WP(C) 6279/2010 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (oral) The petitioner Society, which is a Society registered un der the provisions of the Assam Cooperative Societies Act, 1949 (in short, 1949 Act ), by the present petition has challenged the order dated 16th November, 20 10 passed by the Registrar of Cooperative Societies, Assam, whereby and where-un der the decision of the Society taken in the meeting of the Managing Committee o n 21st March, 2010 vide resolution No.3 as well as in the Annual General Meeting (AGM) held on 23rd May, 2010, removing the respondent No.5 from the office of t he Chairman of the said Society, has been set aside. [2] The election of the office bearer of the petitioner Society was held on 13th October, 2009, wherein the respondent No.5 was elected as Chairman. The said proceeding was duly approved by the approving authority in due course of time. The first meeting of the Society was held on 21st November, 2009. Th e respondent No.5 though was elected as Chairman, he, however, did not participa te, for whatever may be the reason, in the meeting. Since in more than 4 (four ) consecutive meetings of the Society, the respondent No.5 did not attend, the S ecretary of the petitioner Society issued a notice dated 29th January, 2010 aski ng him to show cause for remaining absents in the meetings of the Society in 4 ( four) consecutive meetings and reminding him about the provisions of the Bye Law s. The said notice, however, could not be served on the respondent No.5, which is apparent from the note given by the person who was entrusted with the duty of serving such notice. The Managing Committee of the Society, thereafter, on 21s t March, 2010 adopted a resolution being resolution No.3 canceling the membershi p and Chairmanship of the respondent No.5 by taking recourse of the provisions o f Clause 23(A)(4) of the certified Bye Laws of the Society. The General Body of the Society also on 23rd May, 2010 adopted such resolution canceling the member ship as well as the Chairmanship of the respondent No.5. The proceeding of the General Body was approved by the approving authority on 5th June, 2010. The res pondent No.5, in the meantime, was detained in custody in connection with a crim inal case with effect from 19th May, 2010 and was released from the custody on 1 9th August, 2010. An appeal was, thereafter, filed by the respondent No.5 on 27 th August, 2010 before the Registrar against the decision of the Managing Commit tee as well as the General Body ’’canceling his Chairmanship as well as the pri mary membership of the Society, which was initially allowed by the Registrar vid e order dated 13th September, 2010. A writ petition being WP(C) No.5259/2010 wa s filed by the petitioner Society challenging the said decision of the Registrar , which was interfered with on the ground of violation of the principles of natu ral justice as the Registrar before taking such decision did not issue any notic e to the Society. By the said order passed in the aforesaid writ petition, the Registrar of Cooperative Societies was directed to rehear the appeal and to deci de the same afresh. The Registrar, thereafter, vide impugned order dated 16th N ovember, 2010, upon hearing the learned counsel for the parties, interfered with the aforesaid decisions of the Managing Committee as well as the General Body o f the Society and restored the Chairmanship of the respondent No.5 as well as hi s primary membership of the Society. Hence, the present writ petition. [3] I have heard Mr. HRA Choudhury, learned Sr. Counsel appearing fo r the petitioner and Mrs. V.L. Singh, learned State counsel appearing for the re spondent Nos.1 to 3. I have also heard Mr. AB Siddique, learned counsel appeari ng for the respondent No.4 as well as Mr. SC Biswas, learned counsel for the res pondent No.5. [4] Referring to the provisions of Rule 32(c) of the Assam Cooperati ve Societies Rules, 1953 (in short, 1953 Rules ) framed under 1949 Act as well as Clause 23(A)(4) of the certified Bye Laws of the Society, it has been submitt ed by the learned Sr. Counsel for the petitioner that as the respondent No.5 sin ce the date of the election, i.e. on 13th October, 2009, did not attend any meet ing of the Society, he ceased to be a member of the Society and also the member of the Managing Committee by virtue of the aforesaid provisions of the Rules and also the Bye Laws. It has also been submitted that though the Bye Laws require the elected member of the Managing Committee to seek permission of the Society for absenting himself in 4 (four) consecutive meetings, the respondent No.5 did not seek any permission from the Society and in fact did not participate in 7 (s even) consecutive meetings of the Society till he was taken into custody, i.e. o n 19th May, 2010. It has, therefore, been submitted that the Registrar of the Co operative Societies ought not to have interfered with the decision of the Managi ng Committee as well as the General Body of the Society, whereby and whereunder the primary membership as well as the Chairmanship of the respondent No.5 has be en cancelled. [5] Mrs. Singh, learned State counsel appearing for the respondent N os.1 to 3 has submitted that though the principles of natural justice requires i ssuance of notice to the respondent No.5, though such notice was never served on the respondent No.5, the Society has taken the decision even without serving an y notice on the respondent No.5, canceling his primary membership as well as the Chairmanship, for which such decision has been interfered with by the Registrar . [6] Mr. Siddique, learned counsel appearing for the respondent No.4 has submitted that though in the miscellaneous application (Misc. Case No.13/201 1), the respondent No.5 has contended that he, on 10th November, 2009, sent the copy of the communication addressed to the Secretary of the Society to the Assis tant Registrar of the Cooperative Societies intimating the reason for not attend ing the meeting of the Society, the Secretary of the Society was never informed any authority about filing of such application before the Assistant Registrar of Cooperative Societies. It is also the contention of the learned counsel that s ince the respondent No.5 did not attend more than 4 (four) consecutive meetings of the Society, he seized to be the