Jagat Narain Singh vs District Assistant Registrar, Jaunpur and others

Om Prakash, J.—This petition raises a ticklish but an interesting question whether the petitioner ceased to be a Member of the Municipal Board Karmachari Bhogi Sahakari Samiti, Jaunpur, which is a primary society, registered under the Uttar Pradesh Cooperative Societies Act, 1965 (for short �the Act�).

Byelaws of the Society are Annexure1 to the writ petition. Byelaw 6 ka of the said Byelaws states that membership of the Society is open to all the employees, either permanent, officiating or probationers. Under this byelaws, the petitioner became a Member of the aforesaid society before 1960, as he was an employee of the Municipal Board, Jaunpur. He was elected as a delegate by the Primary Society to the District Cooperative Bank Limited, Jaunpur on 23121977. Being a delegate, he was elected as Member of the Committee of Management of the District Cooperative Bank Limited, Jaunpur on 22101992 (see Annexure2 to the writ petition). Under Rule 445 of the U.P. Cooperative Societies Rules, 1968 (briefly �the Rules'''') terms of the Committee of Management shall be three years. Thus, the petitioner unless incurs a disqualification earlier, is entitled to continue as member of the Committee of Management upto 21101995.

The petitioner retired as Principal of the Junior High School, Raja Bazar Nagar Chhetra, Jaunpur on 3061993. Thereupon, the District Assistant Registrar, Jaunpur, respondent No. 1 passed an impugned order dated 18111993 (Annexure4 to the writ petition) holding that upon retirement from the post of Principal, the petitioner ceased to be a Member of the Committee of Management. He, therefore, wrote to the Secretary/General Manager, District Cooperative Bank Limited, Jaunpur, to take up appropriate proceedings against the petitioner under Rule 454 of the Rules.

In paragraph 10 of the counter affidavit filed for respondents No. 2 and 3, it is pleaded that the petitioner''s membership came to an end on his retirement from service in view of the provisions of Rule 63 (iv) of the Rules, which is as under:

�A member of a Cooperative Society shall cease to be such member on

(i) ....................

(ii) ....................

(iii) ......................

(iv) retirement, transfer or forfeiture of all the shares held by him.�

In the first instance, learned counsel for the respondents urges before us that the word ''retirement'' occurring in clause (iv) of Rule 63 refers to retirement from employment and that the petitioner having retired from service ceased to be a Member of the Primary Society and, therefore, he incurred disqualification within the meaning of Rule 453 (1)(h), which states that no person shall be eligible to be, or to continue as a member of the committee of management of any cooperative society if he is not a member of the general body of the society. The question therefore, is whether the petitioner ceased to be a member of the primary Society upon his retirement from service under rule 63 (iv). Submission of learned counsel for the petitioner is that the word ''retirement'' in clause (iv) of Rule 63 refers to retirement of shares held by a member of a cooperative society, and not to the retirement from employment.

What is the correct interpretation of the word ''retirement'', occurring in clause (iv) of Rule 63? Since the word ''retirement'' occurring in clause (iv) of Rule 63 precedes the words ''transfer or forfeiture of all the shares held by him'', principle of ejusdem generis will be relevant and if that is applied, the word ''retirement'' will take its colour and shade from the words �transfer or forfeiture of all the shares�. The word �retirement� will not be assigned a meaning different from the words �transfer or forfeiture�. If the meaning of the word ''retirement'' is understood in the light of the following words �transfer or forfeiture of the shares� then the only conclusion that can be arrived at is that the word ''retirement will not mean superannuation from service but it will mean the same as meant by the following words, namely, �transfer or forfeiture�.

The verb transitive ''retire'' according to the New Lexicon Websters Dictionary, inter alia, means to withdraw money from circulation or bonds, stocks from the market. It is, therefore, clear that the word ''retirement'' does not always mean retirement from employment, but that also means withdrawal, for example, the retirement of shares. If the word retirement is interpreted applying the principle of ejusdem generis which on the premises of this case, has to be applied means the retirement of shares. If the word ''retirement'' were used in the sense of ''cessation of service'' in which it is generally understood then that would not have been used in clause (iv) of Rule 63 in Juxtaposition to the words �transfer or forfeiture of all the shares�. This conclusion is also fortified by Rule 66 which too uses the words, �retire the shares�. So, there may be retirement of shares held by a Member of a Society as they are capable of being transferred or forfeited within the meaning of clause (iv) of Rule 63.

We are, therefore, of the considered view that the plea raised in paragraph 10 of the counter affidavit that the word ''retirement'' as envisaged by Rule 63 (iv) refers to ''retirement'' from the service, is not correct. Respondent No. 1 was, therefore, not right in holding that upon retirement from service, the petitioner ceased to be a member of the general body and therefore, he could not continue as a Member of the Committee of Management.

Learned counsel for respondents then made a novel submission before us that the impugned order is not happily worded and what respondent No. 1 meant by the impugned order is that upon retirement from service, the petitioner no longer held shares in the Society and that being so, there was no question of his being continued as Member of the Society, and consequently, he ceased to be a Member of the Committee of Management.

