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2024 DIGILAW 1261 (KER)

Mookannur Service Co-Operative Bank, Ltd. Represented By Its Secretary v. State Of Kerala, Represented By Secretary To Government, Department Of Co-Operation

2024-10-04

N.NAGARESH

body2024
JUDGMENT : (N. Nagaresh, J.) : The question arising for consideration in this writ petition is whether Ext.P17 order of the 1st respondent rejecting Ext.P15 statutory Revision Petition filed under Section 87 of the Kerala Co-operative Societies Act challenging Ext.P14 Enquiry Report under Section 65 is justifiable or not? 2. The 1st petitioner is a Co-operative Society/Bank. The 2nd petitioner is the President of the Society. By an order dated 01.01.2017, the Joint Registrar of Co-operative Societies ordered enquiry under Section 65 in respect of disbursement of loans by the Society and the financial structure and security of the Society. The 3rd respondent-Assistant Registrar, who was the Enquiry Officer, submitted Ext.P14 report. Ext.P14 report disclosed irregularities in the functioning of the Society. 3. The petitioners came to know about Ext.P1 Enquiry Report only when an order was issued under Section 68(1). The petitioners thereupon filed Ext.P15 Revision Petition before the Government. The Government rejected Ext.P15 Revision Petition stating that there is no provision under Section 87 of the Kerala Co-operative Societies Act for filing revision against Ext.P15 Enquiry Report. The petitioners are challenging Ext.P17 order of the Government. 4. The petitioners state that as per Section 87, the Government has revisional power in respect of any proceeding, not being a proceeding in respect of which an appeal to the Tribunal is provided by Section 82, to satisfy himself or themselves as to the regularity of such proceeding, or the correctness, legality or propriety of any decision passed or order made thereon, an if in any case, it appears to the Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, the Government may pass orders accordingly. The petitioners contend that since an appeal is not provided by Section 82 against a Section 65 Enquiry Report, Ext.P15 Revision Petition is legal and maintainable. The petitioners also pleaded that the findings in the Section 65 report are without application of mind, illegal, perverse and hence Ext.P14 Enquiry Report is liable to be set aside. 5. The 2nd respondent-Joint Registrar resisted the writ petition filing counter affidavit. The 2nd respondent stated that Section 87 deals with powers of revision of Registrar and Government. The Revision Petition filed against an Enquiry Report is not maintainable. Ext.P14 Enquiry Report is neither any proceeding nor any decision or order. It is only an enquiry report. 6. 5. The 2nd respondent-Joint Registrar resisted the writ petition filing counter affidavit. The 2nd respondent stated that Section 87 deals with powers of revision of Registrar and Government. The Revision Petition filed against an Enquiry Report is not maintainable. Ext.P14 Enquiry Report is neither any proceeding nor any decision or order. It is only an enquiry report. 6. The 2nd respondent pointed out that inquiry under Section 68(1) is going on to find out the loss caused to the Society by the overvaluation of mortgaged landed property in 78 loans. The petitioners will be getting opportunity to controvert the findings in the Enquiry Report in the inquiry under Section 68(1). The writ petition is therefore liable to be dismissed. 7. The counsel for the petitioner relied on the judgment of this Court in K.T. Velayudhan v. State of Kerala and others [ AIR 2000 Ker 125 ] to urge that a Revision Petition will lie under Section 87 against any proceedings against which no appeal lies. The question whether a Revision Petition would lie against an order of the Director of Co-operative Audit came up for consideration before a Division Bench in W.A. No.288/2018 and the Division Bench directed the Government to consider the Revision Petition filed under Section 87 against the order of the Director of Co- operative Audit. Going by the said direction given by the Division Bench of this Court, a Revision Petition is maintainable against Section 65 enquiry report also, urged the counsel for the petitioner. In the judgment in Peroor Service Co-operative Society Limited v. State of Kerala and others [2017 (4) KLT SN 110], a Single Bench of this Court also held that since there is no provision to file appeal against an Audit Certificate, a review petition is maintainable before the Registrar of Co-operative Societies. 8. The counsel for the petitioner argued that a Section 65 Enquiry Report containing findings adverse to the petitioners, has serious civil and statutory consequences. As the petitioners have no appellate remedy against Section 65 Enquiry Report, necessarily the State is bound to consider the Revision Petition filed by the petitioners. The counsel for the petitioners relied on the judgment of the Apex Court in State of Orissa v. Dr. As the petitioners have no appellate remedy against Section 65 Enquiry Report, necessarily the State is bound to consider the Revision Petition filed by the petitioners. The counsel for the petitioners relied on the judgment of the Apex Court in State of Orissa v. Dr. Binapani Dei [ AIR 1967 SC 1269 ] to urge that though an Enquiry Report is of administrative character, if the report involves civil consequences, it must be made consistently with the rules of natural justice. The petitioners had no opportunity to defend themselves in Section 65 proceedings. Therefore, necessarily, the petitioners should be given an opportunity to challenge the report by filing Revision Petition, contended the counsel for the petitioners. 