Ajith Kumar K.R. v Registrar of Cooperative Societies, Pathanamthitta Service Cooperative Bank Ltd., Konni Marketing Cooperative Society Ltd., Chandy M.V.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 21ST DAY OF MAY 2018 / 31ST VAISAKHA, 1940** **WP(C).No. 1183 of 2018** **---------------------** ## **PETITIONER:** ## **-----------** **AJITH KUMAR K.R., ROHINI SADANAM, KUZHIKKATHIL, AZHOOR, PATHANAMTHITTA, PIN-689645.** **BY ADV.SRI.V.K.SUNIL** ## **RESPONDENT(S): -------------** **1. THE REGISTRAR OF COOPERATIVE SOCIETIES, JAWAHAR SAHAKARANA BHAVAN, THYCADU P.O., THIRUVANANTHAPURAM, PIN-695014.** **2. THE PATHANAMTHITTA SERVICE COOPERATIVE BANK LTD.NO.363, REPRESENTED BY ITS SECRETARY, PATHANAMTHITTA P.O., PIN-689654.** **3. THE KONNI MARKETING COOPERATIVE SOCIETY LTD.NO.Q 434, REPRESENTED BY ITS SECRETARY, KONNI P.O., PATHANAMTHITTA, PIN-689691.** **4. CHANDY M.V., MENAMPARAMPIL SPORTS NIVAS, AZHOOR, PATHANAMTHITTA, PIN-689645.** **R1 BY SENIOR GOVERNMENT PLEADER SRI.BIMAL K. NATH R4 BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-04-2018, THE COURT ON 21-05-2018 DELIVERED THE FOLLOWING:** **mbr/** **WP(C).No. 1183 of 2018 (W) -------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS: ----------------------** |**EXHIBIT P1**|**TRUE COPY OF THE JUDGMENT DATED 1.9.2003 IN**| |---|---| ||**C.C.216/2001 OF THE CHIEF JUDICIAL MAGISTRATE'S**| ||**COURT, PATHANAMTHITTA.**| |**EXHIBIT P2**|**TRUE COPY OF THE JUDGMENT DATED 15.1.2016 IN**| ||**CRL.R.P.NO.37/2006 OF THIS HONOURABLE COURT.**| |**EXHIBIT P3**|**TRUE COPY OF THE REPRESENTATION DATED 3.8.2016**| ||**SUBMITTED BY THE 4TH RESPONDENT BEFORE**| ||**1ST RESPONDENT.**| |**EXHIBIT P4**|**TRUE COPY OF THE JUDGMENT DATED 10.8.2017 IN**| ||**W.P.(C)12671/2017 OF THIS HONOURABLE COURT.**| |**EXHIBIT P5**|**TRUE COPY OF THE OBJECTION DATED 20.10.2017**| ||**SUBMITTED BY THE PETITIONER BEFORE THE**| ||**1ST RESPONDENT.**| |**EXHIBIT P6**|**TRUE COPY OF THE ORDER NO.C.P.(5) 40604/17**| ||**DATED 13.12.2017 PASSED BY THE 1ST RESPONDENT.**| |**RESPONDENTS'**|**EXHIBITS:**| |**---------------------**|| |**EXHIBIT R4A**|**TRUE COPY OF THE RECEIPT DATED 10.3.2016 ISSUED**| ||**FROM THE COURT OF CHIEF JUDICIAL MAGISTRATE,**| ||**PATHANAMTHITTA EVIDENCING DEPOSIT THE FINE AMOUNT**| ||**BY THE PETITIONER.**| ||**/TRUE COPY/**| ||**P.S.TO JUDGE**| **mbr/ 21.05.2018.** ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** **W.P.(C).No.1183 of 2018** **= = = = = = = = = = = = = = = Dated this the 21[st] day of May, 2018** ## **JUDGMENT** 1. This writ petition is filed challenging Exhibit P6 order of the 1[st] respondent declaring that the petitioner is disqualified to continue as member of the Managing Committee of the 2[nd] and 3[rd] respondent Societies. 2. Petitioner is a member of the Director Board and the Vice President of the 2[nd] respondent Society. He is also a member of the Director Board of the 3[rd] respondent Society. Based on an incident which occurred on 8.1.2001, the police had registered a case against the petitioner and he had been convicted for the commission of offence under Section 323 IPC. The de facto complainant in the case was the 4[th] respondent. He was a police officer. After the conviction of the petitioner was confirmed by this Court, he submitted a representation before the 1[st] respondent to disqualify the petitioner under Rule 44 of the Kerala Co-operative Societies Rules. The petitioner contended that his conviction did not attract disqualification as the offence did not involve moral W.P.