Borhanuzzaman and others Vs. Ataur Rahman Chowdhury and others, 46 DLR (AD) (1994) 94

Case No: Civil Petition for leave to Appeal No. 12 of 1994

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mainul Hosein,,

Citation: 46 DLR (AD) (1994) 94

Case Year: 1994

Appellant: Borhanuzzaman and others

Respondent: Ataur Rahman Chowdhury and others

Delivery Date: 1994-1-16

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Shahabuddin Ahmed CJ
MH Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J.
 
Borhanuzzaman and others
…………….................Petitioners
Vs.
Ataur Rahman Chowdhury and others
…….............................Respondents
 
Judgment
January 16th, 1994
 
Co-operative Societies Ordinance, 1984
Section 22
When report of enquiry forms the basis of allegations against the Managing Committee a copy of the Report is an indispensable tool in its hands in giving reply to the show cause notice. …. (8)
 
Lawyers Involved:
Khandker Mahbubuddin Ahmed, Senior Advocate, instructed by Shamsul Haque Siddique, Advocate-on-Record-For the Petitioners.
Mainul Hosein, Advocate (Joynal Abedin, Advocate with him) instructed by Md. Aftab Hossain, Advocate-on-Record-For the Respon­dents.
 
Civil Petition for leave to Appeal No. 12 of 1994
(From the Judgment and Order dated 6.12.93 passed by the High Court Division in Writ Petition No. 1351 of 1993).
 
JUDGMENT
 
Mustafa Kamal J.
 
Respondent No. 9 Aminbagh Co-operative Market Society Ltd., a registered Co‑operative Society and respondent Nos. 1-8, Chairman and Directors of its Managing Committee, elected for 3 years from 28.10.91 to 28.10.94, obtained as petitioners a Rule Nisi in Writ Petition No. 1351 of 1993, challenging the order dated 2.8.93 passed by respondent No. 12, District Co-operative Officer, dissolving the managing committee on certain allegations under section 22 of the Co-operative Societies Ordinance, 1984, shortly the Ordinance, and appointing a new Managing Committee upto 31.1.94 with the purpose of conducting a fresh election to the Managing Committee. The five petitioners before us are the Chairman and Members of the Ad-hoc Managing Committee who added themselves as respondents in the said writ petition in which the Rule Nisi was made absolute by the judgment and order of the High Court Division dated 6.12.93 from which the petitioners have preferred this petition for leave to appeal.
 
2. The first ground on which the Rule Nisi was made absolute was that the enquiry against the respondents' Managing Committee under section 84 (1) of the Ordinance in pursuance of which the Managing Committee was given a show cause notice having been conducted by an incompetent official the impugned order could not be sustained.
 
3. Section 7 of the Ordinance empowers the Government, by general or special order, to confer all or any of the powers or impose all or any of the duties entrusted to the Registrar of Co‑operative Societies by or under the Ordinance other than those specified in the First Schedule upon, inter alia, any person appointed under section 6 to assist the Registrar. In exercise of the said power the Government by Notification dated 25.5.86 conferred upon the District Co‑operative Officer (Assistant Registrar) all the powers of the Registrar under the Ordinance except those specified in the First Schedule. The District Co-operative Officer, in exercise of that power, authorised Mrs. Gulshan Ara, another Assistant Registrar, to conduct an enquiry into the affairs of the concerned Co-operative Society under section 84(1) of the Ordinance. The High Court Division accepted the submission of the petitioner-respondents that a delegate cannot further delegate and the enquiry was respondent's readiness to provide copy the held by a person not authorised by law to hold the same. The basis of the allegations upon which the Managing Committee was dissolved is thus knocked out.
 
4. Mr. Khandker Mahbubuddin Ahmed, learned Counsel for the petitioners, submits that section 7 of the Ordinance does not deal with delegation of power but with conferment of the powers and imposition of duties entrusted to the Registrar by or under the Ordinance. Under section 84(1) of the Ordinance the Registrar may hold an enquiry into the affairs of a Co-operative Society either by himself or by a person authorised by him by order in writing. The entire bundle of powers mentioned in section 84(1) entrusted to the Registrar is now exerciseable by the District Co-operative Officer who by authorising another Assistant Registrar to hold the enquiry has not over-stepped his boundaries and was within his powers to do so.
 
5. From a reading of sections 7 and 84(1) and the Notification dated 25.5.86 it appears that Mr. Khandker Mahbubuddin Ahmed's submission has got substance. The High Court Division was not well‑founded in law in making the Rule absolute on this ground.
 
6. The second ground on which the Rule Nisi was made absolute is that in serving the Managing Committee with a notice to show cause why action shall not be taken against it under section 22 of the Ordinance, the enquiry report which was made the basis of the allegations contained in the show cause notice was not made available to the petitioner ­respondents and thereby they were deprived of the opportunity of giving their explanation in respect of the allegations made against them.
 
7. The show cause notice itself contained elaborate charges against the Managing Committee based on the enquiry report and the petitioner ­respondents did not reply to the show cause on the ground that in spite of their application on Court fee they were not supplied with a copy of the enquiry report without which they could not prepare an adequate reply. It was the defence of the Registrar‑ respondent that copy of the enquiry report cannot be made available without payment of required Court fees and in spite of the said respondent’s readiness to provide copy the petitioner‑respondents did not pay the requisite fee.
 
8. We have perused Rules 182 and 183 of the Co-operative Societies Rules, 1987 and we do not find that to obtain a copy of an enquiry report under section 84, in the facts and circumstances of the case, Court fees have to be paid. The petitioner­ respondents may or may not be entitled as of right to a copy of the report under section 84(3) of the Ordinance, but when the Managing Committee of a Co-operative Society is proceeded against under section 22 of the Ordinance, the second proviso to section 22(1) categorically provides that "no such order of dissolution shall be passed without giving the Managing Committee an opportunity of being heard". When the report of the enquiry forms the basis of the allegations against the Managing Committee a copy of the report is an indispensable tool in its hands in giving a suitable reply to the show cause notice, because a report may contain both favourable and adverse matters against the Managing Committee which has every right and justification in relying upon the favourable contents in the report in its reply.
 
9. Apart from the purely technical ground that the petitioner-respondents were not entitled to a copy of the enquiry report without payment of requisite Court fees, Mr. Ahmed was not able to counter the argument of Mr. Mainul Hosein, learned Counsel who entered Caveat on behalf of the petitioner-respondents, that the failure to supply the copy of the enquiry report is a violation of the principles of natural justice in the facts and circumstances of the case. We, therefore, find no ground for interference.
 
The petition is dismissed.
 
Ed.