1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Jodhpur Nagrik Sahkari State of Rajasthan and Bank Ltd. Vs. others. (1) S.B. CIVIL WRIT PETITION NO.3887/2006 Jodhpur Nagrik Sahkari State of Rajasthan and Bank Ltd. Vs. others. (2) S.B. CIVIL WRIT PETITION NO.3888/2006 Petitions under Articles 226 and 227 of the Constitution of India. Date of Order :: 11th September, 2007 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. P.K. Bhansali, for the petitioner. Mr. K.L. Thakur, Additional Advocate General. Mr. Rajesh Joshi `} Mr. Ashok Chhangani } for the respondents. .... BY THE COURT : Both these petitions for writ being based on same facts were heard together and are being disposed of by a common order. 2 The Managing Director of the petitioner Co-operative Bank by an order dated 21.09.2001 dismissed Shri Vijay Kumar Sharma (respondent No.3) from service and the order aforesaid came to be confirmed by the appellate authority vide order dated 19.01.2004. By way of filing a revision petition under Section 107 of the Rajasthan Co-operative Societies Act, 2001 (hereinafter referred to as “the Act of 2001”), validity, propriety and correctness of the orders referred above was assailed by the respondent No.3 before the State Government. The petitioner objected maintainability of that on the count that under Section 107 of the Act of 2001, the State Government is empowered to revise the orders passed by the officers subordinate to it and not otherwise. The objection was turned down by the Minister for Department of Co-operative Societies, hence by way of filing a writ petition (SBCWP No.4848/2004), the petitioner challenged the same. The writ petition referred above, came to be disposed of on 17.09.2005 by following order: “Both these Writ Petitions involve identical controversy were listed in the Court for admission on 03.11.2004, on which date notices were ordered to be issued thereafter on 12.04.2005 when the writ petition No.4848 was listed in the Court it was stated by the 3 learned counsel for the petitioner that the controversy which has been alleged in this writ petition is identical to S.B.Civil Writ Petition No.2688/1998 – Ishwar Singh V/s. State of Rajasthan decided on 07.05.2003 and D.B. Civil Special Appeal No.502/2003 Ishwar Singh V/s. State of Rajasthan decided on 08.08.2003. Therefore, the files of that writ petition and Special Appeal were ordered to be tagged with it and the writ petition was ordered to be listed along with the writ petition No.4849/2004. Today learned counsel for the respondent also agree with the aforesaid submission that the controversy alleged in the present writ petitions is covered by the two aforesaid judgments and further submitted that these judgments have been affirmed by Hon'ble the Supreme Court vide judgment dated 05.01.2005 which is reported in (2005) 2 SCC-334 Ishwar Singh V/s. State of Rajasthan. In that view of the matter for the same reasons these writ petitions are also disposed of granting/refusing the same reliefs as has been done in the aforesaid judgments.” In the case of Ishwar Singh referred in the order dated 17.11.2005, it was held that under Section 128 of the 4 Rajasthan Co-operative Societies Act, 1965 (proposed para materia to Section 107 of the Act of 2001), the State Government is competent to revise the orders passed by the Registrar or Additional Registrar being officers subordinate. After disposal of the writ petition, learned Minister to the Government of Rajasthan, Department of Co-operatives, again started proceedings relating to the revision petition, therefore, an objection was again raised by the petitioner regarding continuation of revision petition on the ground that it could have not been maintained being the order challenged was not passed by any of the officers subordinate to the Registrar or by the Registrar of the Co-operative Societies. The objection was turned down by learned Minister on 21.02.2006 and the revision petition was fixed for hearing on merits on 07.03.2006, hence this petition for writ is preferred. The only contention of counsel for the petitioner is that under Section 107 of the Rajasthan Co-operative Societies Act, the State Government is empowered to revise an order passed by the Registrar or by the officers subordinate to it and officers of the Bank who passed the orders impugned are not subordinate to the Registrar or to the State Government, therefore, no revision petition as per Section 107 of the Act of 2001 can be maintained. 