- (1.) In this writ petition filed by Rajinder Singh, Director, The Jalandhar Central Co-operative Bank, Ltd., Jalandhar under Articles 226 and 227 of the Constitution, at the admission stage the Motion Bench was pleased to pass the following order on 14th June, 1989 :- "Notice. Be set down for hearing in September, 1989. Learned counsel for respondent No. 6 submits that his client is functioning as a Director. This is controverted by the learned counsel for the petitioner. He is directed to file the replication. Stay matter be listed for hearing on August 4, 1989. Election of the Vice-President, if any, will be subject to the result of the writ petition. Sd/- G.R. Majithia, Judge. Sd/- Amarjeet Chaudhary, Judge." 14.6.1989. Thereafter, when the matter came up before the learned Single Judge, the order RAJINDER SINGH v. STATE OF PUNJAB, 1989 PunLJ 756 1 was passed :- "Counsel for the the petitioner contends that the petitioner secured 142 votes while respondent No. 6 secured 52 votes. However, the election of the petitioner was challenged by respondent No. 6inter alia on the ground that nomination papers of Rajinder Singh were improperly accepted as the society of whom he was a representative. was a defaulter as envisaged by law. The Additional Registrar as well as the Registrar before whom the petition and appeal were filed found that there was no default, and dismissed the petition and the appeal. However, the learned Commissioner found that the society was a defaulter up to 31.5.1988. Resultantly, he set aside the election and declared respondent No. 6 as duly elected. The order has been challenged inter alia contending that there was no default as well as that the petition by respondent No. 6 was not competent Reliance has been placed on Tejinder Paul Mann v. The State of Haryana and others, 1978 PunLJ 120 Learned counsel for the respondent refutes the submissions made and contends that-(i) there is no application for stay, (ii) admittedly, on the date the nomination papers were filed he had raised an objection that the society was a defaulter. Consequently, the papers could not have been accepted though a receipt with respect to deposit of Rs. 500/- was produced and it was stated by the petitioner that the society was no more a defaulter as no certificate to the effect that the society was not the defaulter was produced. The Commissioner while exercising the revisional jurisdiction found by addressing correspondence to the society that the society was in default to the extent of Rs. 43/ upto 31.5.1988. At this stage the counsel contends that the Commissioner relied upon the documents produced by Rajinder Singh petitioner. In my considered view, the contention raised by the counsel for the respondent, prima facie cannot be accepted. The Commissioner exercising revisional jurisdiction had no jurisdiction to receive the evidence in particular without any opportunity being given to the parties. Though at this stage, counsel for the respondent states that the Commissioner has not received any additional evidence, the matter will be finally determined at the time of disposal of the writ petition on merits. Prima facie, I am of the view that the respondent having secured just one-third votes as compared to the votes secured by the petitioner has no justification to represent the majority. In a democratic set up, it is the majority who has the right to manage the affairs. Otherwise also, a person representing the minority has no right to manage the institution to the detriment of the majority. Keeping the balance of convenience in view and the fact that the election was held as far back As 9-6-1988 and the petitioner had been working since then, there is no reason to stop him from working during the pendency of the writ petition. Consequently, the operation of the impugned order is stayed till the disposal of the writ petition. Since order is already there that the writ petition be fixed for hearing in September, 1989, no useful purpose will be served in permitting the respondent to work for two months when the petitioner has already worked for more than a year. Sd/- M.S. Liberhan Judge." 8-8-1989. This order of the learned Single Judge [reported as RAJINDER SINGH v. STATE OF PUNJAB, 1989 PunLJ 756) was challenged in LPA No. 1606 of 1989 and was upheld by the Division Bench by the following order dated 28th Sept. 1989 :- "Since the appeal itself is against the interim stay orders pending the writ petition we have taken up the LPA itself for final disposal. We find that it is just and necessary that the order in revision which was challenged in the writ petition should be stayed and pending the writ petition, the writ-petitioner shall be permitted to function as a Director or whatever capacity in which he was elected. Accordingly, this appeal is dismissed. However, having regard to the fact that it relates to function of an elected body it is necessary that the writ petition itself should be disposed of at an early date. We accordingly post C. W. P. No. 5702 of 1989 on 16-10-1989 at the top-of the list, subject to part-heard, if any, as per roster. Sd/- V. Ramaswami, Chief Justice. Sd/- G. R. Majithia, Judge." 28-9-1989 It is under these circumstances, that the petitioner has been functioning as Director during the pendency of the writ petition.
(2.) In nutshell, the grievance of the petitioner is that even though he had been elected by securing 142 votes as against 52 votes secured by respondent No. 6 Shri Narain Dass, yet his election has been set aside on the ground that his nomination papers had been improperly accepted becaue the Society represented by him was a defaulter. This order of the learned Commissioner (Appeals), Jalandhar Division, with, headquarters at Chandigarh, reversing the original order of the Additional Registrar (Industrial) Co-operative Societies, Punjab, Chandigarh, dated 9 June, 1988 as also the appellate order of the Registrar, Co-operative Societies, Punjab, passed on 16th November, 1988, is untenable in law. The broad attack against the reversal order is that the finding of fact recorded by the original tribunal and upheld in appeal, could not be reversed by the learned Commissioner (Appeals), as he had neither the jurisdiction to reverse the same in revision nor was there enough material with him to arrive at a contrary finding. According to the petitioner, once a firm finding had been arrived at by the learned Registrar, Co-operative Societies, Punjab, that the Society represented by Rajinder Singh petitioner was not a defaulter, it was for Narain Dass, respondent No. 6 (election petitioner) to substantiate his plea beyond reasonable doubt, and it was his duty to discharge the heavy burden.
(3.) The learned counsel for the respondents, defending the order of the learned Commissioner (Appeals), pleaded that the documentary evidence produced before the Commissioner (Appeals), tilted the balance in his favour. Further, he relied on the conclusion arrived at by the learned Commissioner, "that it was sufficient for the petitioner to point out that the Society which respondent No. 4 (Rajinder Singh, the present petitioner) represented was a defaulter and it was not the duty or responsibility of the petitioner (Narain Dass, respondent No. 6 in the writ petition) to indicate the amount of default, etc.";