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2023 DIGILAW 55 (KER)

M. v. Rajendran VS Joint Registrar of Co-Operative Societies (General), Thrissur

2023-01-17

DEVAN RAMACHANDRAN

body2023
JUDGMENT : DEVAN RAMACHANDRAN, J. 1. The petitioner is stated to be the President of the Managing Committee of the 3rd respondent-Adat Farmers Service Cooperative Bank Ltd. (Society, for short), which has now been superseded through Ext.P17 order. 2. The petitioner asserts that Ext.P17 was issued without affording him an opportunity of being heard - he having come to know of it only when it was published in the news media; and further that none of the statutory requirements under Section 32 of the Kerala Co-operative Societies Act (‘KCS Act’ for short) had been followed, before it had been issued. He thus prays that Ext.P17 be set aside. 3. I have heard Sri. George Poonthottam - learned Senior Counsel, instructed by Smt. Ann Maria Francis, appearing for the petitioner; Sri. P.C. Sasidharan - learned counsel for respondents 2 and 3 and Smt. C.S. Sheeja - learned Senior Government Pleader appearing for the 1st respondent. 4. Before I proceed further, I must record that, since the specific contention of the petitioner is that he was not heard before Ext.P17 had been issued, it will be treated by me as a preliminary objection, because, if that is to be found in his favour, the said order will have no legs to stand on, going by various judicial precedents covering the field. I say so, since, in such event, the question whether there was proper consultation and if other requirements under the statutory Scheme had been followed, would be relegated to a second position in its rigour and consideration. 5. Sri. George Poonthottam - learned Senior Counsel, vehemently argued that his client was never given an opportunity of being heard and he pointed out to Ext.P15 notice issued by the Joint Registrar, under the provisions of Section 32 of the KCS Act. 5. Sri. George Poonthottam - learned Senior Counsel, vehemently argued that his client was never given an opportunity of being heard and he pointed out to Ext.P15 notice issued by the Joint Registrar, under the provisions of Section 32 of the KCS Act. He asserted that the aforesaid notice only offered his client and others an opportunity of furnishing their written explanations against the action proposed; and that it has now been well settled, through the judgment of a Full Bench of this Court in Reji K. Joshy and Others vs. Registrar of Co-operative Societies (General), Kollam and Others, 2022 (3) KHC 317 that “the Act contemplates an opportunity of hearing to all affected persons before action is taken on the report of inquiry or inspection, whether it be under Section 32 or under Section 68, except in situations provided for in Section 32 where the Registrar is empowered to dispense with the opportunity of hearing.” He argued that, therefore, when no other notice has been issued to his client, Ext.P17 is rendered forensically incompetent. 6. After arguing as afore, and as his second limb of submissions, the learned Senior Counsel contended that the Circle Co-operative Union and the Financing Bank were apparently consulted by the Joint Registrar of Co-operative Societies by issuing to them Ext.R1(f) notice; but that this contained none of the documents which were statutorily required to be enclosed, as is evident from itself. He relied upon the judgment of a learned Division Bench of this Court in Sahadevan vs. Padmanabhan, 2004 (1) KLT 192 , to predicate that it is not merely sufficient that the explanation of his client alone be attached to the “tentative findings” but that every other document mentioned therein ought to have been so. His singular argument was that, in the absence of such documents, even if the consultees had given their opinion, it can only be seen to be a futile formality, since it is clear that they had no idea on what basis the said findings had been entered into by the Joint Registrar. 7. As an adscititious argument, Sri. His singular argument was that, in the absence of such documents, even if the consultees had given their opinion, it can only be seen to be a futile formality, since it is clear that they had no idea on what basis the said findings had been entered into by the Joint Registrar. 7. As an adscititious argument, Sri. George Poonthottam, learned Senior Counsel, then contended that, even going by Exts.R1(f), R1(g) and R1(h) - which are the opinions placed on record by the Circle Co-operative Union and the Financing Bank respectively - it is luculent that they were settled by Authorities who are much below the Joint Registrar; and that this is more so in the case of the Financing Bank, which was, concededly, under the management of the said Authority himself at the relevant time. The learned Senior Counsel thus prayed that Ext.P17 be set aside for all these reasons. 