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Judgment
(1) This petition has been filed against the order dated 31-10-2017 (Annexure P-1) passed by Dy. Commissioner, Co-operatives, Distt. Ashoknagar in file No.Vidhi/2017/1251, thereby setting aside the order dated 24-10-2017 passed by Primary Krishi Sakh Co-operative Society Maryadit, Khejrakalan, Distt. Ashoknagar.
(2) The respondent no.5 is working on the post of Asstt. Samiti Prabandhak/Salesman in the petitioner society.
(3) The necessary facts for the disposal of the present petition in short are that the respondent no.5 was working on the post of Asstt. Samiti Prabandhak (lgk;d lfefr izca/kd). Financial irregularities of about Rs.6,09,600/- were alleged against the respondent no.5. Accordingly, a show cause notice was issued to the respondent no.5, however, he did not choose to file any reply to the said show cause notice, as a consequence thereof, a resolution dated 23-1-2017, was passed by the Board of Directors of petitioner Society, and accordingly, it was held that the act of respondent no. 5 amounts to grave misconduct and therefore, it was decided to issue a show cause notice to the respondent no.5, as to why he be not removed from the post of the society. The respondent no.5 raised a dispute under Section 55(2) of Co-operative Societies Act, and the Dy.Commissioner by an interim order dated 3-2-2017, stayed the operation of the resolution dated 23-1-2017.
(4) Thereafter, the S.D.O. (Revenue) Ashoknagar made an enquiry and it was found that the working of the respondent no. 5 is not in accordance with law and has committed serious misconduct, therefore, the S.D.O. (Revenue) by order dated 14-7-2017 issued a direction to the petitioner Society to initiate proceedings for removal of respondent no.5. The Collector, Ashoknagar also, by its order dated 29-9-2017, issued a show cause notice to the Society as to why the licence of the fair price shop, being run by the petitioner Society be not cancelled due to serious discrepancies/illegalities.
(5) Accordingly, in response to the letter dated 14-7-2017 issued by S.D.O. (Revenue) a notice dated 25-8-2017 was issued to the respondent no. 5, thereby calling upon him to show cause within 7 days, as to why action be not taken against him for removing him from the post. However, it appears that the respondent no.5, did not respond to the show cause notice issued by the petitioner Society, and accordingly, a resolution dated 23-10-2017 was passed and consequently, the order of termination of services of respondent no.5 was passed on 24-10-2017.
(6) It appears that the Dy. Commissioner, Co-operatives/respondent no.2, took suo motu cognizance against the order dated 24-10-2017 and quashed the said order by exercising his administrative powers.
(7) Challenging the order passed by the Dy. Commissioner, Co-operative Societies/respondent no.2, it is submitted by the Counsel for the petitioner, that the respondent no.5 was working on the post of Asstt. Society Manager, and was also looking after the Fair Price Shop, which was being run by the Society. Several Complaints of financial irregularities were received against the respondent no.5. The S.D.O. (Revenue) had conducted an enquiry and accordingly, by order dated 14-7-2017, he had directed the petitioner to take action against the respondent no.5. Even the Collector, by its order dated 29-9-2017, had issued notice to the President of the petitioner Society requiring it to show cause to the irregularities which was being committed in the Fair Price Shop. Accordingly, a notice was issued to the respondent no.5, but he did not respond to the same and therefore a resolution was passed, to remove him from service and order dated 24-10-2017 was passed. The respondent no. 5 did not challenge the said order but the Dy. Commissioner, Co-operatives/respondent no.2, took a suo motu cognizance of the same and quashed the said order on administrative side, whereas he has no authority whatsoever, to take suo motu cognizance on administrative side. Further, before setting aside the order dated 24-10-2017, the Dy. Commissioner, Co-operatives/respondent no.2, did not issue any show cause notice to the petitioner Society. It is submitted that the action was taken by the petitioner Society, on the directions given by the S.D.O. as well as in the light of the letter written by the Collector. It is further submitted that the mala fides of the Dy. Commissioner Co-operatives/respondent no.2 is writ large because inspite of the interim order passed by this Court, the respondent no. 5 was not only allowed to work as Asstt. Society Manager, but specific orders were also passed in this regard. It is further submitted that where the order is without jurisdiction, then it is a nullity, therefore, the same cannot be allowed to stand.
