Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Writ Petn. No. 446 of 1980

Advocates

B.S. Khoji
D.S. Nehra and Arun Nehra (for Nos. 4 and 5) and D.N. Rampal
Advocate General
Punjab

Judges

D.S Tewatia, J.

Acts

Section 26 (1D) of the Punjab Co-operative Societies Act, 1961, hereinafter referred to as the Act.

See more information ...

Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The petitioner was employed as a Field Sub-Inspector by the Punjab State Co-operative Supply and Marketing Federation Limited (the Marfed, respondent No. 5). His services were terminated by the Managing Director by an order (Annexure P.2). The petitioner challenged that termination in an appeal to the Board of Directors; that appeal was dismissed by respondent No. 4 acting as Administrator (order Annexure P.5). The petitioner contested both orders in a writ petition, and also sought to set aside the orders appointing respondent No. 4 as Administrator and extending his appointment.

In respondents' written statement a preliminary objection to entertainability was raised. The matter was referred to a Full Bench which, by judgment dated 6-8-1980, held that the petition against respondent No. 5 was not competent but that the petition against the remaining respondents was maintainable to the limited extent of the challenge to Annexure P.5 (the Administrator's order). The case was remitted to a Single Bench to decide the merits of that limited challenge, which is the subject of the present opinion.

Legal Issues Presented

Whether an Additional Registrar exercising the powers of the Registrar is competent to appoint an Administrator under Section 26(1D) of the Punjab Co-operative Societies Act, 1961.
Whether the Registrar of Co-operative Societies (i.e., a person who is the Registrar proper) can be validly appointed as Administrator, given that Section 27(3) makes the Administrator subject to the control of the Registrar and Section 3(4) subjects functionaries (including the Additional Registrar) to the general superintendence and control of the Registrar.
Whether the order Annexure P.5 (dismissing the petitioner's appeal) is invalid on the ground that the appointment of respondent No. 4 as Administrator was defective or void ab initio.
As an alternative question raised by respondents, whether, even if appointment were defective, the order could be saved by Section 29 of the Act or whether rights created by bye-laws conferring an appeal to the Administrator are enforceable by writ.

Arguments of the Parties

Appellant's (Petitioner's) Arguments

The appointment of an Administrator pursuant to Section 26(1D) had to be made by the Registrar proper; an Additional Registrar (even when exercising the powers of the Registrar) could not pass the appointment order.
In the alternative, if an Additional Registrar exercising Registrar's powers could make such appointment, he could not appoint the Registrar himself as Administrator because (a) the Administrator under Section 27(3) must be subject to the control of the Registrar and (b) if the Registrar were Administrator, he could not be subject to his own control; additionally, Section 3(4) makes the Additional Registrar subject to the general superintendence and control of the Registrar, creating an anomalous supervisory relationship.
Support was sought from the Supreme Court decision in Chintappalli Agency Taluk Arrack Sales Co-op. Society Ltd. v. Secretary (Food and Agriculture), Government of Andhra Pradesh, AIR 1977 SC 2313, for the proposition that officials exercising Registrar's powers act under the control and superintendence of the Registrar.

Respondents' Arguments

Counsel for respondents 4 and 5 (the Marfed and its Administrator) submitted that the appointment of respondent No. 4 as Administrator was legal and valid.
In the alternative, it was argued that even if the appointment had been defective, the order passed by the Administrator could not be considered invalid in view of Section 29 of the Act.
It was also contended that the alleged rules conferring a right of appeal to the Administrator (from the Managing Director's order) were made by the Registrar under bye-law 26(ii) and thus were not statutory in character; therefore, such bye-law-based rights could not be enforced by invoking the writ jurisdiction of the High Court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ram Singh v. S.L. Kapur, 1975 Cur LJ 218	Authority that an Additional Registrar exercising the powers of the Registrar is competent to appoint an Administrator under Section 26(1D) of the Act.	The court relied on this Division Bench decision to conclude authoritatively that an Additional Registrar exercising the powers of the Registrar could make an appointment under Section 26(1D).
Chintappalli Agency Taluk Arrack Sales Co-op. Society Ltd. v. Secretary (Food and Agriculture), Government of Andhra Pradesh, AIR 1977 SC 2313	Decision was cited for the proposition that officials exercising the powers of the Registrar act under the control and superintendence of the Registrar (based on the phraseology of the relevant provision in that case).	The court held that the ratio of this Supreme Court decision was of no help to the petitioner in the present case because that decision turned on a different or "typical" phraseology; the court therefore did not apply it to invalidate the appointment challenged here.

