COMMON JUDGMENT
(Judgment was delivered by ELIPE DHARMA RAO, J.)
The subject matter of the writ petition is with regard to conduct of elections in the Food Corporation of India (South Zone) Employees Co-operative Society Limited.
2. It is stated in the affidavit filed in support of the writ petition that the petitioner is the President of the Food Corporation of India (South Zone) Employees Co-operative Society Limited, who is the first respondent in the writ appeal. The petitioner-society is a society registered under the Multi State Co-operative Societies Act. The members of the Society are chosen from the employees of the Food Corporation of India, Southern Zone. As per the Multi State C-operative Societies Act, 2002 (hereinafter referred to as “the Act”), the elections have to be held once in five years under Section 45 of the Act.
3. The petitioner was elected to the Board of the petitioner-society in the election held for the period from 2004 to 2009. The election for the period 2009-2014 was due in the month of December, 2009. The five year period for the existing Board expired on 31.12.2009 As per the provisions of the Act, a Board meeting of the petitioner-society has to be held atleast sixty days prior to the five year term comes to an end.
4. On 24.9.2009, the petitioner-society's board meeting was held and in the said meeting, Mr. P. Jayaprakasam, advocate was appointed as Returning Officer and on 30.10.2009, election programme was notified to hold election for the petitioner's society. The Returning Officer made all arrangements for holding elections in compliance with the provisions of the Act and Rules thereof. At that point of time, a suit in O.S No. 12081 of 2009 was filed by the third and fourth respondents in the writ petition before the learned V Assistant Judge, City Civil Court, Chennai, seeking the relief of declaration that the election programme dated 30.12.2009 issued by the Returning Officer is null and void and for other reliefs and the said Court granted ex parte interim injunction in I.A No. 22905 of 2009.
5. As against the said order, the petitioner's society filed a Civil Revision Petition before this Court and obtained stay of injunction order granted in I.A No. 22905 of 2009. Subsequently, the Returning Officer proceeded with the election. At that point of time, the fifth respondent in the writ petition refused permission to hold election within their premises at different centres, where elections were to be held. However, the said Civil Revision Petition was dismissed by order dated 29.4.2010
6. All of a sudden, the first respondent in the writ petition, on 1.4.2011, passed an order under the authority/power given to them under Section 45(6) of the Act to hold elections for the petitioner-society, thereby appointing the second respondent in the writ petition as Returning Officer. The second respondent notified the election programme in the newspaper on 26.4.2011 announcing election date as 12.5.2011 The first respondent or the second respondent have no authority to hold election under Section 45(6) of the Act.
7. In view of the above, the petitioner filed W.P No. 12280 of 2011 for issuance of a writ of certiorari, to call for the records pertaining to the impugned order No. L-11014/71/2010-L&M dated 1.4.2011 passed by the first respondent for conducting elections to the petitioner Society and consequently, to quash the appointment of the second respondent as Returning Officer by the first respondent and the second respondent's election notification dated 26.4.2011 as illegal, null and void.
8. The contention of the petitioner is that the first respondent cannot exercise his powers to hold elections under Section 45(6) of the Act after the expiry of ninety days period from the date on which the election fell due i.e 31.12.2009 The existing Board of the petitioner's society had taken all steps and notified election for the next five year term. But the attempts on the part of the existing board of the petitioner's society to hold elections have been stalled only by the respondents. Hence the petitioner's society cannot be blamed for not holding elections.
9. The petitioner also filed M.P No. 1 of 2011 to grant an order of interim injunction restraining the respondents from proceeding with the election programme as per the Notification dated 26.4.2011 issued by the Returning Officer, who is the second respondent, pursuant to the order dated 1.4.2011 passed by the first respondent for conducting elections to the petitioner-society pending writ petition.
10. Learned counsel appearing for respondents 5 and 6 in the writ petition submitted that election process is initiated by the first respondent only because of the failure on the part of the governing body of the petitioner-association to discharge their duty and he is, in the given situation, competent to do so and his competency cannot at all be questioned by the petitioner-association.
11. Learned single Judge, after hearing the arguments at length, held as follows:-
“7. The facts available herein would show that there is no failure on the part of the existing Board to conduct election and they have already passed resolution and the correctness and validity of the resolution is under challenge in the suit filed by the respondents 3 and 4. Though the Returning Officer is appointed by the Board for the conduct of election, the Returning Officer is not able to proceed with the election because of the injunction order. The Board has also taken further steps to proceed with the election process during the short period when the injunction order was suspended by this Court pending CRP. The Board has also in compliance of the direction, approached the trial court to have the interim injunction petition disposed of and no reason can be attributed to the Board for the pendency of the proceedings, which is the main cause for the election process initiated by the Board to be stalled. That being the state of affairs, there is no failure on the part of the association and in that event, the 1st respondent gets no authority to initiate election process. In my opinion, election process initiated by the first respondent is prima facie without jurisdiction and cannot be allowed to go and no prejudice will be caused to either of the respondents or any one in the event of the election process being temporarily stopped subject to the outcome of injunction I.A No. 22905 of 2009 with further direction issued to the court concerned to dispose of the same.
8. Though an objection is sought to be raised on the side of the respondents 5 and 6 that once the election process is commenced, the same cannot be stayed, the same is answered in the judgement reported in 2001 (3) CTC 486 in R. Karuppan v. P.K. Rajagopal, Secretary wherein, our High Court is of the view that such principle is not applicable to the election held in respect of associations which are governed only by the Societies Registration Act and Rules.
