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2000 DIGILAW 285 (KER)

Francis v. Johny Chandy

2000-06-02

S.SANKARASUBBAN

body2000
JUDGMENT S. Sankarasubban, J. 1. This original petition has been filed to quash Ext.P2 order passed by the Enquiry Commissioner & Special Judge, Trichur. Second respondent is the President of Fathima Nagar Cooperative Bank, Trichur, Petitioner filed a complaint before the first respondent alleging offences committed under S.13 (1)(d) read with S.13(2) of the Prevention of Corruption Act. The complaint filed by the petitioner was numbered as M.P.No.84/1996 was referred to Deputy Superintendent, Vigilance and And Corruption Bureau, Trichur for registering the crime and investigation of the same. The Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau registered a crime as 3/97 and thereafter, without proper enquiry, referred the case as mistake of fact. Thereupon, petitioner filed a protest complaint before the first respondent as M.P.No.234/1997 True copy of the complaint is produced as Ext.P1. First respondent, after hearing counsel for the petitioner and the legal advisor of Vigilance and Anti Corruption Bureau, Kochi, passed an order in M.P.No.234/1997 holding that the sanctioning authority under the Prevention of Corruption Act to prosecute the President of a Cooperative Society is the Government and directed the petitioner to obtain the sanction for prosecution from the Government and the case was adjourned to 20-4-1999. Copy of the abovesaid order is produced as Ext.P2. It is challenging Ext.P2 that this Original Petition has been filed. 2. According to the petitioner, Government is not the sanctioning authority. Further, it is submitted that so far as the President of a Cooperative Society is concerned, there is no sanctioning authority and hence, Ext.P2 order is wrong. 3. A counter affidavit has been filed on behalf of the second respondent. Counter affidavit mainly gives the details about the falsity of the, case set up by the petitioner. I am not concerned with that at present. Second respondent submitted that he will not come under the definition of public servant. 4. Question for consideration is whether Ext.P2 is valid or not. First ' respondent in Ext.P2 order has stated thus: "The position does not stand good in relation to the President of Cooperative Society. I am not concerned with that at present. Second respondent submitted that he will not come under the definition of public servant. 4. Question for consideration is whether Ext.P2 is valid or not. First ' respondent in Ext.P2 order has stated thus: "The position does not stand good in relation to the President of Cooperative Society. The Board of Directors of the Cooperative Society itself can be superseded by the Government and in such cases, it is the Government (the Government of the State) that is the sanctioning authority to prosecute the President of the Cooperative Society and by SRO.482/ 94 amending the Rules of business of the Government of Kerala, the power to issue sanction for prosecution of a public servant vested with the Government, is authorised to be exercised by the Commissioner and Secretary (Vigilance). Hence sanction for prosecution has to be obtained from the Government". 5. According to me, the order passed by the first respondent is not correct. The reason on the basis of which the first respondent came to the conclusion that the Government is the sanctioning authority is that the Board of Directors can be superseded by the Government. Under S.19 of the Prevention of Corruption Act, 1988, in the case of a person who is employed in connection with the affairs of the Union sanction has to be obtained from the Central Government. In the case of a person, who is employed in connection with the affairs of a State, it is the State Government and in the case of any other person, the authority competent to remove him from his office. So far as the present case is concerned, clauses (a) and (b) of S.19 do not apply. But we have to find out as to whether clause (c) of S.19 applies. Under clause (c) in the case of any other person, of the authority competent to remove him from his office. First respondent has taken the view that since the Government exercised the power of supersession, the Government is the competent authority. This view is not correct. So far as supersession of the Society is concerned, relevant sections are 32 and 33 of the Kerala Cooperative Societies Act: Section. First respondent has taken the view that since the Government exercised the power of supersession, the Government is the competent authority. This view is not correct. So far as supersession of the Society is concerned, relevant sections are 32 and 33 of the Kerala Cooperative Societies Act: Section. 32 of the Act deals with supersession of the Committee and S.33 deals with a situation where a new Committee is not elected, where the term of the old committee is expired or where the existing committee becomes disqualified. Here, it is not the removal of the President that takes place under Secs. 32 and,33 of the above Act. What takes place is the removal of the Committee. It cannot be said that the President is removed. Further, it is not the Government which has to exercise the function under Secs. 32 and 33. It is the Registrar of Cooperative Societies who has to exercise the function. Hence, according to me, the direction given by the first respondent to obtain sanction from the Government is not legal. 