Court's Reasoning and Analysis

The court proceeded through the following analytical steps, grounded in the text of the statute and the cited authorities:

The court began by noting the statutory framework: Section 3 (appointment of Registrar and other functionaries, power to confer Registrar's powers on persons appointed under subsection (2), and that such persons shall exercise powers subject to the general superintendence and control of the Registrar), Section 26(1D) (Registrar may appoint a government employee as Administrator where a committee has ceased to hold office), and Section 27(3) (Administrator shall be subject to the control of the Registrar).
On the question whether an Additional Registrar could appoint an Administrator under Section 26(1D), the court relied on the Division Bench authority in Ram Singh v. S.L. Kapur, which had held that an Additional Registrar exercising Registrar's powers was competent to appoint an Administrator. The court adopted that authoritative determination and treated the point as settled.
Turning to the question whom an appointing officer could appoint under Section 26(1D), the court observed that the provision permits appointment of "a Government employee" as Administrator. The court reasoned that the sole statutory requirement is that the appointee be a government employee, and the Registrar is undisputedly a government employee. Thus, absent any other express or implied bar, the Registrar could be appointed as Administrator.
The court then addressed the petitioner's contentions about propriety and apparent anomaly arising from a subordinate appointing a senior and the purported incompatibility with Section 3(4). The court made a distinction between legal bar and matters of propriety: legally there is no bar to appointing a person senior in status as an Administrator who would, by virtue of that appointment, be subordinate to the appointing officer. Any embarrassment or impropriety is a matter for the individual concerned, not a legal invalidity.
On the argument that Section 3(4) (that persons appointed under subsection (2) shall exercise powers subject to the general superintendence and control of the Registrar) prevents the Additional Registrar from appointing the Registrar as Administrator because that would create a supervisory contradiction, the court interpreted subsection (4) as applying to persons in the exercise of the functions of their own office — not to the scenario where such persons exercise the powers of the Registrar. The court reasoned that when the legislature intended subordination to apply even while exercising Registrar's functions, it would so provide; subsection (5) was cited to illustrate that the legislature had expressly provided for appeal consequences where powers of the Registrar are exercised by others.
The court found that the Supreme Court decision in Chintappalli Agency was not helpful to the petitioner because it turned on different statutory phraseology and did not dictate the outcome in this case.
Because the court concluded that the appointment of respondent No. 4 as Administrator was legally valid, it did not consider the respondents' alternative submission (that Section 29 or other provisions would cure a defective appointment or that bye-law-based appeal rights were not enforceable by writ) as those alternative arguments became unnecessary to decide.

Holding and Implications

HOLDING: The petition is DISMISSED.

Direct consequences for the parties:

The court held that an Additional Registrar exercising the powers of the Registrar is competent to appoint an Administrator under Section 26(1D) (following Ram Singh v. S.L. Kapur).
The court held that the Registrar (being a government employee) could legally be appointed as Administrator under Section 26(1D), and that the appointment of respondent No. 4 as Administrator was valid; consequently, the order Annexure P.5 dismissing the petitioner's appeal was upheld.
The petition was dismissed without any order as to costs.

Broader implications:

The opinion does not purport to set out or identify any new, novel legal principle beyond application of existing statutory interpretation and precedent; no broader change in law or new precedent is articulated in the text. The court resolved the specific statutory and factual disputes between the parties in favor of respondents by applying existing authority and statutory construction.

Petition dismissed

Show full summary ...

Ajmer Singh v. The Registrar, Co-Operative Societies, Punjab Chandigarh, And Others

The petitioner was holding an appointment as a Field Sub-Inspector in the Punjab State Co-operative Supply and Marketing Federation Limited, Chandigarh, respondent No. 5, hereinafter referred to as the Marfed and his services were terminated by the Managing Director thereof, vide order Annexure P. 2 attached to the writ petition. He challenged that order in appeal before the Board of Directors, which was dismissed, vide order annexure P. 5, by respondent No. 4 exercising the power of the Administrator in place of the Board of Directors having been appointed thereto in terms of Section 26 (1D) of the Punjab Co-operative Societies Act, 1961, hereinafter referred to as the Act. The petitioner has assailed through this writ petition both the orders. Order, Annexure P. 5, was inter alia, challenged on the ground that the appointment of respondent No. 4 as the Administrator of the Marfed was ab initio void and, therefore, the order that he passed suffered from the same defect. The petitioner also sought to have the orders, appointing respondent No. 4 as the Administrator and the one giving him extension, set aside.

