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M. Srinivasan, C.J.—This writ petition is filed by the Co operative Society challenging the validity of an order passed by the Joint Secretary (Co-operation) to the Government of Himachal Pradesh in Case No. 17/96 on 20-12-1996 The relevant facts are as follows:
The 3rd Respondent was appointed as Secretary of the Petitioner Society w.e.f. 31-3-1993. In the month of December 1995 the 3rd Respondent contested the election for the post of Pradhan to Gram Panchayat Chaplah and was declared elected to the said post. According to the Petitioner the 3rd Respondent did not seek any permission from the Society for contesting the election, nor did he apply for casual leave or any other leave from the Society. It is also stated in the writ petition that a letter was received from the Assistant Registrar, Co-operative Societies dated 8-1-1995 alongwith complaint of one Shri Satpal Singh, complaining against Respondent No. 3 continuing as the Secretary of the Society as well as Pradhan, Gram Panchayat Chaplah. On receipt of the said letter the Society issued notice to the 3rd Respondent on 15-1-1996 calling upon him to either resign from the post of Secretary of the Society or submit a reply to the Co-operative Society in writing on or before 29-1-1996. According to the Petitioner there was no reply by the 3rd Respondent and the Society passed a resolution on 9-5-1996 terminating the services of the 3rd Respondent w.e.f. 9-5-1996.
The 3rd Respondent preferred an appeal to the 2nd Respondent u/s 93 of the Himachal Pradesh Co-operative Societies Act (hereinafter referred to as ''Act''). The said appeal was registered as case No. 17/96 which was disposed of by order dated 20-12-1996. In the order of the Joint Secretary, he has directed the 3rd Respondent to intimate the Assistant Registrar, Co-operative Societies and the Society in writing as to which post he wants to retain, either of the two within 10 days from the date of the order failing which the decision of the society terminating his services will be treated as final and the Society will be at liberty to take further action to fill-up the post of Secretary on regular basis. By the said order, the interim stay granted by the Joint Secretary by order dated 18-5-1996 was continued for a period of 10 days and thereafter it shall stand vacated The 3rd Respondent was further informed by the order that no extension would be granted to him with regard to the choice which he should make as directed by the said order.
The Society has preferred this Writ Petition challenging the validity of the order of the Joint Secretary on the ground that no appeal was maintainable before the Joint Secretary. According to the Petitioner, the order which was challenged before the Joint Secretary was stated to be an order dated 30-4-1996 passed by Assistant Registrar, Co-operative Societies. Dehra, but it was not an order at all. According to the Petitioner, it was only a show cause notice issued to the Society with copy marked to the 3rd Respondent and no appeal was maintainable against the same u/s 93 of the Act which is the provision relating to appeal.
The 3rd Respondent has taken notice and the Advocate General has taken notice for Respondents 1, 2 and 4. The learned Advocate General also supported the contention of the Petitioner that no appeal was maintainable u/s 93 of the Act against show cause notice issued by the Assistant Registrar Co-operative Societies to the Society with a copy marked to the 3rd Respondent.