9. Relying on the judgment of the Apex Court in A.K. Kraipak and others v. Union of India and others [ AIR 1970 SC 150 ], the counsel for the petitioner argued that an unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi judicial enquiry. The rules of natural justice are not embodied in Section 65. Therefore, the grievance of the petitioners against Ext.P14 report is liable to be considered by entertaining the Revision Petition filed by the petitioners. 10. The Senior Government Pleader, on the other hand, relied on the Full Bench judgment of this Court in Kudayathur Service Co-operative Bank Limited v. Joint Registrar of Co-operative Societies (General) [ 2022 (3) KLT 222 (FB)]. In the said judgment, the Full Bench of this Court held that the nature of the statutory duty imposed on the authorities under the Kerala Co-operative Societies Act does not imply any obligation to hear the parties concerned on the acceptability or otherwise of the report of inquiry or inspection, before a tentative decision is taken on the further action on the report. 11. I have heard the learned counsel for the petitioners and the learned Senior Government Pleader representing the respondents. 12. Ext.P14 is an Enquiry Report drawn by the Assistant Registrar (General), the Enquiry Authority. Ext.P14 has been drawn in exercise of the powers under Section 65(1)(a) of the Kerala Co-operative Societies Act. The question is whether a revision will lie against Ext.P14 report under the provisions of the Kerala Co-operative Societies Act, 1969. Section 87 of the Act reads as follows: 87. Ext.P14 has been drawn in exercise of the powers under Section 65(1)(a) of the Kerala Co-operative Societies Act. The question is whether a revision will lie against Ext.P14 report under the provisions of the Kerala Co-operative Societies Act, 1969. Section 87 of the Act reads as follows: 87. Powers of revision of Registrar and Government:- (1) The Registrar may of his own motion or on application call for and examine the records of any officer subordinate to him not being an officer exercising the powers of the Registrar and the Government may of their own motion or on application call for and examine the records of the Registrar including any officer exercising the powers of the Registrar, in respect of any proceeding, not being a proceeding in respect of which an appeal to the Tribunal is provided by Sec.82, to satisfy himself or themselves as to the regularity of such proceedings, or the correctness, legality or propriety of any decision passed or order made thereon and if, in any case it appears to the Registrar or the Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, he or they may pass orders accordingly: Provided that every application to the Registrar or the Government for the exercise of the powers under this section shall be preferred within three months from the date on which the proceeding, decision or order to which the application relates was communicated to the applicant. (2) No order prejudicial to any person shall be passed under sub-section (1) unless such person has been given an opportunity of making his representation. (3) The Registrar or the Government, as the case may be, may suspend the execution of any decision or order pending the exercise of his or their power under sub-section (1) in respect thereof. (4) The Registrar or the Government may award costs in proceedings under this section to be paid either out of the funds of the society or by such party to the application for revision as the Registrar or the Government may deem fit. 13. (4) The Registrar or the Government may award costs in proceedings under this section to be paid either out of the funds of the society or by such party to the application for revision as the Registrar or the Government may deem fit. 13. Under Section 87, the Government may suo motu or on application call for and examine the records of the Registrar including any officer exercising the powers of the Registrar, in respect of any proceeding, not being a proceeding in respect of which an appeal to the Tribunal is provided by Section 82 to satisfy themselves as to the regularity of such proceeding, or the correctness, legality or propriety of any decision passed or order made thereon. If it appears to the Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, the Government may pass orders accordingly. 14. It is true that Section 82 does not provide for an appeal against a Section 65 report. A Full Bench of this Court considered the scope of Inspection conducted under Rule 66 of the Kerala Co-operative Societies Rules. The Full Bench held that the Scheme of the Kerala Co-operative Societies Act is that correctness or otherwise of the report of Inquiry or Inspection, shall be canvassed by the parties concerned in the hearing provided to them on the further action taken pursuant to the report. The Full Bench held so on the ground that if the Registrar does not propose any action based on the report, then there is no question of extending any opportunity of hearing. The Full Bench held that the nature of the statutory duty imposed on the authorities under the Act does not imply any obligation to hear the parties concerned on the acceptability or otherwise of the report of Inquiry or Inspection, before a tentative decision is taken on the further action on the report. Section 65 Enquiry Report also stands on the same footing. 