High Court Kerala High Court

A.R.Radhamaniamma vs The Joint Registrar Of … on 27 July, 2009

Kerala High Court
A.R.Radhamaniamma vs The Joint Registrar Of … on 27 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 18634 of 2009(Y)


1. A.R.RADHAMANIAMMA,PARAYIRIKUNNATHIL
                      ...  Petitioner

                        Vs



1. THE JOINT REGISTRAR OF CO-OPERATIVE
                       ...       Respondent

2. THE ASSISTANT REGISTRAR OF CO-OPERATIVE

                For Petitioner  :SRI.P.P.JACOB

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :27/07/2009

 O R D E R
                       ANTONY DOMINIC, J.
                     ================
                 W.P.(C) NO. 18634 OF 2009 (Y)
                 =====================

              Dated this the 27th day of July, 2009

                          J U D G M E N T

Petitioner was the Secretary of Kulanada Service Co-

operative Bank Limited. On the allegation that she had

committed certain misconducts, disciplinary proceedings were

initiated and ultimately, she was terminated from service.

2. There were complaints from the members of the

managing committee of the Bank and acting upon the report of

the Assistant Registrar (General), Kozhencherry, vide order dated

3/9/04, an enquiry under Section 65 of the Kerala Co-operative

Societies Act was ordered and the Kulanada Unit Inspector was

authorised to conduct the enquiry. Accordingly enquiry was

conducted and Ext.P1 report was submitted. In the said report,

Rs.5,15,890.26 was recommended to be recovered from the

petitioner.

3. On the strength of Ext.P1 report, notice was issued to

the petitioner calling upon her to remit the amount. On receipt of

the said notice, petitioner submitted Ext.P2 reply disputing her

liability to remit the amount. While matters stood thus, Ext.P3

WPC 18634/09
:2 :

notice dated 11/5/2009 was issued calling upon the petitioner to

file objections against initiating proceedings under Section 68 of

the Act pursuant to an order dated 13/4/2007 passed by the Joint

Registrar. On receipt of the said notice, petitioner submitted

Ext.P4 request for furnishing her details of the order dated

13.4.2007 passed by the Joint Registrar and accordingly Ext.P6

order was furnished to her. Thereafter, petitioner submitted

Ext.P5 reply. It was at that stage this writ petition was filed

praying to quash Exts.P3 and P6 and to direct the 1st respondent

to comply with Rule 66(5) of the Kerala Co-operative Societies

Rules.

4. The contention raised by the petitioner is mainly that

except after complying with Rule 66(5), the 1st respondent is

incompetent to initiate any action based on Ext.P1 report

submitted under Section 65 of the Act. Therefore, it is contended

that Exts.P3 and P6 are premature and illegal.

5. A counter affidavit has been filed by the 2nd

respondent, where it is stated that the enquiry under Section 65

resulting in Ext.P1 report was submitted with notice to the

affected parties including the petitioner. It is also stated that the

WPC 18634/09
:3 :

members of the managing committee had challenged Ext.P1

report before the Arbitration Court by filing ARC 28/07 and had

obtained an order of stay against initiating proceedings on the

basis of the report. It is stated that the said ARC was finally

dismissed by order dated 5/9/2008 and that it was thereafter that

Ext.P3 notice was issued.

6. Answering the contention of the petitioner that the

period prescribed for enquiry under Section 68 has also expired

and therefore, Ext.P3 notice was without jurisdiction, it is stated in

the counter that the said period has been extended till 31/7/2009.

It is also contended that for initiating proceedings under Section

68 of the Act, notice and hearing as contemplated under Rule 66

(5) of the Rules is unnecessary.

7. From the above pleadings and the submissions made

by the counsel on either side, the only question that arises for

consideration is whether the Registrar is required to comply with

Rule 66(5) of the Kerala Co-operative Societies Rules before

initiating any action under Section 68 on the basis of the report

submitted under Section 65 of the Act. Rule 66 of the Rules

provides the procedure for the conduct of inquiry and inspection

WPC 18634/09
:4 :

under Section 65 and 66 of the Act. Sub Rule 5 inter alia provides

that on submission of the report by the enquiry officer, the

Registrar shall pass such orders thereon as may be considered

just after giving a reasonable opportunity of being heard to the

society, person or persons concerned.

8. From the facts, it can be seen that as per Ext.P6 order

dated 13/4/2007, proceedings under Section 68 were ordered to

be initiated and it was on the basis of the said order that Ext.P3

notice for fixing the liability under Section 68 was issued.

9. Under Section 65, on the orders of the Registrar, an

enquiry officer is appointed to conduct the enquiry. The enquiry

officer thereupon conducts the enquiry with notice to the parties

and makes his report. Once the report is submitted to the

Registrar, it is for the Registrar to independently consider the

report and pass orders thereon. Rule 66(5) provides that before

the Registrar passes any such order, the Society, the person or

persons concerned who are likely to be affected by the report are

entitled to be issued notice and heard. Such persons and

Societies are entitled to canvass before the Registrar the

correctness or otherwise of the findings of the enquiry officer. It

WPC 18634/09
:5 :

is such opportunity which is provided under Rule 66(5) and

necessarily the said rule is mandatory in character and has to be

complied with before proceeding further. This is all the more so

since proceedings under Section 68 are penal in nature.

10. True, the learned Government Pleader referred me to

the judgment of this Court in State of Kerala v. Sudarsanan

(1997(2) KLT 522), which reversed the judgment of the learned

Single Judge in Sudarsanan v. State (1997(1) KLT 957). That

was a case where proceedings were initiated under Section 32 of

the Act. Facts of that case are different from the facts arising in

this case. Therefore, in the absence of the Registrar having

complied with the procedure laid down under Rule 66(5), both

Exts.P3 and P6 are premature and illegal. For that reason,

Exts.P3 and P6 will stand set aside.

The writ petition is therefore disposed of setting aside

Exts.P3 and P6, but however clarifying that it will be open to the

1st respondent to comply with Rule 66(5) of the Co-operative

Societies Rules and thereafter initiate fresh proceedings in the

matter.

ANTONY DOMINIC, JUDGE
Rp