(8) Per contra, it is accepted by the Counsel for the respondent no.5, that the respondent no.5, is still working on the post of Asstt. Society Manager. However, it is submitted that the petition has been filed without proper authorization. The resolution (Annexure P2) has been signed by the President only, whereas it should have been signed by atleast two persons. It is further submitted that the petitioner has an alternative remedy of filing appeal/revision under Section 78/80 of Co-operative Societies Act. The respondent no.5 has submitted complaints to the Dy. Commissioner, Co-operatives, S.P. Ashoknagar, S.H.O., Police Station Kachner Distt. Ashoknagar, in relation to illegally putting lock on the fair price shop by the President, as he was demanding 5 quintal of wheat, 50 kg of Sugar and 100 litres of kerosene oil every month and he used to abuse the respondent no.5. A F.I.R. has also been lodged against the President. The Manager of the Society has also given a certificate that the work of the petitioner as Asstt. Salesman is very good and, therefore, he should be allowed to continue to work. Several personal allegations have also been made in the return against the then President of the petitioner Society. It is further submitted that service Rules framed by the Registrar, Co-operative Societies Act, are applicable to the employees, and his services have been terminated without following the procedure laid down in प्राथमिक कृषि साख सहकारी संस्था; वृहत्ताकार साख सहकारी संस्था, आदिम जाति सेवा सहकारी संस्था, कृषक सेवा सहकारी संस्था सेवाद्धकर्मचारी सेवा नियोजन, निबंधन तथा कार्य स्थिति नियम which were adopted by Commissioner, Cooperative and Registrar, Co-operative Societies, Madhya Pradesh by order dated 30-8-2013. However, no reply has been filed by the respondent no. 5 to the order dated 14-7-2017 issued by the S.D.O. and order dated 29-9-2017 issued by the Collector.
(9) The respondents no.1 to 4 (although mentioned as 1 to 5) have also filed their separate return and have taken the objection of availability of alternative remedy. They have also taken a stand that the impugned order dated 31-10-2017 was passed by the Dy. Commissioner/respondent no.2, in his administrative capacity, however, there is nothing in the return to show that how the Dy. Commissioner Co-operatives/respondent no.2 can exercise his suo motu powers under administrative capacity.
Heard the learned Counsel for the parties.
The petitioner in para 5.4 of its petition has pleaded as under :-
''5.4.That, thereafter the Collector and the S.D.O. Made the enquiry and it was found that the working of the respondent no.5 is not in accordance with the provisions of Co-operative Act but the same is illegal. They on enquiry also found that there are serious misconduct committed by the respondent no.5 and accordingly, the petitioner was directed to do the needful. Copy of such reports are annexed hereto and marked as Annexure P/5.''
The respondent no. 5 in his return has pleaded as under :-
''D. That, facts mentioned in Para 5.4 of petition as stated by petitioner being matter of record needs no reply.''
The respondents no.1 to 4 in their return have pleaded as under :-
''5.4.That, the show cause notice issued to the respondent no. 5 and correspondence made by the authority vide letter dated 14-7-2017 needs no reply, however, matter is sub judice hence the order passed as annexure P/1 is absolutely justified and warrants no interference.''
(10) Thus, neither the respondents no.1 to 4, nor the respondent no. 5 have disputed the findings recorded by the S.D.O. (Revenue) Ashoknagar and the notice issued by the Collector, Ashoknagar. Therefore, by not disputing the contents of the aforementioned orders, the respondents have created a situation, where it can be safely inferred that the contents of the order dated 14-7-2017 issued by S.D.O. (Revenue), Ashoknagar, and the notice dated 29-9-2017 issued by Collector, Ashoknagar, have been admitted by all the respondents. Both these orders speak about the financial and other irregularities in the Fair Price Shop, which was being looked after by the respondent no.5. Further, after receiving the letter dated 14-7-2017, a show cause notice dated 25-8-2017 (Annexure P/6) was also issued to the respondent no.5, but it appears that the respondent no.5 did not care to even respond to the said notice.
(11) So far as the authority of the Dy.Commissioner, Co-operatives /respondent no.2 is concerned, except by mentioning that the Dy. Commissioner, Co-operatives/respondent no.2 has passed the impugned order in exercise of its administrative powers, nothing has been pointed out by the respondents, to show that the Dy.Commissioner, Co-operatives/respondent no.2 has any suo motu powers to revise the order passed by the Society, on administrative side. Further, when the respondent no.5 had not challenged the order dated 24-10-2017, then there was no occasion for the Dy. Commissioner, Co-operative Societies, to pass the impugned order. Further, there is nothing in the impugned order to show that any show cause notice was ever issued to the petitioner, before passing the impugned order.