15. Section 65 provides for inquiry by Registrar into the constitution, working and financial condition of the Society. There is no scope for an opportunity of hearing when such a departmental enquiry is held, though after amendment to Section 65 as per the Kerala Co-operative Societies (Amendment) Act, 2023 persons related to or involved in the inquiry are entitled to receive a notice and opportunity of hearing. There is no scope for an opportunity of hearing when such a departmental enquiry is held, though after amendment to Section 65 as per the Kerala Co-operative Societies (Amendment) Act, 2023 persons related to or involved in the inquiry are entitled to receive a notice and opportunity of hearing. Ext.P14 enquiry report has been drawn prior to the amendment. 16. Section 68 provides for surcharge. If in the course of a Section 65 enquiry it is found that any person who is or was entrusted with the organisation or management of such Society or who is or has at any time being an Officer or an employee of the Society, has made any payment contrary to the Act and the Rules or the bye-laws, or has caused any loss or damage in the assets of the Society by breach of trust or willful negligence or mismanagement or has misappropriated or fraudulently retained any money or other property belonging to such Society, the Registrar may inquire into the conduct of such person. When such inquiry is conducted under Section 68(1), the Registrar has to give the persons concerned opportunity of being heard. Therefore, before a Surcharge proceeding is initiated pursuant to a Section 65 report, necessarily, persons indicted in the Section 65 Enquiry Report will get an opportunity to question the findings of the Enquiry Officer as contained in the report. 17. Under Section 32, when the Registrar proposes supersession of Managing Committee of a Society, the Registrar is bound to give the Managing Committee an opportunity to state its objection. If such proceedings for supersession are initiated on the basis of a Section 65 report, in that case also the Managing Committee will get opportunity to state its objection. The findings in the Section 65 report therefore can be questioned if Section 32 proceedings for supersession are initiated. Thus, when any action is taken based on Section 65 Enquiry Report, the affected parties will get opportunity of hearing to question the findings in the report. 18. In the judgment in W.P.(C) No.888 of 2020, a learned Single Judge of this Court considered the issue of the stage at which a member of Managing Committee is called upon to offer his comments or prefer his objections with regard to the drawing up of any report, that is relied upon against him, or to commend upon the conduct of the enquiry itself. This Court held as follows: “The statutory scheme under the Co-Operative Societies Act envisages that the Registrar has to be satisfied with regard to the necessity for conducting an enquiry as contemplated under Section 68 of the Act. Such subjective satisfaction of the Registrar has to be based on material that is brought to his notice in the course of an audit, enquiry, inspection or winding up of a society and if it is found that any person, who is or was entrusted with the organisation or management of the society or who is or has at any time been an officer or employee of the society, has made any payment contrary to the Act and Rules or has caused any loss or damage to the assets of the society by breach of trust, willful negligence, mismanagement or misappropriation or fraudulently retained any money or other property belonging to such society or has destroyed or caused destruction of the records of the society. It is necessary to note at this stage that, up to the stage when a notice is issued to the societies concerned, after the subjective satisfaction of the 1st respondent Registrar is arrived at, the society cannot be said to be an aggrieved person since there is no action initiated against the society which could prejudicially affect the society. The stage at which the petitioner is called upon to offer his comments or prefer his objections with regard to the drawing up of any report that is relied upon against him, or to comment upon the conduct of the enquiry itself, is when the notice is issued to him in terms of Section 68(1) of the Act. In the instant Writ Petition, that notice is produced as Ext.P8. A reading of Section 68 in its entirety would indicate that after the Registrar is satisfied that an enquiry is necessary into the conduct of the persons, in the circumstances described, in Section 68(1) of the Act, he may by an order in writing enquire into the conduct of such person, and the order to be passed after the enquiry must be preceded by an opportunity to the affected person to raise his objections and voice the same before the Registrar. It is only thereafter, and when an adverse order is passed against him under Section 68(2) of the Act, that the petitioner can be said to be aggrieved by the order for the purposes of pursuing his remedies, either under the Statute or before the writ court.” 19. It is evident that the Managing Committee of the Society and members of the Managing Committee will get opportunity to question the Section 65 Enquiry Report including any findings contained therein, if and when any action is initiated based on the report. Therefore, going by the spirit of the Full Bench judgment of this Court in Kudayathur Service Co-operative Bank Limited (supra) and taking into consideration the provisions of the Act, 1969, it has to be held that a revision under Section 87 of the Kerala Co-operative Societies Act, 1969 is not maintainable against Ext.P14 report drawn under Section 65 of the Act. The writ petition therefore fails and it is dismissed.