S LAKSHMANAN Vs. V VELLIANKERI

JUDGEMENT

(1.) By a reference order dated 21st March, 2000 made by the Division Bench of Arijit Pasayat, C.J. (as His Lordship then was) and K.S. Radhakrishnan, J. the following question of law has been referred to the Full Bench for decision:

(2.) S.28 of the Kerala Cooperative Societies Act, 1969, (hereinafter referred to as the Act) is titled Appointment of Committee and provides that the general body of a society shall constitute a committee, for a period not exceeding five years, in accordance with the bye laws and entrust the management of the affairs of the society to such committee. S.33(1) of the Act contemplates appointment of new committee or administrator, inter alia, where a no - confidence motion is passed by the general body against the existing committee. R.43 of the Kerala Cooperative Societies Rules, 1969, (hereinafter referred to as the Rules) deals with the election of President, Vice President, Treasurer or any other officer by the members of the committee. This rule provides for a meeting of the members of the committee to be convened and election to be held to the office of the office bearers of the committee. The counsel on both sides concede that there is no provision in the Act or the Rules made thereunder or the Bye laws which enables or prescribes the procedure for passing of a no - confidence motion by the elected managing committee against the President or any other office bearer, nor is there any provision indicating the consequences of such a no - confidence confidence motion being passed.

(3.) Mr. Ramakumar and Mr. Rajit, learned counsel appearing for the appellants, contend that the right to express no - confidence in an elected officer is inherent in the democratic process of representative governance, and irrespective of whether such a right is formally enacted in a statute, the very concept of participative democracy, which is equally applicable to Cooperative Societies, would enable the expression of no - confidence by the passing of an appropriate resolution. Counsel for the appellants also contend that a statutory provision, if made, would only enable the regulation of the power which must always be read as inherent in the electorate in a participative democratic set up. They highlight the principle expressed in S.16 of the General Clauses Act and S.15 of the Kerala Interpretation and General Clauses Act, 1125 (Act No. 7 of 1125). They pointed out that the principle in both these Acts is that when a power to make any appointment is conferred by a statute, then, unless a contrary intention appears, the authority having such power of making the appointment shall also have the power to suspend or dismiss any person so appointed whether by itself or by any other authorities in exercise of such power. Counsel also referred to Art.74, 75(3), 163 and 164(2) of the Constitution of India. They urge that under Art.75(3) the Council of Ministers shall be collectively responsible to the House of People. Similarly, under Art.164(2), the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. The President / Governor in the State shall be advised in the exercise of his function by the Council of Ministers with the Prime Minister / Chief Minister respectively in the Centre and in the States. Counsel contend that the concept of collective responsibility to the House itself implies that the Council of Ministers shall be liable to be dismissed if it ceases to enjoy the confidence of the House. Emphasising that the constitution itself contain no provision of passing a no - confidence motion and the consequence thereof, counsel urged that, by the very principle of participative democracy, a convention has been developed whereby the council of Ministers, which is collectively responsible to the House, shall either resign or be dismissed forthwith, if it ceases to enjoy the confidence of the House. The manner of assessing this is a resolution of no - confidence placed before the House.