The 3rd Respondent has raised the following contentions:
(A) The Society has not placed before this Court the relevant facts in this case. According to 3rd Respondent, the Society passed a resolution permitting the 3rd Respondent to contest the election inspite of the fact that he was Secretary of the Society. Further after the notice dated 15-1-1996 was received by the 3rd Respondent, he sent a reply, whereupon the Society passed a Resolution on 31-1-1996 holding that it was not necessary for the 3rd Respondent to resign either post as the Society was not dependent upon any funds of the Government. The Petitioner has failed to make a reference to either of the Resolutions in the Writ Petition;
(B) The Petitioner has not even chosen to place before the Court the communication from the Assistant Registrar of Co-operative Societies, Dehra dated 30-4-1996 According to 3rd Respondent, it is really a direction issued to the Society by the Assistant Registrar directing the Society to terminate the services of the 3rd Respondent within a period of one week therefrom and it was not merely a show cause notice;
(C) The communication of the Assistant Registrar is an order directing the termination of services by the Society or at any rate it is an award within the meaning of Section 73 of the Act. Learned Counsel contends that Section 72(C) provides for decision of the disputes between the Society on the one hand and its officer on the other hand by arbitration. Section 73(1)(a) provides that the Registrar may decide the dispute himself. According to the learned Counsel, in this case the Assistant Registrar is entitled to exercise the power of the Registrar as it is a primary society. According to the learned Counsel, the Assistant Registrar has thus exercised the power u/s 73(1)(a) and decided that the services of the 3rd Respondent as Secretary should be terminated. That order of the Assistant Registrar will fall within the ambit of Section 93(h) and consequently an appeal would lie to the Government u/s 93(2)(a); and
(D) Alternatively, the appeal to the Joint Secretary could be treated as a Revision within the meaning of Section 94 of the Act. Learned Counsel contends that if an appeal does not lie u/s 93, then it is open to the Government to examine the record of any proceedings of the Registrar or any other person subordinate to him and thus the Joint Secretary was entitled to look into the proceedings of the Assistant Registrar and pass an appropriate order
It is contended by the learned Counsel for the Petitioner that there was no appeal against the Resolution passed by the Society on 9-5-1996 which is the only cause of action of the 3rd Respondent. According to the learned Counsel for the Petitioner, the appeal could have been filed against the said resolution only to the Registrar and not to the Joint Secretary.
Even without going into the question whether an appeal would lie to the Joint Secretary against the communication dated 30-4-1996, we are of the opinion that this writ petition deserves to be dismissed on the ground of suppresio veri and suggestio falsi. It is a Co operative Society governed by the provisions of the Act and Rules framed thereunder which has come forward to file a petition under Article 226 of the Constitution of India without disclosing the relevant facts, as rightly pointed out by the learned Counsel for the 3rd Respondent. The Petitioner has suppressed the most crucial fact that on 31-1-1996 it has passed a Resolution permitting the 3rd Respondent to hold both the posts, namely, the post of Secretary of the Society as well as the post of Pradhan of Gram Panchayat Chaplah. A copy of the Resolution has been placed before us by the learned Counsel for the 3rd Respondent.
Learned Counsel for the 3rd Respondent has also been able to place before us a copy of the resolution pasted earlier permitting the third Respondent to contest the election for the post of the President of Gram Panchayat and that fact has also not been disclosed in the writ petition.
Thirdly, the Petitioner has not chosen to place before us a copy of the communication of the Assistant Registrar dated 30-4-1996 when it has chosen to raise a contention that the communication does not amount to an order and it amounts to only a show cause notice.
The above facts are sufficient to throw out this writ petition on the ground that the Petitioner has not come to Court with clean hands.
However, we are also inclined to accept the contention of the 3rd Respondent that the communication dated 30-4-1996 of Assistant Registrar, Co-operative Societies would amount to a direction to the Society to terminate the services of the 3rd Respondent and consequently an order within the meaning of Section 93(h) of the Act. Even otherwise, it would be a proceeding of the Assistant Registrar which was liable to be challenged u/s 94 by way of Revision before the Government. The Government on the information given by the 3rd Respondent by way of appeal can exercise its power of revision u/s 94.
Section 94 does not confine the power of Revision to suo inoto exercise by the Government and such power can be exercised even at the instance of any aggrieved party. If a party approach s the State Government making a grievance against the proceedings of the Registrar or any other person subordinate to it against which an appeal does not lie u/s 93 of the Act then it is open to the State Government to entertain the proceedings and call for the record from the subordinate authority. Rule 132-A deals with the power of the Co-operative Appellate Tribunal. There are three provisos to the said Rule. The third proviso reads that in case the impugned order or decision has been passed by an officer who is subordinate or junior to the Registrar of the Co-operative Societies but in exercise of the powers of the Registrar, then such appeal may be heard by the Deputy/Joint Secretary (Co-operation) to the State Government Thus, the Joint Secretary (Co-operation) to the State Government is empowered by the said Rule to exercise the powers of the Government which is conferred u/s 93 of the Act.
There can be no doubt whatever that the order passed by the Joint Secretary was well within his jurisdiction and the appeal before him was also maintainable.
In the result, the writ petition is dismissed with costs. The Petitioner shall pay costs of the third Respondent. Counsel fee Rs. 5,000.