms of G.O.Ms.No.151, dated 20-06-2006, the Additional Registrar working in the office of the Commissioner for Cooperation and Registrar of Cooperative Societies is Registrar of A.P. Mutually Aided Cooperative Societies for the purpose of APMACS Act and therefore, the contention of the respondents that the Commissioner for Cooperation can act as Registrar to petitioner society under APMACS Act is untenable in law. It is also stated that the respondent Registrar has filed an application under Section 33 of the Act pursuant to the enquiry report before the Cooperative Tribunal and the petitioner being the respondent filed an application in the nature of counter and also prayed for rejection of the said O.P. and the petitioner on its own has not filed any statutory application before the Tribunal and therefore, the same cannot be treated that the petitioner has invoked alternative remedy in respect of impugned action.
6. Sri K. Ramakrishna Reddy, learned senior counsel for the petitioners submits that the 2nd respondent has no jurisdiction to direct the 3rd respondent to conduct an enquiry by issuing the impugned proceedings dated 20-10-2011. Even the 3rd respondent is not competent to initiate enquiry under the provisions of the A.P.M.A.C.S. Act as the 2nd respondent cannot act as Registrar under the provisions of the Act and the Additional Registrar working in the office of the Commissioner for Cooperation and Registrar of Cooperative Societies is Registrar of A.P. Mutually Aided Cooperative Societies for the purpose of A.P.M.A.C.S. Act, 1995 as per G.O.Ms.No.151 Agrl. & Cooperation, dated 20-06- 2006. He also contended that the enquiry lapsed since the enquiry report is submitted beyond the period of 120 days as provided under Section 29 (2) of the Act and no further action can be taken basing on the said report and that the said enquiry report is void ab initio. He also contends that the petitioners have not invoked any alternative remedy but only filed an application for rejection of O.P.No.38 of 2012 under Section 29 of the Act. He further contends that there is no sufficient material much less valid material before the respondents 1 to 3 to initiate inquiry under Section 29 (2) of the Act and the enquiry was initiated for violating the provisions of the Act and Rules made thereunder. He further contended that there is no proper application of mind by the 3rd respondent, while ordering enquiry under Section 29 (2) of the Act and that when the Act provides that particular thing has to be done in a particular manner the same has to be carried out in that way and there would be no deviation from that. He further contended that the period prescribed under Section 29 (4) of the Act for conducting enquiry is 120 days and the consequences are provided for not completing the enquiry within the stipulated period of 120 days. As such, the consequences have to follow and the enquiry is deemed to have been lapsed. Hence, the enquiry report is void and cannot be acted upon. The prescription of 120 days under Section 29 (4) of the Act is mandatory. In support of his contentions, he relied on various judgments reported in Laxman
[1]
Pandya and others v. State of Uttar Pradesh and others ,
[2]
Rajinder Singh Bhatti and others , Bhavnagar University v. [3] Palatana Sugar Mill (P) Ltd., and others , Union of India and
[4]
others v. A.K. Pandey , Union of India and others v.
[5]
Shivendra Bikaram Singh , State of Jharkhand and others v.
[6]
Ambay Cements and another , Dr. Ram Singh Saini v. Dr.
[7]
H.N. Bhargava , Nasiruddin and others v. Sita Ram
[8]
Agarwal and order of this Court in W.P.No.8677 of 2005 dated 23-09-2008.
7. On the other hand, the learned Government Pleader for Cooperation submits that the writ petition itself is not maintainable since the petitioner has filed the petition for rejection of O.P.No.38 of 2012 filed under Section 31 and 33 of the A.P.M.A.C.S. Act by the respondents by raising similar contentions. Since the petitioners availed the alternative remedy, they cannot maintain the writ petition, and more so, the writ petition is filed after lapse of a period of one and half years after initiation of action basing on the report. He contends that since consequential action basing on the impugned report has been taken, the writ petition is not maintainable. He also contends that the enquiry has been initiated basing on the orders passed by this Court in W.P.No.14702 of 2010 and as such, the petitioner cannot find fault with the enquiry report. He further contends that the time limit prescribed under Section 29 (4) of the Act is directory and not mandatory and that interpretation, which advances the object of the Act and provisions should be preferred than the one which defeats the purpose of the Act and its provisions. He further contends that the action is also in consonance with the observation of this Court in L.P.A.No.10 of 2012 dated 23-11-2012. He further contended that the Registrar of Cooperative Societies is also competent to be continued as Registrar of Mutually Aided Cooperative Societies by virtue of G.O.Ms.No.405 Agrl. & Cooperation & (Coop.IV) Dept., dated 27- 05-1995. He further contended that all the issues raised herein have been raised in the application filed by the petitioner for rejection of O.P.No.32 of 2012. Hence, the petitioner can canvass the same before the Tribunal. He further contended that the writ petition is not maintainable as the Society is to be represented by its Secretary as per bye law of the society. He also contends that in similar circumstances, the Madras High Court upheld the action of the respondents in W.A.No.949 of 2008 dated 29-08-2008.
