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Ajmer Singh Vs. the Registrar, Co-operative Societies, Punjab, Chandigarh and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 446 of 1980
Judge
Reported inAIR1981P& H107
ActsPunjab Co-operative Societies Act - Sections 3, 3(4), 26(ID) and 27(3)
AppellantAjmer Singh
RespondentThe Registrar, Co-operative Societies, Punjab, Chandigarh and ors.
Cases ReferredSociety Ltd. v. Secretary
Excerpt:
.....an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - ' where the legislature wanted such functionaries to be subordinate to the registrar even when exercising the functions of the registrar, it clearly revealed its mind by providing in sub-section (5) of section 3 of the act......on the typical phraseology of the relevant section envisaging appointment of the registrar and the persons exercising functions of the registrar.12. mr. d. s.nehra arguing for respondents 4 and 5, that is, the marfed. and the administrator thereof, apart from submitting that the appointment of respondent no.4 was legal and valid, in the alternative canvassed that even if the appointment of respondent no.4 was held to be defective, the order passed by him could not be considered invalid in view of the provisions of section 29 of the act and further the alleged rules conferring right of appeal to the administrator from the order of the managing director of the marfed having been made by the registrar in exercise of power under bye-law 26(ii) of the bye-laws of the punjab state co-op......
Judgment:
ORDER

1. The petitioner was holding an appointment as a Field sub-Inspector in the Punjab State Co-operative supply and Marketing Federation Limited, Chandigarh, respondent No. 5 hereinafter referred to as the Marfed and his services were terminated by the Managing director thereof, vide order Annexure P. 2 attached to the writ petition. He challenged that order in appeal before the Board of Directors, which was dismissed, vide order Annexure P. 5 by respondent No. 4 exercising the power of the Administrator in place of the Board of Directors having been appointed thereto in terms of Section 26(ID) of the Punjab Co-operative Societies Act, the petitioner has assailed through this writ petition both the orders. Order Annexure P. 5, was inter alia, challenged on the ground that the appointment of respondent no 4 as the Administrator of the Marfed was ab initio void and, therefore, the order that he passed suffered from the same defect. The petitioner also sought to have the orders, appointing respondent No. 4 as the administrator and the one giving him extension, set aside.

2. In the written statement filed on behalf of the respondents, a preliminary objection to the entertainability of the writ petition against them was raised. The petition was, therefore, admitted to the full Bench, which, vide its judgment dated 6-8-1980.* held that the petition against respondent No. 5 was not competent and against rest of them the same was held to be maintainable to the limited extent of the challenge to the order, annexure P. 5, that is, the order passed by respondent No. 4 dismissing the appeal of the petitioner as being violative of the provisions of Section 269(ID) of the Act and the petition thereafter was ordered to be laid before a single Bench to be dealt with on merits and that is how the petition has come up for hearing before me.

3. Mr. Bldev Singh Khoji, learned counsel for the petitioner, has argued that the appointment order in terms of Section 26(ID) of the Act could not be passed by the Additional Registrar, as the same had to be passed by the Registrar, that is, the Registrar proper and not merely an incumbent who happens to exercise the power of the Registrar. In the alternative, Mr. Khoji canvassed that even if the Additional Registrar exercising the powers of the said section, he could not appoint the Registrar of the cooperative Societies to the said post.

4. As for the question s to whether the Additional Registrar could appoint an Administrator in terms of Section 26(ID) of the Act, the matter has been set at rest authoritatively by a Division Bench of this Court in Ram Singh v. S. L. Kapur, 1975 cur LJ 218, holding that an Additional Registrar exercising the powers of the Registrar was competent to appoint an Administrator under Section 26(ID) of the Act.

5. Coming no to the alternative submission advanced by Mr. Khoji on behalf of the petitioner, it may be observed that the learned counsel looked askance at the legality of the appointment of respondent No.4 who happened to be the Registrar of the Co-operative Societies, by the Additional Registrar for the reason that the Administrator, by virtue of the provisions of Section 27(3) of the Act has to function subject to the control of the Registrar and where the Registrar himself happens to be the Administrator, he cannot be subject to his own control. If he has to be subject to the control of the Additional Registrar exercising the power of the Registrar, then that position would not square up with the position envisaged by the provisions of Section 3(4) of the Act which declares that the functionaries including the Additional Registrar, would exercise their powers subject to the general superintendence and control of the Registrar.

That the officials exercising the powers of the Registrar have to act even in the exercise of such powers under the control and superintendence of the Registrar was sought to be supported from a decision of the supreme court reported in Chintappalli Agency Taluk Arrack Sales Co-op. Society Ltd. v. Secretary (Food and Agriculture), Government of Andorra Pradesh, AIR 1977 SC 2313.

6. Before embarking upon a consideration of the submission advanced on behalf of the petitioner, the relevant provisions of the Act require to be noticed at this very stage.

Section 3 of the Act, which deals with the appointment of the Registrar, as also the other functionaries, is in the following terms.

'3. (1) The Government my appoint a person to be the Registrar of Co-operative Societies for the State.

