Posted On by &filed under Calcutta High Court, High Court.


Calcutta High Court
Jagadish Chowdhury vs State Of West Bengal And Ors. on 16 August, 2000
Equivalent citations: AIR 2000 Cal 269
Author: D Seth
Bench: D Seth


ORDER

D.K. Seth, J.

1. A notice for expulsion of the petitioner was issued by the Co-operative Society, to which he had submitted a reply. The reply having been unsatisfactory, an enquiry was initiated in which the petitioner was expelled from the membership. Admittedly the petitioner was a worker-member. By reason of such expulsion from membership he was also deemed to have been removed from service and that was the intended purpose of the expulsion, as is contended on behalf of the respondent Co-

operative Society. The petitioner raised a dispute under Section 95 before the Arbitrator who had passed an award directing the petitioner to appeal against the expulsion order to the general body. An appeal has since been filed by the petitioner before the Tribunal challenging the award. In the absence of one of the members of the Tribunal, the Tribunal is not functioning. At this stage the petitioner approaches this Court for appropriate orders with regard to the question of removal from service.

2. Mr. Milan Bhattacharjee, learned Counsel appearing on behalf of the petitioner contends that the expulsion of the membership cannot be equated with removal from service. The petitioner being a paid employee he could not be removed from service simply by adopting a procedure for expulsion from membership. According to him the removal from service can be effected only in terms of proviso to Sub-section (10) of Section 27 of the Co-operative Societies Act, for which a proceeding under Rule 108 is to be initiated. According to him the service of the petitioner is distinctly separate right from that of his membership though he may be a worker-member of the Society. Therefore, expulsion from membership cannot result into termination of service.

3. The learned Advocate appearing on behalf of the respondents contends that there are two kinds of members in the Society; one are paid employees who are not members and the other are member-workers. The petitioner is a worker by virtue of membership. Therefore, there is no existence of his entity except that of a member, by virtue whereof he is a worker of the Society. Therefore expulsion from membership would amount to his expulsion from the Society with whatever right he could have, since he was a member-worker. The alleged distinction sought to be made by Mr. Bhattacharjee, according to the counsel for the respondents is irreconcilable and fallacious. Then again according to him the petitioner had submitted to the jurisdiction by resorting to Section 195 of the Act challenging the order of expulsion of membership resulting into removal from service. Thus he had admitted the situation. He cannot now turn around and raise a different question before this Court. He had referred to the provisions of Subsection (10) of Section 27 to contend that by reason of being worker-member, he could be

permitted in the board because of the provision provided thereunder, otherwise he could not have been a member of the Board. Relying on the subject, as mentioned in the Memorandum of Association, he contends that primary membership lies with the workers of the Society and therefore there could not be a dual entity of the member having two capacity namely one is worker and other is member. It combines in one and there is but one entity and that is of worker. Thus according to him expulsion from membership would amount to removal from the service of the Society itself. Therefore, the petitioner has a remedy of preferring an appeal before the General Body. At the same time, he also refers to Sub-rule (15) of the Rule 108 of the Co-operative Societies Rules and contends that even against the order of removal he has a right to prefer an appeal before the General Body. The award having been passed directing the petitioner to prefer appeal before the General body, the petitioner could neighter maintain the appeal before the Tribunal and nor could maintain this petition. He alternatively argues that the petitioner could not have approached the arbitrator under Section 95 of the Act with regard to the termination of service which was a dispute outside the scope of Section 95. He ought to have approached the Industrial Tribunal. At the same time he contends that he having submitted to the jurisdiction he cannot raise these questions before this Court. Therefore the petitions should fail.

3A. I have heard both the counsel appearing on behalf of the parties at length. From the object it appears that the Society is a society with a purpose of providing employment among the members. The membership was available to unemployed engineers and workers both industrial and agricultural. The rights of membership are enumerated in the bye laws in Clause 9 which are as follows:– “A member shall cease to be a member if he transfers all the shares held by him, losses his qualification for membership, resigns his membership. Is expelled, dies, has been adjudged by a competent Court to be insolvent, or of unsound mind, and has been punished with imprisonment or fine or both for an offence Involving moral turpitude, or has been employed elsewhere.”

4. Clauses 11 and 12 deal with withdrawal from membership and removal of a

member respectively. Suspension and expulsion of a member and cessation of membership are provided in Clauses 13 and 14. The member withdrawing or removed or expelled from the Society shall be entitled to repayment of the value of is shares after the share or shares are transferred to some other person qualified under the Act and the Rules in terms of Clause 15. In terms of Clause 16 the liability of a member is limited to the value of the shares held by him. In order to appreciate the situation we may refer to the relevant clauses referred to above.

“Clause 9 : A person, except the State Govt. nominee, shall not acquire the rights and privileges of membership until he has :–

(a) paid the admission fee;

(b) subscribed at least one share and has made the payment due on account of such share; and

(c) signed a declaration to the effect that he shall be bound by these bye-laws;

(d) signed the register of members.

Clause 11 : A member, if he is not in debt to the Society or is not a surety may withdraw from the Society after giving in writing one month’s notice to the Society.

Clause 13 : A member who ceases to be qualified to be a member may be removed by the board of directors.

Clause 13 : (1)The board of directors may after the investigation into the conduct of a member and after taking such evidence as may be necessary fine, suspend or expel him for any of the following reasons :–

(a) Wilful contravention of the Act, the Rules and the Bye-laws of the Society,

(b) Acts which in the opinion on the board of directors are prejudicial to the interest of the Society.

(c) Wilful default, dishonesty or infringement of the terms of any contracts entered into as a member of the Society.

(2) A member suspended shall not be entitled to exercise any of the rights or enjoy any of the privileges of membership during the period of suspension.

