Sushil Kumar vs State of U.P. and Others

Heard Shri R.N. Singh, learned Senior Advocate assisted by Shri Dharmendra Kumar, learned counsel for the petitioner, Shri Sujeet Kumar Rai has appeared for respondent no. 3 and Shri Zafar Naiyyar, Additional Advocate General assisted by Shri M.C. Tripathi has accepted notice on behalf of respondent nos.1 and 2. No notice is issued to the respondent nos.4 and 5 in view of the order which is being passed.

By this petition, the petitioner, who is Chairman of District Co-operative Bank, Banda has prayed for quashing the order dated 23/12/2011, issued by the Joint Registrar,Co-operative Societies, U.P. Chitrakoot Dham Mandal, Banda, u/s 38(2) of the U.P. Co-operative Societies Act, 1965 (hereinafter called the "Act, 1965") by which the petitioner was asked to show cause as to why the petitioner be not removed.

Learned counsel for the petitioner challenging the order dated 23/12/2011, contended that the notice u/s 38(1) was issued on 30/11/2011 directing the Committee of Management to take appropriate decision regarding removal of the petitioner and the Committee of Management fixed the meeting on 09/12/2011 and thereafter again the meeting was fixed on 27/12/2011. However, due to non-availability of relevant materials, decision could not be taken by the Committee of Management. He submits that the Joint Registrar ought to have waited till the decision of the Committee of Management and the respondent no. 2 committed error in proceeding against the petitioner by issuing notice dated 23/12/2011 u/s 38 (2) of the Act, 1965.

Learned counsel for the respondents submits that time was allowed to the Committee of Management to take action against the petitioner till 20/12/2011, but the Committee of Management failed to take action against the petitioner within time allowed which empowered the Joint Registrar to proceed u/s 38(2) of the Act, 1965. A perusal of the order impugned indicates that the Joint Registrar has issued a show cause notice to the petitioner since the Committee of Management could not take a decision by 20/12/2011.

Learned counsel for the petitioner submits that relevant materials and details were not provided to the petitioner. Supplementary affidavit has been filed by the petitioner to the effect that the petitioner appeared on 07/1/2012, before the Joint Registrar in which it was stated that all the evidence have not been provided.

After hearing learned counsel for the parties, we are of the view that the Committee of Management having not taken the decision within the specified time as provided, the Joint Registrar was entitled to proceed against the petitioner and issue notice u/s 38(2) of the Act, 1965. It is open for the petitioner to raise all his objections before the Joint Registrar since the Joint Registrar himself has called upon the petitioner to submit his reply to the show cause.

Learned counsel for the petitioner submits that an appropriate objection be filed within a week before the Joint Registrar.

A Division Bench of this Court in Writ Petition No. 48177/2011, Sursari Prasad Mishra & Ors. Vs. State of U.P. & Ors, decided on 11/1/2012, while considering the similar notice issued u/s 38(2) of the Act, 1965, made following observations:

Shri Sujeet Kumar, learned counsel appearing for the respondents no. 5 and 6 submits that since the notices had been issued by the Joint Registrar dated 12/8/2011, asking the petitioners to show cause as to why they be not declared disqualified, it is open for the petitioners to raise all their objections including the objection that facts stated in the impugned notices do not constitute any disqualification and since the question has not yet been finalised, it is not necessary for this Court to enter into the issues raised by the learned counsel for the petitioners in this writ petition. It is further submitted by the learned counsel for the respondents that the petitioners having still an opportunity before the Joint Registrar, Co-operative Societies, Gorakhpur to satisfy him that no disqualification has incurred, this Court may not entertain these issues at this Stage. A perusal of the notices dated 12/8/2011, issued to the petitioners indicates that the petitioners were given opportunity to submit their reply regarding alleged disqualification as mentioned in the impugned notices. We are of the view that the petitioners may submit their reply before the Joint Registrar raising their objection regarding the notices dated 12/8/2011 and the Joint Registrar may consider the same and determine as to whether the petitioners have become disqualified as alleged in the notices dated 12/8/2011.

In above view of the matter, we are of the view that ends of justice be served in disposing of the writ petition giving opportunity to the petitioner to file an appropriate objections within a week before the Joint Registrar who may consider the same and take appropriate action in accordance with law u/s 38(2) of the Act, 1965. With the aforesaid observation, the writ petition is disposed of.