5 On behalf of respondent No.3, while contesting this petition for writ, it is asserted that the writ petition deserves to be dismissed being filed against an interlocutory order and also on the count that the same is barred by principle of constructive res judicata. On merits, it is contended by counsel for the State as well as by counsel for the respondent No.3 that the respondent Bank being an agency of State, its officers are nothing but the officers subordinate to the State Government and, therefore, the revision petition under Section 107 of the Act of 2001 was rightly entertained by the learned Minister. Having considered the rival contentions, I do not find any substance in the preliminary objection raised by learned counsel for the respondent No.3. By the order dated 21.02.2006, a preliminary objection with regard to maintainability of the revision petition was decided and, therefore, the petitioner can very well seek a writ in the nature of prohibition, if the proceedings before the State Government are beyond the jurisdiction vested with it. An adjudicating body can very well be prohibited at any stage from proceeding with a matter, if it lack jurisdiction. 6 The objection regarding constructive res judicata is also mis-conceived as by this petition for writ, the petitioner is assailing validity of the order dated 21.02.2006 with this allegation that in the case of Ishwar Singh it was held that the State Government is having power to revise the orders passed by its officers subordinate, the State is proceeding further with the matter, though the officers of the Bank are not subordinate to the State Government. In earlier writ petition, it was nowhere decided that the officers of the Bank are subordinate to the State Government or to the Registrar and no presumption even can drawn by the judgment given by this Court in the case of Ishwar Singh that the officers of the Bank are subordinate of the State Government. On merits, as per provisions of Section 107 of the Act of 2001, the Registrar in case where action has been taken by any officer subordinate to the Registrar and the State Government, in case where action has been taken by the Registrar may, on their own motion or on an application of any aggrieved person, call for and examine the record of any enquiry or the proceedings of all such matters in which an action has been taken under the Act of 2001. The State Government, thus, is empowered to revise an order passed by the Registrar or even by an officer subordinate to the Registrar. 7 Precisely the question requires adjudication is that whether Managing Director of the petitioner Bank and its Board of Directors are officers subordinate to the Registrar of the Co- operative Societies or even to the State Government? Under the Act of 2001, a co-operative society is defined as a Society registered or deemed to be registered under the Act. As per Section 7 of the Act of 2001, a co-operative society registered under the Act of 2001 is a body corporate by the name under which it is registered, having perpetual succession and a common seal, and with power to hold property, enter into contracts, institute and defend suits and other legal proceedings and to do all things necessary for the purposes for which it was constituted. As per Section 24 of the Act of 2001, the final authority for a co-operative Society shall subject to the provisions of the Act of 2001 vests in the general body of the members. The financial authority of a co-operative society does vest in general body of its members or a similar body elected in the manner laid down in the rules. The State Government under entire Act of 2001 is having a very little regulatory control on a co-operative society. The co-operative society may be an instrumentality or an agency 8 of the State Government for the purpose of Part-III of the Constitution of India, looking to financial and administrative control, but in no way it can be treated as a department or as a body subordinate to the State Government. A co-operative society in itself is an autonomous body constituted for specific objects and its officers are accountable to the Co-operative Society only and not to the State Government or the Registrar. Thus, the Board of Directors and Managing Director of the writ petitioner -Bank are not officers subordinate to the Registrar or the State Government and, therefore, no revision petition under Section 107 could have been entertained by the Minister giving challenge to the order passed by the Managing Director in capacity of Disciplinary Authority and by the Board of Directors in capacity of an appellate authority. The revision petition preferred by the respondent No.3 before the State Government under Section 107 of the Act of 2001, therefore, is not maintainable being having no jurisdiction to entertain the same. These petitions for writ, therefore, are allowed. The orders passed by the Minister for the Government of Rajasthan, Department of Co-operative Societies dated 21.02.2006 are declared illegal and same are quashed. The revision petitions preferred by the petitioner under Section 107 of the Act of 2001 giving challenge to the orders passed by the appellate authority 9 and the disciplinary authority, are dismissed. The respondent No.3 shall be having liberty to avail appropriate remedy for redressal of his grievance relating to the orders impugned in the revision petitions referred above. No order to cost. (GOVIND MATHUR)J. /anil/