(12) The petitioner in para 5.6 of the petition has pleaded as under :
''5.6 That, information was forwarded to the Deputy Commissioner, however, taking cognizance of such an information forwarded by the petitioner, the Deputy Commissioner without issuing even notice to the petitioner and treating it to be in-violation of the interim order passed by the Deputy Commissioner, staying the order passed by the Deputy Commissioner, the order has been set aside by an administrative order. It is clearly stated here that the order impugned dated 31-10-2017 passed by the respondent Deputy Commissioner is without authority of law and in as much as he has not applied his mind and moreso this cannot said to be quasi judicial exercise of powers.''
(13) The respondents no. 1 to 4, in their return has pleaded as under :
''5.6 That, in view of the preliminary submissions and for the reasons stated therein the contents of this para needs no reply.''
(14) The respondents no. 5, in his return has pleaded as under :
''F. That facts, mentioned in para 5.6 of petition as stated by petitioner being matter of record needs no reply. However, it is submitted on behalf of answering respondent that the resolution dated 23-1-2017 (Annexure P/3) has been illegally passed against the answering respondent, therefore, the Deputy Commissioner, Sahakari Sanstha, Distt. Ashoknagar, vide its order dated 3-2-2017 (Annexure P/4) has stayed the effect and operation of resolution dated 23-1-2017. It is further submitted that the notice for calling the meeting to have been served before seven days which has not been done by the petitioner society.''
(15) Thus, it is clear that the order dated 31-10-2017 passed by the Dy. Commissioner, Co-operatives/respondent no.2, was not only without jurisdiction, but the same was passed without even issuing notice to the petitioner society.
(16) It is submitted by the Counsel for the respondent no.5, that since, the resolution dated 23-10-2017 passed by the Board of Directors and the order dated 24-10-2017 passed by the petitioner Society was in utter disregard and in violation of the Service conditions (प्राथमिक कृषि साख सहकारी संस्था ;वृहत्ताकार साख सहकारी संस्था, आदिम जाति सेवा सहकारी संस्था, कृषक सेवा सहकारी संस्था सेवाद्धकर्मचारी सेवा नियोजन, निबंधन तथा कार्य स्थिति नियम), therefore, the same was a nullity and thus, has been rightly set aside by the Dy. Commissioner, Co-operatives/respondent no.2, by passing an administrative order.
(17) The submission made by the Counsel for the respondent no. 5 cannot be accepted for the simple reason, that any order passed in contravention of any service condition, cannot be termed as a "void" order, but it may be an "illegal order'', and an "illegal order" is binding on the parties, unless and until the same is set aside. The respondent no.5, admittedly did not challenge the order dated 24-10-2017 or resolution dated 23-10-2017. Thus, this Court is of the considered opinion, that the order dated 24-10-2017 cannot be termed as "void" order.
The Supreme Court in the case of State of Kerala Vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, reported in (1996) 1 SCC 435 has held as under :-
''7. It is not necessary for us to go into the merits of the case. We are of the view that the order passed inter parties in C.R.P. 3440 of 1977 dated 2.11.1977, has become final, and it concludes the matter. The observations made in the proceedings. at the instance of the 1st respondent regarding the validity of the order of the Board, in C.R.P. 3696 of 1977. will not, in any way, effect the legality and validity of the proceedings declining to implead respondents No. 3 and 4 or the order passed in Revision therefrom- C.R.P. 3440 of 1977. It is true that the proceedings dated 28.6.1977 was observed to be void in law in C.R.P. 3696 of 1977, filed by the first respondent. In our opinion, even a void order or decision rendered between parties cannot be said to be non- existent in all cases and in all situations. Ordinarily, such an order will, in fact be effective inter parties until it is successfully avoided or challenged in higher forum. Mere use of the word "void" is not daterminative of its legal impact. The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise and in this case, the only complaint about the initiation of the suo moto proceedings by Board was, that it was not initiated on intimation by the State Land Board about the non-filing of the statement as required by Section 85(7) of the Kerala Land Reforms Act. In our opinion, this is not a case where the infirmity is fundamental. It is unnecessary to consider the matter further.
In Halsbury's Laws of England, 4th Edn., (Re-issue) Vol. 1(1) in para 26, p. 31, it is stated, thus:
"If an act or decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes; and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of competent jurisdiction. Until its validity is challenged, its legality is preserved."
In the Judicial Review of Administrative Action, De Smith, Woolf and Jowell, 1995 Edn., at pp. 259-60 the law is stated thus:
"The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows:
(1) All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent jurisdiction."
Similarly, Wade and Forsyth in Administrative Law, Seventh Edn., 1994, have stated the law thus at pp.341-342:
"... every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful action is by recourse to the law. In a well-known passage Lord Radcliffe said:
'An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.'
