High Court Kerala High Court

G. Jesudasan vs Joint Registrar Of Co-Operative on 26 May, 2009

Kerala High Court
G. Jesudasan vs Joint Registrar Of Co-Operative on 26 May, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RP.No. 417 of 2009(D)


1. G. JESUDASAN, PRESIDENT, BOARD OF
                      ...  Petitioner

                        Vs



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

2. THE SASTHAMCOTTA CO-OPERATIVE

3. THE PART TIME ADMINISTRATOR, THE

4. N. SREEDHARAN, MEMBER NO. A.0018642,

                For Petitioner  :SRI.GEORGE POONTHOTTAM

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN

 Dated :26/05/2009

 O R D E R
         THOTTATHIL B. RADHAKRISHNAN, J.

  = = = = = = = = = = = = = = = = = = = = = = = =

       R.P.417/2009 in W.P.(C).31536/2008-D

  = = = = = = = = = = = = = = = = = = = = = = = =

        Dated this the 26th day of May, 2009.

                     O R D E R

“CR”

1.Review petitioner filed WP(C).31536/2008

challenging an order of supersession under

Section 32 of the Kerala Co-operative Societies

Act, 1969, hereinafter, the “Act”, for short.

That writ petition was allowed by judgment dated

12.3.2009, 2009(2) ILR Kerala 323, on the sole

ground that the decision impugned therein was

rendered by an officer other than the one who

heard the committee which was superseded thereby.

It was clarified even in that judgment that no

other grounds are dealt with and that this Court

has not gone into the merits or demerits of the

allegations or the objections stated by the

committee to the allegations made against it.

RP417/09 -: 2 :-

2.This review petition is filed by the writ

petitioner on two grounds.

3.Firstly, it is contended that though this Court

noticed the writ petitioner’s contention that the

first respondent was duty bound to proceed under

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

Rules, 1969 rather than take action under Section

32 even in the light of Section 65(6) of the Act,

that plea has not been considered.

4.The aforesaid plea is one that could be raised in

opposition to a notice under Section 32. Having

left open all issues relatable to the merits of

the matter, there was no need for this Court to

consider the issue relatable to that plea of the

petitioner. Such plea in defence to the

supersession proceedings also stands left open by

the judgment sought to be reviewed. There is,

therefore, no error apparent on the face of the

record, in that regard.

RP417/09 -: 3 :-

5.The second ground raised seeking review is

that, it having been held that proceedings under

Section 32 is quasi judicial and the person who

heard the parties ought to pass the order, it

ought to have been further held that the

proceedings are vitiated from its very inception;

that is, from the very drawing up and issuance of

the pre-decisional notice. It is argued on behalf

of the petitioner that the Registrar is “a

person” in terms of Section 3(1) of the Act. The

plea is that the word “person” means a particular

individual and cannot, therefore, take the

concept of an institution and the formulation

of opinion to act under Section 32 ought to be by

one person and the same individual has to

decide on the objections raised.

6.Sub-section 2 of Section 3 provides that the

Government may by general or special order confer

on any person all or any of the powers of the

Registrar under the Act. Therefore, once the

power of the Registrar is conferred by general or

RP417/09 -: 4 :-

special order, all such persons on whom such

power is conferred, exercise the powers of the

Registrar, which includes the power to initiate

action in terms of Section 32 of the Act. The

question, therefore, would be only as to whether

the formulation of an opinion for the purpose of

issuing a pre-decisional notice on specified

grounds relatable to Section 32(1) could be done

by one person and the rendition of the decision

following such consideration could be done by yet

another. Pertinently, it needs to be noted that

the judgment sought to be reviewed is rendered on

the fundamental principle that in instances of

hearings which involve live questions of sifting,

weighing and appreciation of evidence tendered,

the lis has to be decided by the person who heard

the arguments. This is all the more so because,

such a decision-making process, as noticed in

paragraph 18 of the judgment sought to be

reviewed following Marico Industries Ltd., 2003

(1) KLT 956, is not a decision exclusively of the

head or heart and it has to be one of both. The

RP417/09 -: 5 :-

process of arriving at the satisfaction that the

committee has conducted itself in any among the

manners enumerated in clauses (a) to (d) of sub-

section 1 of Section 32 need not necessarily lead

to the conclusion that it, without fail, has to

be superseded. This is why, while the Registrar

is conferred with the authority to supersede

without pre-decisional hearing, the committee

could be given the opportunity to state

objections against the proposed supersession. In

cases where the Registrar proceeds to give an

opportunity of pre-decisional hearing to the

committee to state its objections, he cannot then

start the hearing with any pre-conceived notion

as to the guilt of the committee as regards the

allegations made against it. It is an essential

feature of fair play, inbuilt among the

fundamentals of natural justice, that bias in any

form, including subject matter bias or any pre-

conceived determination or opinion, ought not to

weigh with the authority who hears. If it does,

that will result in forking the process of

RP417/09 -: 6 :-

assimilation of the defence tendered. This would,

undoubtedly, taint the judicious mind of the

adjudicator. In matters relating to Section 32,

when a committee states its objections and is

given an opportunity of hearing, law would not

presume that the Registrar hears the objections

after having concluded for himself, to supersede.

This, therefore, shows that in cases where a

notice is given affording opportunity to state

objections, the formulation of the “satisfaction”

by the Registrar comes to a standstill and the

application of mind by the person who hears the

committee on its objections, namely, the

Registrar, would start, untrammelled by whatever

conclusion or satisfaction was arrived at before

issuing the notice. Therefore, the person who

hears and considers the objections of the

committee does not get tied down to the

conclusions or satisfaction arrived at before

issuing the notice giving opportunity to the

committee to state its objections. Hence, in

cases where opportunity to state objections is

RP417/09 -: 7 :-

given, it is unnecessary that the same person who

was satisfied that any among the grounds in

clauses (a) to (d) of sub-section 1 of Section 32

exists and had issued the notice giving

opportunity to the committee to state its

objections, should himself hear the committee on

its objections; or as a necessary corollary, the

entire proceedings call for being rendered void

necessitating a person exercising the powers of

the Registrar to start the exercise de novo from

the stage of consideration of the files even

before issuing any notice giving opportunity to

the committee to state objections. It was hence

that it was stated in the last paragraph of the

judgment sought to be reviewed that the first

respondent could proceed with hearing de novo

following a notice that may be issued to those

entitled to be heard and the proceedings shall

commence from the state at which the parties

stood on the date of issuance of notice that led

to the hearing of the petitioner by

Sri.Omanakuttan (the officer who passed the order

RP417/09 -: 8 :-

that was impugned in the writ petition).

For the aforesaid reasons, I do not find any

error apparent on the face of the record or any

other ground warranting review of judgment under

Article 226 of the Constitution of India. The

review petition fails. The same is accordingly

dismissed.

THOTTATHIL B. RADHAKRISHNAN,
JUDGE.

Sha/250509