primary member of the Society as well as the elected Member of the Managing Committee by virtue of Clause 23(A)(4) of the ce rtified Bye Laws of the Society. [7] Mr. Biswas, learned counsel appearing for the respondent No.5 ha s submitted that the miscellaneous application being Misc. Case No.13/2011 filed by him may be treated as the affidavit-in-opposition in the main writ petition. Supporting the decision of the Registrar of Cooperative Societies, it has been submitted that though under Bye Law 23(A)(4) of the certified Bye Laws and Rule 32(c) of the 1953 Rules, an elected Member of the Managing Committee can ceased to be the Member, before taking such drastic action, issuance of notice and serv ice on the same on person sought to be removed, is a must, so as to give him opp ortunity to explain his position. It has been submitted that the removal of suc h person from the office is not automatic. The learned counsel further submits that the petitioner Society knew about the legal requirement for which it is evi dent from the averments made in the writ petition that the notice dated 29th Jan uary, 2010 was shown to have been issued by the Secretary of the Society address ed to respondent No.5, which admittedly was never served on the respondent No.5. The learned counsel, therefore, submits that since the Registrar of Cooperativ e Societies was satisfied about the reason given by the respondent No.5 for his inability to attend the meeting of the Society, he has not committed any illegal ity in passing the impugned order. [8] Mr. Choudhury, learned Sr. Counsel appearing for the petitioner in reply to the submission made has submitted that though the respondent No.5 in the aforesaid Misc. Case has stated that he informed the Secretary of the Socie ty vide communication dated 10th November, 2009, the same was never issued to th e Secretary, which is nothing but the after thought as there was even no mention about the same in the subsequent appeal preferred before the Registrar. Accord ing to the learned Sr. Counsel, the same has been manufactured for the purpose o f the case only. [9] I have considered the submissions of the learned counsel appeari ng for the parties and also perused the pleadings of the parties. No records ha ve been produced by the Secretary of the Society in question though he is the cu stodian of such records. [10] It is not in dispute that the respondent No.5 was elected as the Chairman of the Managing Committee of the Society in a proceeding dated 13th Oc tober, 2009 and his election was approved by the approving authority as required under the provisions of the 1949 Act and 1953 Rules framed thereunder. The gro und on which the respondent No.5’s primary membership as well as the Chairmanshi p was cancelled by the Managing Committee as well as by the General Body of th e Society in their proceedings dated 21st March, 2010 and 23rd May, 2010, respec tively, is that the respondent No.5 has not attended in more than 4 (four) conse cutive meetings of the Society. [11] Bye Law 23(1)(4) of the certified Bye Laws of the Cooperative So ciety provides that a member of the Managing Committee absenting himself from 4 (four) consecutive meetings of the Committee without its permission shall seize to be a Member of the Board. Rule 32(c) of the 1953 Rules also provide that if, without consent of the Administrative Council or the Managing Body, a Director is absent from more than 3 (three) consecutive meetings, he shall ceased to hold the office. The same, however, is not automatic as the elected person cannot b e removed without giving him the opportunity to show cause as to why his members hip should be cancelled and ceased to have hold the office for not attending the required consecutive meetings. [12] In the instant case, it is evident from the pleadings in the wri t petition and also from Annexure-1 appended thereto that the petitioner Society knew about such requirement of law and hence a notice dated 29th January, 2010 was issued by the Secretary of the Society to the respondent No.5. Admittedly t he said notice could not be served on the respondent No.5, as he was not found i n his residence. No other attempt for service of such notice by any other mode was made by the Secretary of the Cooperative Society. The fact remains that the Managing Committee as well as the General Body of the Society adopted the resol utions dated 21st March, 2010 and 23rd May, 2010, respectively, canceling the pr imary membership as well as the Chairmanship of the respondent No.5 without givi ng him the reasonable opportunity to explain the reason for not being able to at tend the meeting of the Society. [13] The Registrar of Cooperative Societies in the impugned order dat ed 16th November, 2010 has noticed such illegality in the proceeding of the Mana ging Committee as well as the General Body. The Registrar, however, has set as ide the said decision of the Managing Committee as well as the General Body by r ecording his satisfaction that there was reasonable ground for not attending the meting by the respondent No.5. The Registrar of Cooperative Societies having r ecorded the finding that such resolutions were passed by the Managing Committee as well as the General Body of the Society without issuing notice ought to have directed the Society in question to hear the respondent No.5 and to take a fresh decision in that regard. [14] Since the respondent No.5 was not served with the notice and he has been removed from the elected office, without serving any notice, the procee ding dated 21st March, 2010 and 23rd May, 2010 adopted by the Managing Committee as well as the General Body of the Society, respectively, cannot be held to be legal and valid. [15] In view of the aforesaid discussion, the present petition is dis posed of with the direction to the respondent No.5 to submit his explanation, fo r not attending the meeting of the Society since its first meeting dated 21st No vember, 2009, to the Society, within 15 (fifteen) days from today. The petition er Society shall, thereafter, take a fresh decision in that regard keeping in vi ew the explanation that may be filed by the respondent No.5, which shall be done within 1 (one) month thereafter. Till that date, status quo as on today shall be maintained. [16] The writ petition is accordingly disposed of. No costs.