This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects."
(18) Thus, this Court is of the considered opinion, that the Dy. Commissioner Co-operatives/respondent no.2 had no authority to set aside the order dated 24-10-2017 by exercising his administrative powers, because the respondent no.5 had not raised a dispute under Section 55(2) of M.P. Co-operative Societies Act, against the order dated 24-10-2017.
(19) So far as the question of availability of alternative remedy is concerned, it is not an absolute bar and when an order is found without jurisdiction and in violation of Natural Justice, then this Court is well within its power to exercise its power under Article 226/227 of the Constitution of India.
(20) So far as the authority of filing this petition is concerned, this Court by a detailed order dated 07/03/2019 has already considered this aspect.
(21) It is also mentioned in the impugned order that the order dated 24-10-2017 has been passed in violation of interim order dated 3-2-2017 passed by Dy. Commissioner, Co-operatives/respondent no.2.
(22) It appears that earlier by resolution dated 23-1-2017, the petitioner Society had decided to discontinue the services of the respondent no.5, and the said resolution dated 23-1-2017 was challenged by the respondent no.5 by raising a dispute under Section 55(2) of the M.P. Co-operative Societies Act. The Dy. Commissioner, Co-operatives, by an interim order dated 3-2-2017 had stayed the effect and operation of the resolution dated 23-1-2017. However, the subsequent order dated 24-10-2017 is not based on the resolution dated 23-1-2017. As already pointed out, the S.D.O. by order dated 14-7-2017 had directed the petitioner Society to initiate action against the respondent no.5 for removing him from his post, because the complaint made against him was found to be correct. Similarly, the Collector by order dated 29-9-2017, had issued notice to the President of the Petitioner Society with regard to the illegalities/irregularities which were found in the Fair Price Shop. Accordingly, a fresh show cause notice dated 25-8-2017 was issued to the respondent no.5, which was not replied by the respondent no. 5 and accordingly, the Board of Directors, by resolution dated 23-10-2017, decided to remove the respondent no.5 and accordingly, order dated 24-10-2017 was passed, thereby removing him from his post. Thus, it is clear that the subsequent order dated 24-10-2017 was passed on the basis of fresh cause of action. Thus, it cannot be said that the order dated 24-10-2017 was passed in contravention of the stay order dated 3-2-2017 passed by the Dy. Commissioner, Co-operatives.
(23) This Court by order dated 15-11-2017 had passed the following interim order :-
"Meanwhile, effect and operation of the impugned order dated 31-10-2017 (Annexure P/1) shall remain stayed and no effect would be given to the said order till next date of hearing."
(24) Thus, it is clear that by virtue of interim order dated 15-11-2017 passed by this Court, the order of removal dated 24-10-2017 had remained in force, but it has been admitted by the Counsel for the respondent no.5, that the petitioner is still working and was not removed. It is also admitted that, a contempt petition No.2677 of 2017 is also pending. Thus, it is clear that inspite of clear order passed by this Court, the respondents have allowed the respondent no. 5 to continue to serve as Asstt. Samiti Prabandhak. Thus, the action of the respondents cannot be appreciated. However, as the contempt petition is still pending, therefore, this Court is refraining itself in making any further observation in this regard.
(25) Thus, this Court is of the considered opinion, that the order dated 31-10-2017 passed by the Dy. Commissioner, Co-operatives (Annexure P/1) was without jurisdiction and was passed in utter violation of principles of natural justice. Accordingly, the order dated 31-10-2017 passed by the respondent no. 2/Dy. Commissioner, Co-operatives is hereby quashed.
(26) As it has been admitted that the respondent no. 5 is still working inspite of the clear interim order passed by this Court, it is directed that the respondent no.5 be immediately removed from his post. The Salary/ emoluments paid to the respondent no.5 from 15-11-2017 till today, be recovered from the respondent no. 5 as well as from the authorities, who in utter violation and disregard to the interim order dated 15-11-2017 passed by this Court, has allowed him to continue to work. Let the entire emoluments paid to the respondent no.5 from 15-11-2017 till today, be recovered within a period of 3 months from today. The Principal Secretary, Department of Co-operative is directed to immediately initiate the action in this regard.
(27) The Principal Secretary, Department of Co-operative is directed to submit the compliance report to the Principal Registrar of this Court, within a period of 4 months today.
(28) With aforesaid observations, the petition is Allowed.
(29) A copy of this order be immediately sent to the Principal Secretary, Co-operative for necessary information and compliance.