Rule 66 (ii) on a proper reading, briefly, states that cooperative society may under sub section (3) of Section 23, retire the shares of a member in a salary earners'' cooperative society in the event of cessation of his service by virtue of which he held membership of the society. The submission of the counsel for respondent is that upon retirement from service, the petitioner ceased to have shares in the cooperative society and that being so, he ceased to have any interest in the Society after the retirement. Rule 66 falling in Chapter VI of the Rules, relates to shares and that does not state the point of time as to when a given member ceases to be a member. It is only Rule 63 which enumerates the contingencies in which a member of a cooperative society shall cease. Rule 66 (ii) simply enables a cooperative society to release the shares of a member in a salary earners'' cooperative society in the event of transfer of such member from the area of operation of the society or on cessation of his service by virtue of which he held membership of the society. No order has been shown to us that the cooperative society of which the petitioner is a Member, in fact retired the shares of the petitioner on the cessation of his service, and therefore, the inference that he lost his right to continue as a member of the society, can not be drawn. Rule 66 is an enabling provision and under clause (ii) of that Rule, a cooperative society can retire the shares of a member of a cooperative society when his services cease. We, are, therefore, not impressed by the submission of the counsel for respondent that the impugned order was passed in the event of retirement of shares of petitioner which he has in the cooperative society.

Adverting to Rule 87 (v) of the Rules, learned counsel for the respondents submits that the petitioner ceased to be a delegate upon his retirement from service. Rule 87 (v) states that a person who is already a delegate of a cooperative society shall cease to be such delegate, if he ceases to hold the office by virtue of which he was a delegate of the society in terms of the byelaws of the society. Drawing our attention to byelaw 6 ka of the byelaws (Annexure1 to the writ petition), the counsel for the respondents urges that the petitioner became a member of the Society because of his employment and that his membership will terminate as soon as his employment ceases. The question is whether the petitioner was a delegate of the Primary Society by virtue of an office held by him or by virtue of employment.

On the basis of byelaw 6 ka, it cannot be said that the petitioner became a delegate of the Society by virtue of an office held by him, because that byelaw simply means that membership of the Cooperative Society will be open to the employees either permanent, officiating or probationers. It does not mean that the petitioner has become a member of the Society by virtue of any office held by him. No byelaw has been pointed out showing that if a particular office is held by someone, then he would become a Member of the Society by virtue of that office. The petitioner had become a member of the Society in the year 1960. It is not shown which office was held by him at that time and whether he was made a member of the Society at that time by virtue of that office.

The petitioner simply ceased to be an employee and the respondents have failed to show that the petitioner ceased to hold the office by virtue of which he became a Member of the Society. ''Cessation of office'' is different from ''cessation of employment''. It one has become a Member by virtue of a particular office held by him, then it is the duty of the respondents to show that the petitioner held that office when he became a Member and that he ceased to be the Member because he lost that office. The respondents having failed to establish that the petitioner had become a Member by virtue of a particular office held by him and that his membership of the Society stood terminated, because he ceased to hold that office, Rule 87 (v) of the Rules cannot be taken in aid by them to support their contention that the petitioner ceased to be a delegate of the Society upon retirement from service.

Lastly, learned counsel for the respondents urges that the impugned order passed by respondent No. 1 does not disqualify the petitioner from being a member of the Committee of Management, but respondent No. 1 simply asked the Secretary/General Manager of the Cooperative Bank Limited to hold a meeting to ascertain whether the petitioner incurred any disqualification within the meaning of Rule 453 and that the point of disqualification of the petitioner will be considered in a meeting which he may attend. It is submitted that if a decision is taken in the meeting to be held pursuant to the impugned order that the petitioner incurred disqualification within the meaning of Rule 453, then he will have alternative remedy of arbitration and, therefore the petition is premature and not maintainable.

Rule 454 of the Rules enjoins upon the Committee of Management of a Cooperative Society to ensure that no person incurring any of the disqualifications continues to hold office of a Member of the Committee of Management and that as soon as the fact that the member is subject to any disqualification, comes to the knowledge of the Committee of Management, the Committee shall consider the matter in a meeting to be called for the purpose. From this rule it is clear that the meeting can be called only when it comes to the knowledge of the Committee of Management that a member has incurred disqualification within the impugned order indicates that the fact that the petitioner incurred disqualification, which is a condition precedent to convene a meeting, had come to the knowledge of the Committee of Management. The fact pointed out by respondent No. 1 in the impugned order that the petitioner ceased to be a Member of the parent society and for that reason he also ceased to be a delegate of the Society and consequently he cannot continue to be a Member of the Committee of Management, cannot be said to have been prima facie established on the facts and circumstances of this case and, therefore, the Committee of Management is no more under legal obligation to hold a meeting pursuant to the impugned order. The Committee of Management can act under Rule 454 only when the fact that a member has incurred a disqualification, comes to its knowledge and not before. Such facts cannot be said to have come to the knowledge of the Committee of Management from the impugned order, inasmuch as the respondents failed to show prima facie, that the petitioner ceased to be a member of the general body of the Society and he incurred disqualification under Rule 453, clause (h). Respondent No. 1, therefore, was not right in calling upon the Committee of Management to hold a meeting to consider the case of disqualification of the petitioner.

The petitioner does have a right to seek Court''s intervention to stop the Committee of Management from holding a meeting in the absence of the vital fact having come to its knowledge that he incurred disqualification to continue as a Member of the Management either under clause (h) of Rule 453 or any other clause. The Committee of Management cannot hold meeting at any time it likes, but the meeting can be held only when the correct fact is brought to its knowledge that the petitioner has incurred disqualification. The petition in our view is, therefore, not premature and it cannot be rejected on the ground of alternative remedy. The right to continue as a Member of Committee of Management for three years is a statutory right and the petitioner has a right to protect it. Unless the requisite fact to hold the meeting is established, the committee of Management cannot be permitted to hold the meeting pursuant to the impugned order.

The petition, therefore, succeeds and is allowed. Impugned order dated 18111993 (Annexure14 to the writ petition) is quashed.