2. In the written statement filed on behalf of the respondents, a preliminary objection to the entertainability of the writ petition against them was raised. The petition was, therefore, admitted to the Full Bench, which, vide its judgment dated 6-8-1980.* held that the petition against respondent No. 5 was not competent and against rest of them the same was held to be maintainable to the limited extent of the challenge to the order, annexure P. 5, that is, the order passed by respondent No. 4 dismissing the appeal of the petitioner as being violative of the provisions of Section 26 (1D) of the Act and the petition thereafter was ordered to be laid before a Single Bench to be dealt with on merits and that is how the petition has come up for hearing before me.

3. Mr. Baldev Singh Khoji, learned counsel for the petitioner, has argued that the appointment order in terms of Section 26 (1D) of the Act could not be passed by the Additional Registrar, as the same had to be passed by the Registrar, that is, the Registrar proper and not merely an incumbent who happens to exercise the power of the Registrar. In the alternative. Mr. Khoji canvassed that even if the Additional Registrar exercising the powers of the Registrar was held to be competent to appoint the Administrator in terms of the said section, fie could not appoint the Registrar of the Cooperative Societies to the said post.

4. As for the question as to whether the Additional Registrar could appoint an Administrator in terms of Sec. 26 (1D) of the Act, the matter has been set at rest authoritatively by a Division Bench of this Court in Ram Singh v. S.L Kapur, 1975 Cur LJ 218, holding that an Additional Registrar exercising the powers of the Registrar was competen to appoint an Administrator under Section 26 (1D) of the Act.

5. Coming now to the alternative submission advanced by Mr. Khoji on behalf of the petitioner, it may be observed that the learned counsel looked askance at the legality of the appointment of respondent No. 4 who happened to be the Registrar of the Co-operative Societies, by the Additional Registrar for the reason that the Administrator, by virtue of the provisions of Sec. 27 (3) of the Act has to function subject to the control of the Registrar and where the Registrar himself happens to be the Administrator, he cannot be subject to his own control. If he has to be subject to the control of the Additional Registrar exercising the power of the Registrar, then that position would not square up with the position envisaged by the provisions of Section 3 (4) of the Act which declares that the functionaries, including the Additional Registrar, would exercise their powers subject to the general superintendence and control of the Registrar.

That the officials exercising the powers of the Registrar have to act even in the exercise of such powers under the control and superintendence of the Registrar was sought to be supported from a decision of the Supreme Court reported in Chintappalli Agency Taluk Arrack Sales Co-op. Society Ltd. v. Secretary (Food and Agriculture), Government of Andhra Pradesh, AIR 1977 SC 2313.

6. Before embarking upon a consideration of the submissions advanced on behalf of the petitioner, the relevant provisions of the Act require to be noticed at this very stage.

Section 3 of the Act, which deals with the appointment of the Registrar, as also the other functionaries, is in the following terms.

“3. (1) The Government may appoint a person to be the Registrar of Co-operative Societies for the State.

(2) To assist the Registrar in his functions under this Act, the Government may appoint such number of Additional Registrars, Joint Registrars, Deputy Registrars, Assistant Registrars and other persons with such designations as it may think fit.

(3) The Government may, by general or special order, confer on any person appointed under sub-section (2), all or any of the powers of the Registrar under this Act.

(4) Every person appointed under subsection (2) shall exercise his powers subject to the general superintendence and control of the Registrar.

(5) Notwithstanding anything contained in this Act, where any power of the Registrar is exercised by any person by virtue of the order issued by the Government under sub-section (3), the order passed or decision made by such person shall for the purposes of appeal, be deemed to be the order or decision of that person and not of the Registrar”.

7. The relevant portion of Sec. 26 (1D) of the Act, which deals with the appointment of the Administrator, runs as follows :—

“26 (1D) Where any committee has ceased to hold office and no committee has been constituted in accordance, with the provisions of this Act and rules and bye-laws made thereunder, the Registrar may, by an order in writing, appoint a Government employee as an Administrator for such period as may, from time to time, be specified in the order and the Administrator shall, before the expiry of the period of his appointment, arrange for the constitution of a new committee in accordance with the provisions of this Act and rules and bye-laws made thereunder :

“******”

Section 27 (3) of the Act reads as under:

“27. (3) The administrator so appointed shall, subject to the control of the Registrar and to such instructions as he may from time to time give, have powers to perform all or any of the functions of the committee or of any officer of the society and take all such action as may be required in the interest of the society”.

