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Writ Petition No. 1901 of 1981, decided on 27th January, 1982.
‑‑ S. 43(3)‑Inquiry result, communication of‑Registered envelope delivered back to Assistant Registrar with endorsement, "no one accepted to be President and hence could not be served"‑Such envelope never offered to President of Society at relevant time‑No serious effort made to serve Society or its office‑bearers‑Essential requirement of S. 43(3) not fulfilled‑Order winding up of Society under S. 47, held, without lawful authority in circumstances of case.
Ch. Hafeez Ahmad for Petitioner.
Date of hearing : 27th January, 1982,
The petitioner's a Co‑operative Society which was wound up under section 47 of the Co‑operative Societies Act, 1925, by the Assistant Registrar, acting as Registrar, by his order dated 6‑5‑1978. This order was challenged by the petitioner through a revision before the Secretary of the Department, which was dismissed on 11‑2‑1981. The petitioner has now come to this Court under Article 9 of the Provisional Constitution Order, 1981.
2. The validity of these orders has been called in question, primarily on the grounds that neither the petitioner was associated with any inquiry under section 43, nor any notice in this behalf was served on any of its office‑bearers nor the result of the inquiry was communicated to it in contemplation of section 43(4) of the Act. Before going ahead, it may be observed that in the impugned order dated 11‑2‑1981, it was maintained that a show‑cause notice dated 16‑4‑1978 was issued to the petitioner, which was duly served. As the petitioner disputed the correctness of this finding, the record was, requisitioned to evaluate this submission.
3. The record produced by the Department has been perused with the assistance of the learned counsel for the petitioner and the Assistant Registrar. It discloses that a notice by registered post was issued to the President of the Society, which could not be served and the envelope was delivered back to the Assistant Registrar, with the endorsement of the Postal Department that no one accepted to be the President, and that, therefore, it could not be served. There is no other notice in the file.
4. It is argued on behalf of the petitioner that previously one Muhammad Abdullah was the President of the Society but on the basis of a resolution, on 5‑7‑64, he was replaced by Qazi Abdul Majid. The contention is, that the notice was never presented to him for service; there was no denial on his part to receive the registered envelope and consequently, the postman's endorsement, cannot be treated as refusal, amounting to service.
5. I find much force in these submissions. The contention that at they relevant time Qazi Alidul Majid was the President of the Society, has not been controverted. It is evident from the endorsement made on the envelope that the postman never offered it to the said President for delivery or even contacted him in this behalf. Needless to mention that the winding up of a Society is a very drastic measure and the Society against whom such an action is commenced has a right to be associated with the inquiry and other connected proceedings: But it is discernible from the record that no serious effort was made to serve the Society or its office‑bearers. It is an essential requirement of subsection (4) of 'section 43 that the result of the inquiry must be communicated to the Society. The record is not suggestive of any such communication to the petitioner, when countenanced with this situation the Assistant Registrar did not have much to plead that the service was affected, in accordance with law. As the petitioner was not associated with the winding‑up proceedings or heard, the impugned orders are liable to be struck down.
6. For the foregoing reasons this writ petition is accepted and the impugned orders are declared to have been passed without lawful authority. It would, however, be open to the Departmental authorities to pass a fresh order in the matter, in accordance with law. The petitioner shall appear before the Assistant Registrar on 16‑2‑1982, As this date has been fixed in the presence of the petitioner's learned counsel, and rather with his consent, notice of this date need not be issued to the Society by the Department.
The parties are left to bear their own costs.
K. M. A. Petition accepted.
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