8. In the present case, admittedly, the enquiry was initiated by the 3rd respondent vide impugned proceedings dated 24-10- 2011 by exercising the powers under Section 29 of the Act basing on the record placed before the 2nd respondent and having satisfied with the gross violations of the provisions and the existence of prima facie case to order a statutory enquiry into the affairs of the petitioner society. The 3rd respondent has reported several irregularities committed by the petitioner society and prima facie satisfied about the violations of the provisions of the Act. As such, the contention of the petitioners that the 3rd respondent has not applied his mind to the provisions of the Act cannot be countenanced. The petitioner waited till the enquiry is completed and filed the writ petition challenging the initiation of the enquiry and also the enquiry report on the ground of violation of sub- section (4) of Section 29 of the Act that the enquiry is not completed within the period of 120 days from the date of its initiation. Before filing of the writ petition itself, the respondents have filed O.P.No.32 of 2012 under Section 31 and 33 of the Act basing on the report submitted vide proceedings dated 27-04-2012 in which the petitioners filed a petition for rejection of O.P. by raising self-same contentions that are raised herein. A perusal of the petition filed by the petitioners, which is placed before the court, shows that the contentions raised in that petition and the contentions raised by the petitioner herein are identical and similar and hence, having invoked the alternative remedy, it is not open for the petitioners to agitate the same again by filing the present writ petition. Though the petitioners raised an objection that the 3rd respondent has no jurisdiction to order enquiry, in view of G.O.Ms.No.405, dated 27-05-1995, the 3rd respondent is competent to initiate enquiry under Section 29(2) of the Act. As such, the issue of lack of jurisdiction has no merit. The other contention of the petitioners that there is no sufficient material for initiating enquiry under Section 29 (2) of the Act has also no legs to stand. The impugned proceedings dated 20-10-2011 refers to the report of the Joint Collector wherein several allegations are made against the petitioners, basing on which the enquiry was initiated as such, it cannot be said that there is no material for initiating the enquiry. I have gone through the judgments relied on by the petitioners and since I am not inclined to entertain the writ petition on the ground that the petitioners have already invoked the alternative remedy by filing an application in O.P.No.30 of 2012 for rejection of the said O.P., it may not be necessary to advert to the decisions relied on by the petitioner, as I am not going into the merits of the case. In view of above facts and circumstances, I am not inclined to entertain the writ petition exercising the extraordinary jurisdiction under Article 226 of the Constitution of India. However, it is open for the petitioners to press their contentions in the application filed by them in O.P.No.30 of 2012 for rejection of O.P. and the Tribunal shall decide the same in accordance with law without being influenced by any observations made in this writ petition.
In view of the above facts and circumstances of the case, the writ petition is devoid of any merit and the same is liable to be dismissed. Accordingly, the writ petition is dismissed. No costs. As a sequel thereto, miscellaneous petitions if any pending shall stand closed.
A. RAJASHEKER REDDY, J Date: 19-06-2014 Ksn
[1] (2011) 14 Supreme Court Cases 94
[2] (2009) 11 Supreme Court Cases 480
[3] (2003) 2 Supreme Court Cases 111
[4] (2009) 10 Supreme Court Cases 552
[5] (2003) 6 Supreme Court Cases 359
[6] (2005) 1 Supreme Court Cases 368
[7] (1975) 4 Supreme Court Cases 676
[8] (2003) 2 Supreme Court Cases 577