I have already settled that the Additional Registrar could make an appointment in terms of Section 26 (1D) of the Act. The next question then is as to whom he could appoint. A perusal of Sec. 26 (1D) of the Act reveals that the person whom he could appoint can be any Government employee which, by implication, means only this that there is only one requirement, that is, that the person so appointed should be a Government employee. It is not in dispute that the Registrar is a Government employee. Hence unless there is any other bar, express or implied, he can be appointed as the Administrator.

8. It has been urged by the learned counsel for the petitioner that the Registrar cannot be appointed as the Administrator, firstly, for the reason that the appointing authority is his subordinate and in his capacity as an Administrator, he would be subordinate to his own subordinate and, secondly, it would be anomalous for the Additional Registrar to exercise control over respondent No. 4, when, by virtue of Section 3 (4) of the Act, he himself, being the Additional Registrar, has to act under the control and superintendence of the Registrar, respondent No. 4, even when exercising the functions of the Registrar.

9. In my opinion, there is no merit in either of the submissions of the learned counsel, for one thing legally there is no bar to the appointment as Administrator of a person senior in status to the person who is to effect the appointment. So, if the Registrar was to appoint a person of the status of a Secretary as an Administrator, in law there would be no bar to it. It is, however, a matter of propriety, for it would be embarrassing to a person senior in status to accept an appointment that would make him act as subordinate to his own subordinate or to a person who happens to be lower in official status than him. It is, however, for him to weigh such matters of propriety and if he does not feel embarrassed, then law does not bar him from taking up such a subordinate position.

10. As regards the question of the Registrar exercising control over the Additional Registrar even when the latter was to exercise the functions of the Registrar, it may be observed that sub-section (4) of Section 3 of the Act does not envisage such a situation. Sub-section (4), envisages that persons appointed under sub-section (2) in the exercise of their functions shall be subject to the general superintendence and control of the Registrar. This in the context would mean ‘in the exercise of their functions of that office and not in the exercise of the functions of the Registrar’. Where the legislature wanted such functionaries to be subordinate to the Registrar even when exercising the functions of the Registrar, it clearly revealed its mind by providing in sub-section (5) of Sec. 3 of the Act. A perusal of sub-section (5) would show that only for the purposes of appeal against then orders exercising functions of the. Registrar they are made subordinate to the Registrar, in that the appeal from their decisions would lie to the Registrar.

11. The ratio of the case of Chintapalli Agency Taluk Arrack Sales Co-op. Society Ltd., (AIR 1977 SC 2313) (supra) is of no help to the petitioner. That decision turned on the typical phraseology of the relevant section envisaging appointment of the Registrar and the persons exercising functions of the Registrar.

12. Mr. D.S Nehra arguing for respondents 4 and 5, that is, the Marfed and the Administrator thereof apart from submitting that the appointment of respondent No. 4 was legal and valid, in the alternative canvassed that even if the appointment of respondent No. 4 was held to be defective, the order passed by him could not be considered invalid in view of the provisions of Section 29 of the Act and further the alleged rules conferring right of appeal to the Administrator from the order of the Managing Director of the Markfed having been made by the Registrar in exercise of power under bye-law 26 (ii) of the Bye-laws of the Punjab State Co-op, Supply and Marketing Federation Limited, the same did not have a statutory character and, therefore, the same could not be enforced by invoking the writ jurisdiction of the High Court.

13. Since I have already held that the appointment of respondent No. 4 was legally valid and, therefore, the order passed by him, the validity whereof was questioned only on the ground of defective appointment of respondent No. 4 as the Administrtor, was valid and legal; it is unnecessary to go into alternative submission addresssed by Mr. Nehra.

14. For the reasons aforementioned, this petition is dismissed, but without any order as to costs.

Petition dismissed

Ajmer Singh v. The Registrar, Co-Operative Societies, Punjab Chandigarh, And Others

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Petitioner's) Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ajmer Singh v. The Registrar, Co-Operative Societies, Punjab Chandigarh, And Others

Comments