9. In the result, the 6 Assistant City Civil Court, Chennai is directed to dispose of I.A No. 22905 of 2009 in O.S No. 12081 of 2009 along with vacate injunction petition, if any, filed by the petitioner association, on merits and in accordance with law, within three weeks from the date of receipt of the copy of this order. In the meantime, there shall be an order of interim injunction as sought for in M.P No. 1 of 2011 and subject to the out come of the injunction application, further election process can go on and the WMP is accordingly disposed of.”
Since the writ appeal is filed as against the interim order passed in the writ petition, for better appreciation of the facts and circumstances and to avoid multiplicity of proceedings, with the consent of both the parties, both the writ appeal and the main writ petition are taken up together and disposed of by this common order.
12. When the writ appeal came up for consideration, it is submitted that after passing orders by the learned single Judge, I.A No. 22905 of 2009 in O.S No. 12081 of 2009 was taken up for consideration by the learned V Additional Judge and interim injunction granted in the said I.A was vacated and the said petition was also dismissed. Subsequently, the suit was also dismissed for default.
13. Heard the learned counsel appearing for the parties and perused the materials available on record.
14. From the above, it is seen that though the petitioner has initiated steps to conduct election during his tenure, as contemplated under Section 45 of the Act, when the same is stalled by initiating the judicial proceedings by way of filing suit in O.S No. 12081 of 2009 and grant of interim injunction on 24.11.2009 in I.A No. 22905 of 2009, the first respondent has taken steps to go on with the same. Accordingly, in exercise of the powers conferred under Section 45(6) of the Act, the Joint Registrar of Co-operative Societies (PDS) II, Tamil Nadu was appointed as Returning Officer to conduct elections. Though C.R.P was filed against the grant of interim injunction in I.A No. 22905 of 2009 and stay of interim injunction was granted, the said C.R.P was dismissed by order dated 29.4.2010
15. We are informed that during the course of time, the C.B.I has conducted investigation and submitted its final report to the learned Special Judge for C.B.I Cases, Madras (VIII Additional District and Sessions Court), giving some recommendation. One of the recommendations is to take departmental action against the petitioner and three others to impose major penalty. In view of the same, the petitioner cannot conduct election as contemplated under Section 45 of the Act. According to the petitioner, he has initiated steps to conduct election before the expiry of term of office of Board of Directors. However, there are serious allegations and recommendations pending consideration against the petitioner before the Society.
16. Moreover, it is pertinent to mention here that once the election notification is issued for appointing the Returning Officer and publishing the schedule of election, the only course open to the aggrieved person is to invoke the provisions of the Arbitration under Section 84(2)(c) of the Act. Hence, respondents 3 and 4 in the writ petition should not have approached the civil Court by filing O.S No. 12081 of 2009 and the learned V Assistant Judge, City Civil Court should not have entertained the suit and passed ex parte injunction order. Though the suit is dismissed for default, we have no hesitation to hold that filing of the suit is not maintainable in view of Bar under Section 84 of the Act.
17. We are not able to appreciate the contention raised by the learned counsel for the petitioner that the first respondent should have acted within ninety days period as contemplated under Section 45(6) of the Act. Since the Board of Directors did not conduct the election because of various circumstances mentioned above, in our considered view, this limit of ninety days as contemplated under Section 45 of the Act is not applicable to the present facts and circumstances of the case
18. Further, with regard to the contention of filing of the writ petition by the writ petitioner as President of the society, Bye-law 46 of the Food Corporation of India contemplates that the Secretary is called the Chief Executive of the Society and he shall be appointed by the Board of Directors and Bye-law 47 contemplates the powers and functions of the Secretary and the Chief Executive, who shall under the general superintendence, direction and control of the Board, shall appoint the person to sue or to be sued on behalf of the Society. Therefore, the petitioner, as President of the Society, has no authority to approach this Court and file the writ petition against the order of the first respondent dated 1.4.2011, appointing Returning Officer to conduct election in the society for the period 2009-2014, as the period of office of the petitioner in the Society expired as early as 31.12.2009
19. Therefore, we hold that in view of Bye-law 47, the writ is not maintainable at the instance of the petitioner. If for any reason, the writ petitioner wants to file a writ petition, if he is so advised, he can file it as a public interest litigation as we have held in the earlier order that he has to submit his resignation from the post he is holding and come out as a free citizen and file a writ petition under the caption of public interest litigation to ventilate his grievance before this Court. On that ground, the writ petition is liable to be dismissed.
20. In view of the above discussion, we consider it appropriate to hold that since the petitioner is facing investigation for serious allegation and also as recommended by the C.B.I, the department is going to initiate departmental action for imposing either minor or major penalty depending upon the outcome of the enquiry held by them, the period of ninety days to conduct election as per Section 45(6) of the Act is not applicable to the peculiar facts and circumstances of this case. Therefore, we dismiss the writ petition with a direction to continue the election process as initiated by the Returning Officer, who was appointed as per the order dated 1.4.2011, as per his election schedule dated 26.4.2011 with necessary amendments and modifications and complete the election process within a period of three months from the date of receipt of a copy of this order. Accordingly, the writ appeal stands disposed of. Consequently, the connected M.Ps are closed. However, there shall be no order as to costs.
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