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Judgment
Heard learned counsel for the petitioners, State and the
respondent no. 5.
The petitioners have approached the Court for
quashing of order contained in Letter No. 573 dated 07.10.2016, by
which the respondent no. 3 has directed to get the works done of the
Bastha Primary Agriculture Credit Co-operative Society Ltd.
(hereinafter referred to as the ''PACS''), in the district of West
Champaran to be made through the respondent no. 5, holding him to
be the Manager of the concerned PACS.
Learned counsel for the petitioners submitted that the
order impugned was at the very first instance totally unnecessary for
the reason that if any person is holding the post of Manager, as per
the law, he is entitled to discharge such function. However, she
submitted that the impugned order, which starts on the premise that
the respondent no. 5 is the Manager, itself is erroneous. Learned
counsel submitted that the respondent no. 5 was the Manager till
18.02.2015, when in the General Body Meeting of the PACS held on
18.02.2015, under Resolution No. 17, the respondent no. 5 was
removed on various grounds. Learned counsel submitted that
pursuant to that another person under Resolution No. 19, in the same
meeting, was appointed Manager and thus, the order impugned
holding the respondent no. 5 to be the Manager and then directing
that the respondent no. 5 shall conduct all works/business of the
PACS, including signing of cheque, is illegal. Learned counsel
submitted that the same being purportedly in terms of the
Departmental Letter No. 7119 dated 22.08.2016, is incorrect for the
reason that the said Departmental Letter has been issued after more
than one year six months from the date of the decision removing the
respondent no. 5 from the post of Manager, which was done on
18.02.2015.
Learned counsel for the State submitted that in view
of there being reports from the field that in the management of such
type of PACS and other Co-operative Societies rules and regulations
were not being followed, a general direction was given by the
Department under the aforesaid letter no. 7119 dated 22.08.2016, for
the purposes of not only clarifying the legal position but also to the
authorities at the District Level to ensure compliance. Learned
counsel submitted that in view thereof, the authorities have gone into
the issue and appropriate directions have been given.
Learned counsel for the respondent no. 5 submitted
that the Resolution No. 17 dated 18.02.2015, was never
communicated to him and thus, he was not aware of his removal and
only on account of him not being allowed to be involved in the
working of the PACS, he had first given representation to the
respondent no. 3 on 03.09.2016, which culminated in the passing of
the impugned order. He, thus, submitted that such resolution besides
being infirm in law, not having been communicated, his removal
cannot be accepted in the eyes of law.
Having considered the facts and circumstances of the
case and submissions of learned counsel for the parties, though many
materials have been brought on record either in favour of or against
the removal of the respondent no. 5 as Manager of the PACS, under
Resolution No. 17 of the meeting held on 18.02.2015, and also for
and against the appointment of another person under Resolution No.
19 in the same meeting, but in view of the order proposed to be
passed, the Court does not deem it necessary to go into such aspects,
either on facts or in law. Having said that, limiting the consideration
in the present writ petition to the order impugned, the Court does not
find that the same can be sustained. The order impugned, starting on
the premise that the respondent no. 5 was the Manager, is the reason,
for such direction of involving him in all affairs of the PACS,
including signing of cheque. The same does not appear to be proper,
the reason being that once, rightly or wrongly, any decision has been
taken removing the respondent no. 5 from the post of Manager, the
same neither being challenged nor interfered with by the Competent
Authority, the respondent no. 3 could not have given the finding that
the respondent no. 5 continued to be the Manager of the PACS. The
arguments advanced on behalf of the respondent no. 5 that the
Resolution No. 17 itself was illegal, is not required to be gone into by
this Court, in the present proceeding, since it is not the writ petition
filed by the respondent no. 5, challenging such resolution. Moreover,
on the specific query of the Court to learned counsel representing
respondent no. 5, as to whether, after 18.02.2015, he was allowed to
work on the post of Manager and sign cheques the reply was that in
fact he was not allowed to work from November, 2014 itself, when
the new Managing Committee took charge. Thus, the respondent no.
5 having a cause of action right from November, 2014, but not
moving before the appropriate forum, irrespective of his removal and
doing the same only on 03.09.2016 and that too, in terms of the
Departmental Letter No. 7116 dated 22.08.2016, which is also quoted
in his representation, in the considered opinion of the Court, cannot
create any equity or right in the respondent no. 5 or entitle him to
challenge his removal/non allowing to work on the post of Manager
of the PACS. Moreover, the respondent no. 5 had made compliant to
the respondent no. 4 on 02.09.2016 and to the respondent no. 3 on
03.09.2016 only with regard to his grievance of no work being taken
from him and that all works should be directed to be conducted
through him. There is not even a whisper with regard to any
grievance either relating to the General Body Meeting held on
18.02.2015 and Resolution No. 17, under which he was removed, or
even the Resolution No. 19 by which another person was appointed
as Manager. The Court would clarify here that it is not commenting
upon or going into the merits of such removal, but because in service
matters, time being a major factor and the respondent no. 5 not
challenging either the Resolution No. 17 dated 18.02.2015 or him not
being allowed to perform his duty, including signing of cheques,
right from November, 2014, has given the issue finality, as far as
such issues are concerned, on the principle of acquiescence. A
person not challenging any order relating to his service, which may
be adverse to him or which may be illegal, within a reasonable period
of time, and before the appropriate forum, there is presumption in law
that the person has accepted the position and as a consequence not
chosen to contest or agitate the same. The respondent no. 5 had not
even moved before the Competent Authorities under the Bihar Co-
operative Societies Act, 1935 or even before this Court for any such
grievance and suddenly becoming wiser in terms of the Departmental
Letter dated 22.08.2016, cannot be permitted to do so after such
inordinate delay. In service jurisprudence, even matters which may
not be strictly legal, attain finality, if not challenged by the person
aggrieved. In the present case, the matter is personal only to the
respondent no. 5 as it is his service which has been taken away and
thus, there is no other/ wider ramification, which may persuade the
Court to go into all such aspects. The person not agitating his
removal, the presumption is that he is either satisfied or not interested
to pursue the matter. The manner in which the respondent no. 5 has
chosen to move the Authority is an indirect approach, which the
Court would not like to comment upon. Suffice to say that such was
never a challenge to his removal and thus, such issue stands
concluded and is not required to be gone into at this highly belated
stage and still worse, where, till date respondent no. 5 has not
independently and himself moved any Forum/Authority under the
statute or the Court, challenging or assailing Resolution No. 17 dated
18.02.2015 removing him. At the cost of repetition, the Court again
clarifies that such a situation has resulted only due to the inaction on
the part of the respondent no. 5 and is not a comment on the merit of
such resolution. Further, as far as the matter relating to Resolution
No. 19 appointing another person as Manager is concerned, the same
was neither before the Authority concerned nor is required to be gone
into by this Court in the present proceeding as it is not germane to the
lis involved, since challenge is only to the order dated 07.10.2016,
passed by the respondent no. 3, which does not deal either with
removal of respondent no. 5 or any fresh appointment.
For the reasons aforesaid, the writ petition succeeds.
The impugned order dated 07.10.2016 passed by the District Co-
operative Officer, West Champaran, Bettiah, is set aside. However,
the authorities under the statute are free to exercise their
power/jurisdiction, in accordance with law, as and when the same
may be required.