6. So far as president in a cooperative society is concerned, the procedure regarding election is mentioned in R.43 of the Kerala Cooperative Societies Rules and is elected by the members of the Managing Committee. It does not speak anything regarding the removal of the President. A Division Bench of this court in Chacko v. Jaya Varma - 1999 (3) KLT 680 has held that there is no provision to remove the President of a Cooperative Society by no confidence motion. A perusal of the Act and Rules do not show that there is any power to expell the President. The only other provision is R.44 of the Rules. That deals with disqualification of members. R.44(2) says that a member of the committee shall cease to hold his office on certain conditions. S.44(2)(c) of the Rules says that a member shall cease to hold his office, if he is subsequently seen to be disqualified under sub-rule (1) on the date of election itself. Clause (3) of R.44 of the Rules says that if any person is or becomes disqualified to be a member of the committee, the Registrar may on his own motion or on a representation made to him by any member issue a notice and hear him. R.44 only deals with disqualification of members. Clause (3) of R.44 of the Rules says that if any person is or becomes disqualified to be a member of the committee, the Registrar may on his own motion or on a representation made to him by any member issue a notice and hear him. R.44 only deals with disqualification of members. I don't think, that can be applied to the present case, because here we are concerned with taking action against the President of a Society. Further, under the Rules, for disqualification, the Government does not play any part. Disqualification takes place on the happening of certain events and only Registrar declares that the person is disqualified to be a member. 7. Supreme Court had occasion to consider the question regarding Member of Parliament in the decision reported in P.V. Narasimha Rao v. State AIR 1998 SC 2120 . The Supreme Court repelled the contention that the President is the sanctioning authority. With regard to the Member of Parliament, there is no authority competent to remove a Member of a Parliament and to grant sanction for his prosecution under S.19(5) of the Prevention of Corruption Act. Further when there is an authority competent to remove a public servant and to grant sanction for his prosecution under S.19(1) of the Prevention of Corruption Act, the requirement of sanction precludes a court from taking cognizance of the offences mentioned in S.19(1) against him in the absence of such sanction. But as a matter of guidance, it was directed that till suitable measures are taken by the Parliament, permission of the Chairman of the Rajya Sabha/Speaker of the Lok Sabha should be obtained. With regard to the question whether the general body of a Cooperative society can remove the President, in para.89 of the decision, P. V. Narasimha Rao v. State - AIR 1998 SC 2120 , the Supreme Court observed thus: "There the cooperative society or its educational institution may be an institution run by a society through an elected office-bearers/Managing Committee. The office-bearer of such an institution would be the elected President or Secretary of the Managing Committee who would be removable only by the body which elected him. The office-bearer of such an institution would be the elected President or Secretary of the Managing Committee who would be removable only by the body which elected him. The consideration which weighed with this court in Veeraswami for holding that Parliament could not be intended to be the sanctioning authority under S.6(1)(c) of the 1947 Act would equally apply to the general body of members of a cooperative society under clause (ix) and to the general body of members of a society running an institution referred to in clause (xii) and it can be said that the said bodies could not have been intended by Parliament to be the sanctioning authority for the purpose of S.19(1)(c) of the 1988 Act". 8. Thus, on going through the provisions of the Act and the decisions referred to above, I am of the view that there is no sanctioning authority so far as the President of a Cooperative Society is concerned. But as per the decisions quoted above, even for the purpose of prosecution, it is not necessary to obtain sanction under S.19 of the Prevention of Corruption Act unless there are sanctioning authorities coming within Clause.1 to 3 of S.19 of the Prevention of Corruption Act, 1988. As an Act of recent origin, it has widened the definition of public servant. The Cooperative Societies Act is enacted by the State. The State Government has to look into this matter and pass appropriate provisions regarding sanctioning authority. The provision of sanction is made as a check so that baseless allegations or complaints need not be treated by the court of law. 9. Thus, after considering the various aspects, I am of the view that Ext.P2 order cannot stand and it is quashed. Further, I declare that it is not necessary to obtain sanction under S.19 of the Prevention of Corruption Act with regard to the case filed against the second respondent. Original Petition is allowed.