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GHAZIABAD URBAN COOPERATIVE BANK LTD. GHAZIABAD AND ANR. versus SHRI LOKESH KUMAR SHARMA AND OTHERS

High Court of Judicature at Allahabad

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Ghaziabad Urban Cooperative Bank Ltd. Ghaziabad And Anr. v. Shri Lokesh Kumar Sharma And Others - SPECIAL APPEAL No. 435 of 2006 [2006] RD-AH 8863 (3 May 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.32

Special Appeal No.435 of 2006

Ghaziabad Urban Co-operative Bank Ltd. & another

vs.

Lokesh Kumar Sharma & others

Hon'ble S. Rafat Alam, J.

Hon'ble Ashok Bhushan, J.

Heard Shri K.N. Mishra, learned counsel for the appellants and Shri M.P. Gupta, learned counsel for the respondents.

This is an appeal filed against an interim order passed by the Hon'ble Single Judge of this Court dated 10.4.2006 by which the Hon'ble Single Judge has stayed the order dated 31.5.2005 retrenching the writ petitioner and the order dated 3.1.2006 passed by the Deputy Registrar, Co-operative Societies, U.P. Meerut Region, Meerut rejecting the representation of the writ petitioner under Section 128 of the U.P. Co-operative Societies Act, 1965 (hereinafter referred to as ''the Act').

Shri M.P. Gupta, learned counsel for the respondent, at the very out set, raised preliminary objection that this special appeal is not maintainable.  The submission of Shri M.P. Gupta is that the writ petition was filed against an appellate order and hence, the bar shall apply.

We have considered the preliminary objection.  The power of the Deputy Registrar under Section 128 of the Act is not the power akin to any appellate forum provided under the Act.  Section 128 is quoted below for ready reference: -

"128.  Registrar's power to annul resolution of a co-operative society or cancel order passed by an officer of a co-operative society in certain cases.--  The Registrar may -

(i) annul any resolution passed by the committee of management, or the general body of any co-operative society; or

(ii) cancel any order passed by an officer of a co-operative society;

if he is of the opinion that the resolution or the order, as the case may be, is not covered by the objects of the society, or is in contravention of the provisions of this Act, the rules or the bye-laws of the society, whereupon every such resolution or order shall become void and inoperative and be deleted from the records of the society."

A perusal of Section 128 of the Act reveals that the said provision empowers the Registrar to annul any resolution passed by the committee of management, or the general body of any co-operative society or cancel any order passed by an officer of a co-operative society, if he is of the opinion that the resolution or the order, as the case may be, is not covered by the objects of the society, or is in contravention of the provisions of this Act, the rules or the bye-laws of the society, whereupon every such resolution or order shall become void and inoperative and be deleted from the records of the society.  Section 128 of the Act is supervisory in nature, which is not akin to an appellate forum.  The scheme, under which Section 128 has been enacted, cannot be held to be an appellate forum, hence bar under Chapter VIII Rule 5 of the Rules of the Court shall not apply and, therefore, this special appeal is maintainable.

The submission of Shri K.N. Mishra, learned counsel for the appellant is that the Hon'ble Single Judge by the impugned order has granted relief, which is more in nature of final relief, and could have been given only at the time of final disposal of the writ petition. The writ petition was directed against the retrenchment order dated 31.5.2005 by which the Ghaziabad Urban Co-operative Bank Ltd. retrenched the writ petitioner along with other employees.  The writ petitioner had earlier come to this Court also but this Court did not entertain the writ petition and relegated the petitioner to seek his remedy under Section 128 of the Act.   The Deputy Registrar also by an order dated 3.1.2006 rejected the representation.  The retrenchment of the writ petitioner along with other employees was already given effect to and they have not been working for the last more than eleven months.  The Hon'ble Single Judge has not given any reason, which may indicate that the order of retrenchment was without jurisdiction or suffers from any patent error of law.  We are satisfied that the relief, which has been granted, as an interim measure by the Hon'ble Single Judge, could have been granted only at the time of final disposal of the writ petition.  We, therefore, modify the order dated 10.4.2006, to the extent, it stays the orders dated 31.5.2005 and 3.1.2006.  

Shri K.N. Mishra, learned counsel for the appellants undertakes to file counter affidavit in the writ petition within one week.  Shri M.P. Gupta, learned counsel for the respondent may file rejoinder affidavit within another one week.  The parties may appear before the Hon'ble Single Judge, who may dispose of the writ petition finally.

With the aforesaid order this special appeal stands finally disposed of.

3.5.2006

A.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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