IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.926 of 2008 IN (CWJC 7042/1995) ========================================================== = Chairman/President,National Co .... .... Appellant/s Versus Bibhuti Bhushan Sinha & Ors .... .... Respondent/s with Letters Patent Appeal No. 863 of 2008 IN (CWJC 9940/1996) ========================================================== = Chairman/President,National Co .... .... Appellant/s Versus Chitranjan Prasad Singh & Anr .... .... Respondent/s Against the judgment and order dated 11.9.2008 passed by Hon’ble Mr. Justice Ajay Kumar Tripathi in C.W.J.C. no.7042 of 1995. Appearance : For the Appellant/s : Mr. SANDEEP KUMAR, Advocate Mr. Mukesh, Advocate For the Respondent/s : Mr. S.K. Ghose, Sr. Advocate Mr. Giridhar Gopal Tewary, Advocate. PRESENT THE HON’BLE JUSTICE SMT. T. MEENA KUMARI THE HON’BLE MR. JUTICE AKHILESH CHANDRA T.Meena Kumar & Akhilesh Chandra,JJ. These Letters Patent Appeals arise out of the order passed by the learned single Judge in C.W.J.C. nos.7042 of 1995 and 9940 of 1996 questioning the orders passed by the President of National Co-operative Consumers’ Federation of India Ltd. Respondent nos.1 and 2 on the charge of defalcation Patna High Court LPA No.926 of 2008 dt.07-07-2011 2 of money was show caused, charges were framed, served and enquiry was held where both the respondents were held responsible for defalcation of money totaling Rs.25,000/- by the enquiry officer. The President exercising power under Regulation 33(d) of the Bye-laws of the Federation passed the order of dismissal which has been questioned in the writ jurisdiction case. Before the learned single Judge an objection was raised by respondent nos.1 and 2 that the disciplinary authority in the above case is the Managing Director of the Federation. The President is the appellate authority and he cannot act as a disciplinary authority. The president being appellate authority had chosen to pass the order of dismissal which has been impugned in the writ proceeding invoking powers under Regulation 33(d) of the Bye-laws. It is contended that unless the president feels that there is situation of emergency arisen which has been prescribed under Regulations 33(d) of the Bye-laws, the president cannot exercise power for proper adjudication with regard to the situation of emergency. It has been contended that except indicating in a routine manner the president has passed the order in the memo without following the principle of natural justice. An objection has been taken before the learned single Judge with regard to the maintainability of the writ petition against the appellate-Federation on the ground that it would be brought under section 44 of the multi State Patna High Court LPA No.926 of 2008 dt.07-07-2011 3 Cooperative Society Act 1984 for the reason that the Government has raised only two nominees of its own even though snatching of two nominees of its own and it has share in the Federation, such contention has been negated by the learned single Judge. However, the writ petition has been allowed. Learned single Judge has chosen to set aside the impugned order on the ground that the President has not given any cogent reason for exercising the authority under Regulation 33(d) of the Bye-laws which is extracted below. “ 33.(d) The President shall be competent to decide whether a situation of emergency has arisen. When a decision to this effect is taken by the President, he shall be competent to exercise all powers of the Board of Directors. Any action taken or any action passed by the President in pursuance of this authority shall be placed in the next meeting of the Board of Directors. “ Learned counsel for the Federation has vehemently argued that the writ can not be maintained against the Federation on the ground that it cannot be brought under Article 12 of the Constitution of India for the reason that even though the Government has its share of only two nominations of its own. It has been contended that even though the Government has got administrative power through the Managing Director but the writ cannot be brought under the purview of Article 12 of the Constitution of India. However, in view of the fact that law laid down by the Apex Court in the case of Pradeep Kumar Biswas V. Patna High Court LPA No.926 of 2008 dt.07-07-2011 4 Indian Institute of Chemical Biology and ors. reported in 2002(5) SCC 111, we are of the opinion that appellant- Federation can be brought under Article 12 of the Constitution of India and the writ petition is maintainable. So far as merit of the case is concerned, the case was that the President exercised power under Regulation 33(d) of the Bye-laws which would indicate that the President exercised power under the situation of emergency. The subject matter of the writ petition would go to show that except the President to exercise power under Regulation 33(d) of the Bye- laws there is no mentioning of the situation of emergency that arose so as to enable the President to exercise power under Regulation 33(d) of the Bye-laws. Perusal of the order would go to show that except the President to exercise power under Regulation 33(d) of the Bye-laws there is no decision with reference to the situation of emergency that has arisen to exercise such power under Regulation 33(d) of the Bye-laws by him. In the absence of such situation of emergency which has been arrived at by the President, we are of the opinion that the power under Regulation 33(d) of the Bye-laws the President cannot exercise in a routine manner. Under the above circumstances, the order of the learned single Judge need not be interfered with. It is observed that the President also has not issued any show cause before passing the order of dismissal which is a major punishment. Even on that ground the order of dismissal has to Patna High Court LPA No.926 of 2008 dt.07-07-2011 5 be set aside by this Court and , as such, we are remitting the matter back to the disciplinary authority, i.e., the Managing Director to act in accordance with law by issuing second show cause enclosiing copy of the inquiry report within a period of four weeks from the date of receipt of a copy of this order and the respondents shall reply the same within a period of four weeks thereafter. We want to make it clear that the disciplinary authority shall pass the final order within a period of four weeks thereafter. In view of the modification of the order of the learned single Judge, the appellant-respondents are deemed to be continued under suspension and they should be paid subsistence allowance as eligible with Rules and Regulations till the final order is passed and subsistence allowance with all arrears shall be paid within a period of three weeks from the date of receipt of a copy of this order. With the above modification the Letters Patent Appeals stand disposed of. Patna High Court, 7th July, 2011 Sudip/ NAFR ( T. Meena Kumari, J.) ( Akhilesh Chandra, J. )