Sanjeev Vasudevan
I am Secretary of our CHS in Dombivali. Recently, while conducting MC meeting, all the members including our Chairman & Treasurer questioned me for my strictly adhering to the bye-laws of the Society. They told me no need to follow bye-laws. This astonished me and since it is discussing at our MCM, I jokingly noted down it in my writing pad but immediately one of the MC members in a fit of anger tore the paper from my writing pad. This incident in front of all got hurt me and insulted me a lot.
Kindly let me know what action I can take against this member? Is it possible for Chairman or Registrar to disqualify him from the MC?
Kindly let me know your valuable reply ASAP.
I C Naik
Attached Reply to Sanjeeve Vasudev has become intolerably lengthy but it is to appreciate his courage as an example for other members of www.indiancooperative.com that I have put in extremely exceptional long time to write it. PLEASE DO GIVE A HIGH PRORITY if possible.
Sanjeev Vasudevan reminded identical experience as I had as the first Secretary (later Chairman) of my CHS two decades ago. I had resigned but I would not give that advice to him. Surely the Cooperative societies are different post 97th Constitutional Amendment. Now the recommendations to Sanjeev.
This is far more than a legal issue, a crucial matter of responsible public behavior. Matter of mutual respect with in the Committee where every member spends private family time for doing good to the rest of the members of the Society and their families. In that the Hon Secretary assumes a special position with host of onerous responsibilities (at least 23 per Bye-Law No 141) with a Pivotal position as the face of the Society. He must carry a high level of respect among all residents and must himself be enjoying a very high self esteem. Hon. Secretary urging compliance of Bye-Laws is a demonstration of very high level of virtue. The Bye-Laws are read by the Secretary the most as these are contracts inter-se the members and he knows that their compliance means respect for the members who are parties to the Contracts. [the Supreme Court of India in Zoroastrian Co-Operative Housing Society Limited And Another V. District Registrar Co-Operative Societies (Urban) & Ors [2005]Rd-Sc 253 (15 April 2005)] These are not the laws made by the Governments so that you flout them with immunity in utter disrespect to the unidentified members of population who are law abiding. Here in CHS you know the population fully well and you are deceiving known people in case you flout the bye laws. In fact in that the Committee Members cheat their own-selves, though sub-consciously as they are the contracting parties themselves.
So what should be done?
Can we take recourse to the Bye Laws which most MC Members take lightly and want their sincere Secretary to follow the suit?
At an opportune time the very first Bye-Law you can bring to the attention of all the Managing Committee Members is this:
Bye-Law No 138 “The members of the Committee shall be jointly and severally liable for making good any loss, which the society may suffer on account of their negligence or omission to perform any of the duties and functions cast on them under ,the MCS Act 1961 and MCS Rules 1961and the bye-laws of the society. “
Compliance of this Bye-Law No is not left to the managing committee but to the Registrar under Section 73(1AB) so they better read that section also.
“(1AB) The members of the committee shall be jointly and severally responsible for all the decisions taken by the committee during its term relating to the business of the society. The members of the committee shall be jointly and severally responsible for all the acts and omissions detrimental to the interest of the society.
Provided that, before fixing any responsibility mentioned above, the Registrar shall inspect the records of the society and decide as to whether the losses incurred by the society are on account of acts or omissions on the part of the members of the committee or on account of any natural calamities, accident or any circumstances beyond the control of such members: “
Provided further that, any member of the committee, who does not agree with any of the resolution or decision of the committee, may express his dissenting opinion which shall be recorded in the proceedings of the meeting and such member shall not be held responsible for the decision embodied in the said resolution or such acts or omissions committed by the committee of that society as per the said resolution
Following Bye Law is also relevant to the matter.
No 137. The Secretary of the society shall attend every meeting of the Committee and record its minutes and place the same for confirmation before the next meeting of the Committee, after the minutes are signed by the Secretary of the Society and the Chairman of the meeting”
So you can now appreciate that what you were doing was not a joke although. Sub-consciously you were doing exactly what the law hinted in above proviso, because you are a sincere law abiding secretary your society members have sent to the Committee, and you could not cheat them.
So you should propose a resolution in the MCM against the member who tore the draft minutes as he was obstructing an Office Bearer performing an important duty under the registered bye-laws of the society. You can propose a mild resolution of just a rebuke/warning and ask for written apology to keep on record of the Meeting so that such incidents are not repeated by any member.
In fact this incident though hurt your feelings and disturbed your mind, it has given you an opportunity to emphasize on compliance with renewed vigour.
If the exasperated member does not relent and come to terms with the MC you are entitled to go to members in General with a fact sheet and invite requisition of members for a general meeting to pass a resolution to recall the member from the managing committee.
There will be a definite resistance to this bold move from some corners for sure, since neither the Act/Rules nor the Bye Laws provide for a motion in general body meeting to recall member of the Committee. But after the Constitution (97th Amendment) Act 2011 coming in to force on 13 2 2013 things have started changing in cooperative sector.
“The amendment providing constitutional status to the societies has brought out radical changes in the concept of cooperative societies. Democratic functioning and autonomy have now become the core constitutional values of a cooperative society.” So declared by the Hon. Supreme Court of India in its order dated 19-03-2015 [(2015) 42 SCD 494].
The Apex Court in that order has also held:” Unless there is cooperativeness among the elected cooperators who constitute the Governing Body for achieving the object for which the society is constituted and for which those representatives are elected by the members entrusting them with the management of affairs of the society, there will be total chaos. Cooperation among the cooperators is the essence of democratic functioning of a cooperative society. If there is no democracy in a cooperative society, it ceases to be a cooperative society as conceived by the Constitution of India under the Ninety Seventh Amendment.”
And finally a law has been laid down by the Hon. S C under this order that “If a procedure is prescribed in any Act or Rule or Bye-law regarding election of an office bearer by the Board, as defined under Article 243ZH(b) of the Constitution of India, and for removal thereof, by way of a motion of no confidence, the same procedure has to be followed. In case there is no express provision under the Act or Rules or Bye-laws for removal of an office bearer, such office bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to office.
Election of office bearers or of members of the MC both involve an identical democratic process with only difference in case of primary election of the managing committee the number of electorates is more and in case of office bearer such elec ed members form the electorate. When the Hon S C laid a law as aforesaid that such office bearer or (also read a member) is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to office of (member of the managing committee).
So recall of this Committee member by those who elected him falls within the ambit of this new Law laid down by the Apex Court of the Country post 97th Constitutional Amendment as above and more particularly the last statement in above para. .
Your Committee members may be encouraged to have a look at this historical maiden order on 97th Constitutional Amendment by the Supreme Court of India using the following URL
http://www.scdecision.in/volume/42/494
?If the image of Hon. Secretary is tarnished by the fellow MC member in presence of the other members and they are a silent observers of this distasteful conduct, for a sincere person and well meaning office bearer it becomes a moral duty to approach the Supreme Authority to restore the reputation of the office of Hon. Secretary. Even in this you have a support of the Bye Laws themselves; Bye-Law No 111. “Subject to the provisions of the MCS Act, the MCS Rules and the Bye-laws-laws of the Society, the final authority of the society shall vest in its general body meeting, summoned in such manner as is specified in these bye-laws.”
Recall of a member a historical move alone will vindicate the Secretary’s stand that every CHS must ensure full compliance of its registered Bye-Laws and demonstrate mutual respect for the members. ??