8. Smt. C.S. Sheeja - learned Senior Government Pleader, refuted the afore contentions of the petitioner saying that, before Ext.P17 order had been issued, the petitioner and others were served with Ext.P15 notice, (which is also produced as Ext.R1(i) by the 1st respondent), giving them an opportunity of offering explanation to the allegations contained therein. 9. Smt. C.S. Sheeja then argued that, even though the petitioner and others preferred Ext.P16 reply, they did not seek an opportunity of being heard; and therefore, that the Joint Registrar correctly went on to issue Ext.P17 order dated 06.04.2018, but only after obtaining the mandatory concurrence from the consultees, as is statutorily required. 10. The learned Senior Government Pleader further contended that the argument of the petitioner, that Exts.R1(g) and R1(h) concurrences given by the consultees are illegal solely because they were settled by Officers below the Rank of Joint Registrar, cannot hold water because, as evident therefrom, competent officers were entrusted with the task of evaluating the “tentative opinion” of the Joint Registrar and to make their recommendations in terms of the statutory Scheme qua Section 32 of the KCS Act. 11. Pertinently, she conceded that the Financing Bank was, at the relevant time, under the management of the Joint Registrar, but pointed out that, as is manifest from the second page of Ext.R1(h), said Authority adopted a resolution relegating it to the General Manager of the Bank to take an apposite decision on the tentative findings entered by him in Ext.R1(f). Pertinently, she conceded that the Financing Bank was, at the relevant time, under the management of the Joint Registrar, but pointed out that, as is manifest from the second page of Ext.R1(h), said Authority adopted a resolution relegating it to the General Manager of the Bank to take an apposite decision on the tentative findings entered by him in Ext.R1(f). She submitted that, therefore, in view of the peculiar circumstances which prevailed at the time when action was taken forward by the Joint Registrar, this is all that could have been done; and hence that the petitioner cannot be allowed to take advantage of a factual scenario, which was inevitable. 12. Smt. C.S. Sheeja thereafter, showed me that the allegations against the petitioner and others are so grave that no right thinking Authority could have permitted the Managing Committee to continue forward; and therefore, that Ext.P17 is irreproachable from that angle also. She thus prayed that this writ petition be dismissed. 13. I began this judgment saying that the primary question which deserves this Court’s singular attention is whether the processes, as are statutorily mandated, have been followed by the Joint Registrar before Ext.P17 order had been issued. 14. In this regard, I am certainly bound and guided by the judgment of the learned Full Bench in Reji K. Joshy (Supra), wherein, as rightly argued by Sri.George Poonthottam, the unanimous view was that an opportunity of hearing must be afforded to all affected persons before any action is taken on the report of enquiry or inspection, whether it be under Section 32 or Section 68 of the KCS Act, except in the situations provided in the former Section, under which, the Registrar has been given the power to dispense with such a hearing. 15. In the case at hand, the respondents have no contention that the provisions of Section 32 of the KCS Act, which empowered the Registrar to dispense with the opportunity of being heard to the petitioner, had been in any manner attracted. 16. On the contrary, it is expressly conceded that no such situation prevailed and this is evident from the fact that, in the counter affidavit filed on behalf of the 1st respondent dated 12.06.2019, his apodictic averment is to the effect that a notice of hearing had been afforded to the petitioner, but that he had not availed of the same. On the contrary, it is expressly conceded that no such situation prevailed and this is evident from the fact that, in the counter affidavit filed on behalf of the 1st respondent dated 12.06.2019, his apodictic averment is to the effect that a notice of hearing had been afforded to the petitioner, but that he had not availed of the same. Since there was no factual corroboration of the same, this Court had passed an order on 09.01.2023, asking the 1st respondent to clarify on what basis the afore assertion was made and further that, if the same was maintained to be true by him, then to produce the said document on record. However, in response to this, an affidavit dated 13.01.2023 has been filed by the 1st respondent, wherein, he unambiguously admits that, what he meant through the averments in his earlier counter affidavit was that Ext.P15 notice had been issued to the petitioner and others, giving them an opportunity of furnishing their written explanation and that this should be construed to be a notice of hearing also, particularly when the petitioner did not seek any further opportunity through a separate request. 