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Judgment
R.S. Garg, J.—Being aggrieved by Annexure-1 office order No. 48 99-2000/151 dated 23.9.2003 issued by the Managing Director putting the present applicant/Petitioner under suspension, the Petitioner has come to this Court inter alia submitting that the Managing Director under the Bihar State Scheduled Caste Co-operative Development Corporation Limited Bye-laws is not authorized to place him under suspension therefore the order is patently illegal and deserves to be quashed. Shri M.I. Hussain, learned Counsel for the Respondent Corporation vehemently submitted that the Board is not in existence, therefore, the powers of the Board would be exercised by the Managing Director. Though there are no provisions in the bye-laws of the said Respondent Corporation that in absence of the Board who would look after the functions of the Board, but the learned Counsel for the Respondents relied upon Rule 34 of the Bihar Co-operative Societies Services Rules, 1959.
Learned Counsel for the Petitioner took an exception to these argument and Shri P.K. Shahi, learned Counsel for the Respondent No. 2 too, to nip in the bud submitted that the Board is very much in existence and the submission made by the counsel for the Respondent Corporation are calculated and have been made to mislead the Court.
Learned Counsel for the Corporation when was straight way asked as to whether the Board is in existence or not with great difficulty and reluctance made a submission that the Chairman of the Board was elected but as he is facing certain disqualification under the bye-laws, in his opinion no Board is functioning. When a challenge was again thrown to him that other members of the Board are still functioning, counsel for the Corporation submitted that other members of the Board are functioning but in his submission as there is no Chairman to preside over the meetings of the Board he thought that there is no Board.
It is most unfortunate that a false plea has been raised before the Court to negative the claim of the Petitioner. It is also unfortunate that a counsel of the eminence is becoming result oriented and is trying to mislead the Court. At least on the four occasions he submitted that there is no Board but he nowhere that the member of the Board are available but they do not have the Chairman or the Chairman for one reason or the other can not preside over.
It is expected of the counsel appearing in the High Court that in stead of being result oriented, he would be fair in his profession in the Court.
Learned Counsel for the Petitioner submitted that powers and duties of the Managing Director are well described in bye-law No. 42. Under Clause (v) of bye-law 42 the Managing Director can suspend, remove, dismiss, fine or otherwise punish all salaried servants of the Corporation except those mentioned in Clause XIV of bye-law 35 in accordance with the rules, made in this behalf by the Board. Clause 5 of bye-law 42 would simply mean that the persons who are well described in Clause XIV of bye-law 35 are beyond the jurisdiction of the Managing Director and all others can be suspended etc. by him.
The larger question raised by the learned Counsel for the Petitioner is that a Secretary can only be appointed by the Board, therefore, under Clause XIV of bye-law 35 the Board only would be entitled to take an action to suspend, remove, dismiss or inflict any kind of punishment to such officers except those who are on deputation to the Corporation.
The Petitioner was earlier appointed on some other substantive post but vide letter No. 29/03/128 dated 22.7.2003 (Annexure-4) issued by the Managing Director, he has been appointed by the Board to work as a Secretary for six months. The resolution of the Board dated 3.7.2003 has also been mentioned in Annexure-4.
Undisputedly in light of Annexure-4 the Petitioner has been appointed as Secretary by the Board in exercise of its powers vested in the Board under bye-law No. 35. If the Petitioner has been appointed as Secretary under Clause XIV of bye-law No. 35 then the Petitioner would come out of the purview of Clause V of bye-law 42 and the Managing Director would have no jurisdiction to pass impugned order nor would be entitled to issue any orders suspending, removing, dismissing, imposing fine and otherwise punishing the Petitioner.
The Board alone would be competent to take action against the Petitioner. The order contained in Annexure-1 is bad and invalid, it can not be allowed to stand, it deserves and is accordingly quashed. The Respondent Managing Director is hereby directed to allow the Petitioner to continue as Secretary of the Corporation for the period of appointment or so long as the Board does not take a decision or pass an order against him.