TOMY JOSEPH Vs. JOINT REGISTRAR OF COOPERATIVE SOCIETIES

JUDGEMENT

(1.) The Writ Petitioner is the president of the Managing Committee of the Idukki District Dealers Co-operative Society Limited. He has approached this Court, being aggrieved by Ext.P2 order dtd. 23/12/2022 of the 1st respondent, which placed the elected Managing Committee of the Society under suspension in the exercise of jurisdiction under Sec. 32 of the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as 'the Act'). Ext.P2 order was issued pending the completion of an inquiry under Sec. 65 of the Act and relying on two interim reports dtd. 14/11/2022 and 15/12/2022, of the inquiry officer.

(2.) Sri. George Poonthottam, learned Senior counsel appearing for the petitioner, on the instructions of Adv.Nisha George, would contend that the action taken by the 1st respondent is contrary to the law and the express provisions of Sec. 65 of the Act. It is submitted that the provisions of Sec. 65(6) of the Act indicate that the action under Sec. 32 can be initiated only on completion of the inquiry. It is submitted that going by the law laid down by a Division Bench of this Court in Bose E.S v. Managing Committee (Under Order of suspension), Vellathooval Service Co- Operative Bank Ltd. and others, I.L.R.2021(3) Kerala 473, action under Sec. 32 of the Act could not be initiated without completing the inquiry commenced under Sec. 65 of the Act. Specific reliance is placed by the learned Senior Counsel appearing for the petitioner on paragraphs Nos.18 and 22 of the judgment of the Division Bench of this Court in Bose E.S. (supra) to emphasise that the provisions of Sec. 65 of the Act read with the provisions of Sec. 32 of the Act do not contemplate taking of any action under Sec. 32 of the Act based on any preliminary report of inquiry under Sec. 65 of the Act. It is submitted that a reading of Ext.P2 order issued by the 1st respondent does not even suggest why the inquiry under Sec. 65 of the Act cannot be completed without suspending the Committee by invoking the power under Sec. 32(3) of the Act read with the 3 rd proviso to Sec. 32(1) of the Act. He states, on the authority of Mohinder Singh Gill and another v. Chief Election Commr., New Delhi and others, (1978) 1 SCC 405, that the order must either stand on its own or not at all. He placed reliance on the Full Bench ruling of this Court in Reji K. Joshy and Others v. Joint Registrar of Co-operative Societies (General) Kollam and Others, 2022(3) KHC 317(FB), to contend that after an inquiry is completed under the provisions of Sec. 65 of the Act, a copy of the inquiry report has to be furnished to the members of the Managing Committee before action under Ss. 32 or 68 of the Act is taken by the Registrar or his delegate. It is submitted that the view taken by a learned Single Judge of this Court in Hameed Kutty v. Joint Registrar of Cooperative Societies, 2017 (1) KLT 511 is no longer good law in the light of the law laid down by the Full Bench of this Court in Reji K. Joshy (supra) and the law laid down by the Division Bench of this Court in Bose E.S (supra). It is submitted that the view taken by the learned Single Judge in Hameed Kutty (supra) has not obtained any seal of approval by the Division Bench while deciding the appeal against that judgment. The judgment of the Division Bench of this Court is reported as Hameed Kutty M.S and Others v. Joint Registrar of Co-op. Societies (General) Ekm and Others, 2018 (3) KHC 540 (DB). It is submitted that even the copies of the preliminary reports, which have been relied upon to issue Ext.P2 order, have not been supplied to the petitioner or any other member of the elected Managing Committee. However, they have now been placed on record through the counter affidavit filed in this case. He states that the misdeeds (if any) of the employees cannot be placed on the shoulders of the elected committee. It is submitted that the suspension of the elected Managing Committee has serious and drastic consequences, as observed by the Division Bench of this Court in Bose E.S (supra). It is submitted that since the inquiry under Sec. 65 of the Act has not yet been completed, the action taken by the 1st respondent is without jurisdiction and ought to be set aside by this Court in the exercise of jurisdiction under Article 226 of the Constitution of India.

(3.) Smt. C.S Sheeja, the Learned Senior Government Pleader appearing for the respondents would submit that Ext.P2 order does not suffer from any vice warranting interference with it under Article 226 of the Constitution of India. It is submitted that the judgments of the learned single judge in Hameed Kutty (supra), as well as the Division Bench Judgment that affirms the view taken by the Learned Single Judge in Hameed Kutty (supra) as well as the Division Bench, judgment of this Court in Bose E.S (supra), are authorities for the proposition that the power under Sec. 32 of the Act includes the power of suspension, of course, to be exercised only in exceptional cases and where the situation so warrants. Learned Senior Government Pleader places reliance on the findings in Ext.P2, which, according to her indicates that the continuance of the Managing Committee in office, pending the inquiry, will have serious consequences as it is clear that the Managing Committee was indulging in various activities to cover up the various acts of omission and commission, which are mentioned in Ext.P2. It is submitted that a reading of Sec. 64(4A) of the Act and Rule 47(d) of the Kerala Co-operative Societies Rules would indicate that even assuming without conceding that the various acts of omission and commission which form the subject matter of the inquiry under Sec. 65 of the Act, were done without the knowledge of the Managing Committee, the Managing Committee had a responsibility to ensure that the officers of the Society work strictly in accordance with the provisions of the Rules, Acts and instructions, governing the business of the Society. It is submitted that the view taken by the Single Judge in Hameed Kutty (supra) lays down the correct position in law, and there is nothing in the order of the Full Bench of this Court in Reji K. Joshy (supra) or in the Division Bench judgment of this Court in Bose E.S (supra) to indicate that the view taken by the learned Single Judge in Hameed Kutty (Supra) has been overruled or set aside. The Learned Senior Government Pleader also placed reliance on the judgment of a Division Bench of this Court in State of Kerala v. Sudarsanan, 1997 (2) KLT 522 to contend that to exercise power under Sec. 32 of the Act, it is not even necessary that an inquiry under Sec. 65 of the Act should have been commenced. It is submitted that the wording of Sec. 32 of the Act is very clear and it indicates that the action can be taken under that provision based on an inquiry; on the report of the financing bank; any report of the Vigilance and Anti-Corruption Bureau of the Government or the Vigilance Officer or otherwise. It is submitted that it is clear from the reading of Sec. 32 of the Act that even if Ext.P2 order were deemed to be an order independent of the proceedings initiated under Sec. 65 of the Act, it could have been justified in law, and there is no ground on which this Court could find that the 1st respondent exceeded his jurisdiction in issuing Ext.P2 order.