Harsh Malhotra
Many thanks for your insight into the provision of 97th amendment on the captioned subject.
As a corollary to your response can the MC after co-option of MC members restructure / reshuffle the office bearers such as Secretary, Chairman etc more so if the Chairman is removed by following 73 1D process or ceases to be a MC member for not attending three consecutive MC meeting without specific leave of absence from MC. Further, can newly co-opted member be made Secretary or Chairman since other MC members are reluctant to take the position.
Our society’s election is due in July 2014 but given current state of affairs on SCEA it is more likely that election would be held towards the end of 2014.
I C Naik
1. Your question is about filling up a Casual vacancy of an “office bearer” of a cooperative society in Mumbai (presumably).
2. Section 166(4) of the M C S Act 1960 has given lease of life to all the board/committee of cooperative societies whose term expires after 1.04.2013 till elections are held by SCEA.
3. Proviso to Article 243ZJ allows a casual vacancy on the board/committee of a cooperative society by cooption by the board/committee and the Bye Laws makes an exception for just 2 members on the board/committee willing to continue to hold meeting with no quorum just to fill up vacancies.
4. Per Article 243ZH(e) QUOTE: “office bearer” means a President, Vice-President, Chairperson, Vice-Chairperson, Secretary or Treasurer of a co-operative society and includes any other person to be elected by the board of any co-operative society; UNQUOTE It’s an indirect mandate that “an office bearer” is an post to be filled in by board from its own body and not a post where to any person can be “nominated” “co-opted” or “appointed”.
5. Per Article 243ZK (2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a co-operative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law:
6. Constitutional Mandates are very broadly selected focusing on cooperative society as an autonomous democratic institution with final authority of members assembled in a duly convened meeting, through the board/ committee elected by them [Article 243ZJ, Article 243ZK and Article 243ZL], maintaining accounts and audit thereof within six months, [Article 243ZM] requiring State to list out agenda of annual general meeting to be held within 6 months [Article 243ZN] members’ participation norms Article 243ZO] filing returns, within six months on matters, specified therein like annual report of its activities,its audited statement of accounts, plan for surplus disposal as approved by the general body of the co-operative society, list of amendments to the bye-laws of the co-operative society, if any, declaration regarding date of holding of its general body meeting, conduct of elections when due [Article 243ZP] offences by officers like willfully making a false return or furnishes false information, or any person willfully failing to not furnish required information, disobeying any summons, requisition or lawful written order, wilfully failing to hand over custody of books, accounts, documents, records, cash, security as required of him [Article 243ZQ]
7. It is surprising that office bearers are not targeted for the offences specified in Article 243ZQ. Overall focus on office bearers is on a low key as compared to the members and cooperative society. It does not even specify that the office bearers shall be responsible to the board/committee.
8. It is not a surprise that election of office bearers has not been assigned any importance in Part “Part IXB: The Cooperative Societies” except providing a clue in definition of office bearers Article 243ZH(e). Elected board/committee has the autonomy to elect them from the board/committee from time to time as may be necessary. In any case the members of the board/committee are all jointly responsible to the society without any differentiation between the office bearers and members [Section 73(1AB) of the M C S Act 1960 for example]
9. As the Constitutional Mandate are to be executed through the State Cooperative Society Law and cooperative society a juristic person a creation under Cooperative Society Law is governed by the provisions of the M C S Act 1960 in case of cooperative society in Maharashtra for example.
10. In the M C S Act 1960 Chapter VII – MANAGEMENT OF SOCIETIES (ss72-80) has undergone many changes when the Amending Act tried to align it with “Part IXB: The Cooperative Societies” of the Constitution of India.
11. If a vacancy on a committee arises during the first half of its tenure, such vacancy shall be filled in by election as per procedure laid down under Cooperative Society Law in terms of the proviso to Article 243ZK(2) reproduced above for which the Maharashtra Co-operative Societies Election to Committee Rules, 2013 (Consolidated Election Rules) are issued on 20th August 2013.
12. Clause (9) of Rule 3 defines “Election” means an election to elect a committee or committee members of a Co-operative Society.
13. If one reads between the lines, the Rules are called Election to Committee Rules also backing that up by defining election somewhat narrowly and keeping election of office bearers outside its purview.
14. Rule 77 of Consolidated Election Rules reads QUOTE: As soon as the members of the committee are elected, the election of office bearers of any such society shall be held within the period of fifteen days from the declaration of the result as provided in it’s by-laws. The meeting of the committee for this purpose shall be presided over by officer authorized by the SCEA.
15. Filling up a Casual vacancy of an “office bearer” of a cooperative society is not addressed in “Part IXB: The Cooperative Societies” or the M C S Act 1960 and hence the answer has to be found in the Bye Laws.
16. Although 2013 Model of the Bye Laws aligned to 97CAA is still a draft, it being on the Website of the Commissioner and Registrar of Cooperative Societies we can use to find answer to our question.
17. Bye Law No 133: QUOTE:
(a) The Chairman of the society may resign his office as Chairman by a letter addressed to the Secretary of the society;
(b) The Secretary or Treasurer of the society may resign his office as Secretary or Treasurer by a letter addressed to the Chairman of the society;
(c) Chairman/Secretary/Treasurer’s resignation will be effective only after its acceptance and handing over the charge to the newly elected Chairman / Secretary / Treasurer, as the case may be. UNQUOTE
18. So the answer is yes office bearers are to be elected by board during entire tenure of the board/committee by election in the meeting of the board/committee.