(3) The period of suspension shall not exceed sixty days without the sanction of the Registrar. A member fined suspended or expelled may appeal to the General Body against the order of board of the directors within one month from the date of the communication of the order of punishment.

(4) The board of directors on receipt of the appeal shall convene a Special General Meeting within three months of its receipts for disposal of the appeal; provided, if an ordinary General Meeting is held within the period, a Special General Meeting shall be held to consider the appeal immediately before the ordinary General Meeting Is held.

Clause 14: A member shall cease to be a member if he :–

(a) transfers all the shares held by him;

(b) losses the qualification for membership;

(c) resigns his membership;

(d) is expelled;

(e) dies;

(f) has been adjudged by a competent Court to be Insolvent or of unsound mind;

(g) has retired on superannuation attaining the age of 58 years;

(h) has been punished with imprisonment or fine or both for an offence involving moral turpitude; and

(i) has been employed elsewhere.

Clause 15 : Subject to a provision of the act and the Rules a member withdrawing, removed or expelled from the Society shall be entitled to repayment of the value of his share after the share or shares are transferred to some other persons qualified under the Act and the Rules to be the transferee of the share or shares.

Clause 16 : The liability of a member for the debts of the Society shall be limited to the value of the shares held by him. The liability of State Government and Financing Bank be limited to the shares subscribed by them.”

5. A plain reading of the above provision indicates that the membership is confined only to the Society. It does not speak about his employment either in the Society or outside. The rights of membership does not include rights available to a worker. It has not made any distinction with regard to member-workers and non-member-worker. There is nothing to indicate that a member worker can be deprived of his dual capacity or can be combined to one entity so as to mean that expulsion from membership shall be expulsion from employment as well. Then again such a proposition can also not be possible within the scheme of the bye-laws.

It has made no distinction between a worker-member of the Society and a non-worker member or between a member worker or a non-member worker. Under Section 95, the dispute has been confined to the affairs of the Society excluding those relating to conditions of service of paid employees. The condition of service is governed by provision made in the Co-operative Societies Rules. Distinct and different provisions has been made in the Rules with regard to expulsion from membership and removal from service. Sub-section (10) of Section 27 prescribes that an employee may be elected on the Board except unless he comes within the exception provided thereunder. There is nothing in the Rules or in the bye-laws that a worker cannot be a member of the Society, or that by virtue of his ceasing to be a member of the Society a member-worker will cease to be in employment of the Society. However, it is an admitted position as contended by the respondents that a member can be a worker and can continue in the Society and can also be elected in the board by reason of exception under Sub-section (10) of Section 27. The provisions contained in Clauses 9, 11, 12, 13, 14, 15 and 16 does not indicate that there is but one combined capacity and entity in a member-worker. In the absence of specific provisions in the bye-laws, it is very difficult to accede to the contention of the learned counsel appearing on behalf of the respondents to that extent. The dual capacity cannot be ignored under the provisions of the Act and Rules and the bye-laws as discussed hereinbefore. Therefore in order to remove an employee, whether a member or non-member, the provisions of Rule 48 and those Rules 108 are required to be applied. As such the removal from membership cannot be treated to be a removal from service which can be effected only through the procedure laid down under Rule 108 as contemplated in Rule 48.

6. The right of a member is completely distinct and different from those of an employee. The rights of a member is governed by the bye-laws quoted hereinbefore. None of these provisions speaks anything about employment. Whereas the rights of a worker are governed under Rule 48 read with Rule 108 of the Rules. The separate, distinct and different procedure have been provided for governing the membership and employment respectively. This distinction is also recognised in Section 95 which deals the disputes

with regard to the affairs of the Society. It excludes the area governing the service condition of a paid employee. The affairs of the Society does not include the area of employment of its own employees.

7. By reason of the scheme of the Society as revealed from the purpose and object it is abanduntly clear that the objects are to find out suitable employment for its members. Thus a member may be employed in the Society or elsewhere. It is altogether a distinct and different capacity or entity of a member. If a member employed in an organisation other than the Society then his expulsion from membership in no way can affect his employment elsewhere. If it is so then how it could be affected when he is employed in the Society. The member-worker has a distinct and separate dual capacity and entity. As member he has distinct rights and liabilities. Similarly as worker he has altogether distinct and separate rights and liabilities. Both can never be combined into one.

8. This is clear from Clause 14 of the bye-laws, which while prescribing grounds for cessation of membership does not include termination of service. If termination of service does not amount to cessation of membership then the reverse can also not be true. Inasmuch as nowhere in the bye-laws it has been provided that expulsion of a member worker would result into termination of service.

9. Termination of service can be effected on certain grounds which are foreign to the ground for expulsion and vice versa. Thus one does not include the other.

10. Thus the counsel for the respondent is correct in his submission that so far as question of removal is concerned the same cannot be the subject-matter of Section 95 of the Act and the remedy of the petitioner is available before the industrial forum. But since the expulsion from membership cannot affect the service of the petitioner the same cannot amount to removal from service. Therefore there is no scope for the petitioner to approach the Tribunal at this stage unless the respondents terminates the petitioner’s service. Therefore, so far as the order of expulsion is concerned the same will not affect the service of the petitioner. It will be open to the respondent to take appropriate steps, if they are so advised, as against the petitioner if they propose to terminate

the service of the petitioner in accordance with law following the provisions contained in Rule 108 read with Rule 48 of the Rules.

11. It may be noted that I have not entered into the merits of this case. The petitioner’s right with regard to his service may be determined by the Board or the general body according to its own discretion as they may deem fit and proper. All points shall remain open if required for being agitated before any other forum if occasion so arise.

12. With the above observation, the petition is disposed of without any order as to costs.

13. Xerox certified copy be made available to the learned Advocates appearing for the parties.


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