(2) To assist the Registrar in his functions under this Act, the Government may appoint such number of Additional Registrars, Joint Registrars, Deputy Registrars, Assistant Registrars and other persons with such designations as it may think fit.

(3) The Government may, by general or special order, confer on any person appointed under sub-section (2), all or any of the powers of the Registrar under this Act.

(4) Every person appointed under subsection (2) shall exercise his powers subject to the general superintendence and control of the Registrar.

(5) Notwithstanding anything contained in this Act, where any power of the Registrar is exercised by any person by virtue of the order issued by the Government under sub-section (3), the order passed or decision made by such person shall, for the purposes of appeal, be deemed to be the order or decision of that person and not of the Registrar.'

7. The relevant portion of Sec.26(ID) of the Act, which deals with the appointment of the Administrator, runs as follows:--

'26(ID) where any committee has ceased to hold office and no committee has been constituted in accordance with the provisions of this Act and rules and bye-laws made thereunder, the Registrar may, by an order in writing, point a Government employee as an Administrator for such period as may, from time to time, be specified in the order and the Administrator shall, before the expiry of the period of his appointment, arrange for the constitution of a new committee in accordance with the provisions of this Act and rules and bye-laws made thereunder:

******

Section 27(3) of the Act reads as under:

'27. (3) The administrator so appointed shall, subject to the control of the Registrar and to such instructions as he may from time to time give, have powers to perform all or any of the functions of the committee or of any officer of the society and take all such action as may be required in the interest of the society.'

I have already settled that the Additional Registrar could make an appointment in terms of Section 26(ID) of the Act. The next question then is as to whom he could appoint. A perusal of Section 26(ID) of the Act reveals that the person whom he could appoint can be any Government employee which, by implication, means only this that there is only one requirement that is, that the person so appointed should be a government employee. It is not in dispute that the Registrar is a Government employee. Hence unless there is any other bar, express or implied. he can be appointed as the Administrator.

8. It has been urged by the learned counsel for the petitioner that the Registered cannot be appointed as the Administrator, firstly for the reason that the appointing authority is his subordinate and in his capacity as an Administrator, he would be subordinate to his own subordinate and, secondly. It would be anomalous for the Additional Registrar to exercise control over respondent No. 4, when, by virtue of Section 3(4) of the Act, he himself, being the Additional Registrar, has to act under the control and superintendence of the Registrar, respondent No. 4, even when exercising the functions of the Registrar.

9. In my opinion, there is no merit in either of the submissions of the learned counsel, for one thing legally there is no bar to the appointment as Administrator of a person senior in status to the person who is to effect the appointment. So, if the Registrar was to appoint a person of the status of a Secretary as an Administrator, in law there would be no bar to it. It is, however, a matter of propriety, for it would be embarrassing to a person senior in status to accept an appointment that would make him act as subordinate to his own subordinate or to a person who happens to be lower in official status than him, It is, however, for him to weigh such matters of propriety and if he does not feel embarrassed, then law does not bar him from taking up such a subordinate position.

10. As regards the question of the Registrar exercising control over the Additional registrar even when the latter was to exercise the functions of the Registrar, it may be observed that subsection (4) of Section 3 of the Act does not envisage such a situation. Sub-section (4), envisages that person appointed under sub-section (2) in the exercise of their functions shall be subject to the general superintendence and control of the Registrar. This in the context would mean 'in the exercises of their functions of that office and not in the exercise of the functions of the registrar.' Where the legislature wanted such functionaries to be subordinate to the Registrar even when exercising the functions of the Registrar, it clearly revealed its mind by providing in sub-section (5) of Section 3 of the Act. A perusal of sub-section (5) would show that only for the purposes of appeal against their orders exercising functions of the Registrar they are made subordinate to the Registrar, in that the appeal from their decisions would lie to the Registrar.

11. The ratio of the case of Chintapalli Agency Taluk Arrack Sales Co-op. Society Ltd., (AIR 1977 SC 2313)(supra) is of no help to the petitioner. That decision turned on the typical phraseology of the relevant section envisaging appointment of the Registrar and the persons exercising functions of the Registrar.

12. Mr. D. S.Nehra arguing for respondents 4 and 5, that is, the Marfed. And the Administrator thereof, apart from submitting that the appointment of respondent No.4 was legal and valid, in the alternative canvassed that even if the appointment of respondent No.4 was held to be defective, the order passed by him could not be considered invalid in view of the provisions of Section 29 of the Act and further the alleged rules conferring right of appeal to the Administrator from the order of the Managing Director of the Marfed having been made by the Registrar in exercise of power under bye-law 26(ii) of the Bye-laws of the Punjab State Co-op. Supply and Marketing Federation Limited, the same did not have a statutory character and, therefore, the same could not be enforced by invoking the writ jurisdiction of the High Court.

13. Since I have already held that the appointment of respondent No.4 was legally valid and, therefore, the order passed by him, the validity whereof was questioned only on the ground of defective appointment of respondent No.4 as the Administrator, was valid and legal; it is unnecessary to go into alternative submission addressed by Mr. Nehra.

14. For the reasons aforementioned, this petition is dismissed, but without any order as to costs.

15. Petition dismissed.


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