17. I am afraid that the afore stand of the Joint Registrar can never appeal to this Court, especially when the right to be afforded an opportunity of being heard is manifest and inviolable from the statutory scheme, as has been declared by this Court in Reji K.Joshy (Supra). 18. That apart, when it comes to any action under Administrative Law, various judgments of this Court and that of the Hon’ble Supreme Court, particularly Automotive Tyre Manufacturers Association vs. Designated Authority and Others, (2011) 2 SCC 258 , render it ineluctable that unless a statutory provision, either specifically or by necessary implication, excludes the application of principles of natural justice, the requirement of giving reasonable opportunity of being heard is to be read in, particularly when the resultant order may have adverse civil consequences. The Hon’ble Supreme Court has, in fact, gone to the extent of saying “this principle holds good, irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi judicial and that it is equally trite that the concept of natural justice can neither be put in a straitjacket nor is it a general rule of universal application.” 19. Obviously, therefore, when it is now conceded that no opportunity of hearing had been afforded to the petitioner and others, before Ext.P17 had been issued, the same becomes incapable of being granted judicial favour. For this reason alone, said order is liable to be set aside. 20. Of course, before I conclude so, I am fully cognizant of the submissions of Smt. C.S. Sheeja - learned Senior Government Pleader, that Section 32 of the KCS Act, does not specify that an opportunity of being heard must be offered to the members of a Managing Committee, which is sought to be superseded. She pointed out that Section 32 only mandates that the competent Authority may “after giving the Committee an opportunity to state their objections, if any, by order in writing, removed the Committee and appointed in its place an Administrator or an Administrative Committee” (sic). Her argument was that, therefore, an opportunity of being heard need not be offered. 21. As I have already concluded above, Smt. C.S. Sheeja is attempting to argue against the holdings of a learned Full Bench of this Court in Reji K. Joshy (Supra) and against settled principles. The scope of law has been well expanded and explained through judicial pronouncements and binding precedents, which cannot be now sought to be read otherwise by the 1st respondent, which is a statutory Authority bound by it. 22. That apart, as I have already seen above, the 1st respondent has no case that he was not obligated to give a notice of hearing to the petitioner; but his stand in the counter affidavit is that he did so, with the latter refusing to accede to it. Though he now explains, through his additional affidavit, that what he intended was that Ext.P15 itself was a notice of hearing, the same is also belied by his own further averments to the effect that what was granted was only the opportunity of furnishing written explanation, which is undoubted because, he then further attempts to explicate that the petitioner did not seek any opportunity of being heard thereafter. 23. Indubitably, refusal of the 1st respondent in even offering an opportunity of being heard to the petitioner, in spite of his assertions in the counter affidavit, surely robs Ext.P17 of all legal force. 24. 23. Indubitably, refusal of the 1st respondent in even offering an opportunity of being heard to the petitioner, in spite of his assertions in the counter affidavit, surely robs Ext.P17 of all legal force. 24. With my conclusion as afore, obviously, I do not think that it will be necessary for this Court to enter into the merits of the contentions of the learned Senior Counsel - Sri. Geroge Poonthottam, regarding the worth of the consultation made by the Joint Registrar, as evident from Exts.R1(f), R1(g) and R1(h). However, I must record that going by Sahadevan (Supra), the Joint Registrar was certainly obligated to furnish all the relevant materials, particularly the show cause notice under Section 32(1) of the KCS Act, as also the explanations and objections of the Committee, to the consultees. Going by Ext.R1(f) dated 22.03.2018, the Joint Registrar appears to have forwarded only the explanation of the Committee, but without being accompanied by the show cause notice under Section 32(1) of the KCS Act and prima-facie, therefore, this Court cannot find favour with this either. 25. As regards the worth of the consultation by the consultees is concerned, I choose not to answer it because, the same is irrelevant and unnecessary, since Ext.P17 cannot be, in any case, granted imprimatur for the reasons already indicted above. 26. Resultantly I allow this writ petition and set aside Ext.P17.