(C).No.1183/18 2 delinquency. However, the 1[st] respondent, without appreciating the legal position in a proper manner overruled the contention of the petitioner and disqualified him by Exhibit P6 order. Challenging the same, this writ petition is filed. 3. Heard the learned counsel for the petitioner, the learned Senior Government Pleader and the learned counsel appearing for the 4[th] respondent. 4.The learned counsel for the petitioner contends that the offence in respect of which the petitioner was convicted by Exhibit P1 was only under Section 323 IPC read with Section 34. The petitioner was sentenced to pay a fine of Rs.1000/and in default to undergo simple imprisonment for 30 days. It is contended that the offence did not involve moral delinquency and the petitioner was not sentenced to any imprisonment and therefore the disqualification under Rule 44(1)(c)(ii) of the Kerala Co-operative Society Rules (hereinafter referred to as the “KCS Rules”) is not attracted in the instant case. It is stated that the petitioner's explanation W.P.(C).No.1183/18 3 in this regard was not considered by the 1[st] respondent while issuing Exhibit P6 order. The learned counsel for the petitioner relies on decision of the Andhra Pradesh High Court in **T.Bhagya Laxmi v. Returning Officer-cum-Municipal Commissioner, Mahaboobnagar and others** [AIR 2009 Andhra Pradesh 10] to contend that conviction for offences under Section 323 and 504 read with Section 34 IPC does not involve moral delinquency. It is stated that the said decision is authority on the point that it is not every punishable act that can be considered to be an offence involving moral turpitude. It was found by the Andhra Pradesh High Court that the petitioner who had been sentenced to pay a fine for offences not involving moral delinquency does not incur disqualification under the Andhra Pradesh Municipalities Act, the provisions of which are in pari materia with the language of Rule 44(1)(c)(ii) of the KCS Rules. 5. The learned counsel appearing for the 4[th] respondent, on the other hand, would rely on the decision of a Division Bench of this Court in **Joby George v. Thomas Varghese** [2012 (2) W.P.(C).No.1183/18 4 KLT 598] to contend that an offence under Section 323 IPC can also involve moral turpitude in given circumstances, since the concept of moral turpitude depends upon the conduct for which the offender stands convicted and sentenced. It is stated that the conviction of a member of the Panchayat who caused injuries to a resident of the Panchayat who asked for accounts in the Grama Sabha was held to be conduct involving moral turpitude. 6. It is contended that in the instant case, the petitioner was convicted for having caused injuries to the 4[th] respondent intentionally. It is stated that such conduct is not expected from a member of a committee of a co-operative society and that such conduct on the part of the petitioner thus amounts to one involving moral delinquency. The learned counsel would also rely on the decision of the Apex Court in **Sushil Kumar Singhal v. Punjab National Bank** [(2010) 8 SCC 573] to contend that the mere fact that the petitioner did not undergo imprisonment would not exonerate him from the consequences of having suffered conviction for an offence involving moral W.P.(C).No.1183/18 5 turpitude. It is contended that anything done contrary to justice, honesty, modesty or good morals would imply moral turpitude. It is, therefore, contended that the act of the petitioner would definitely be one involving one of moral turpitude and the order of the 1[st] respondent which considered the issue in extenso does not suffer from any infirmity. ## 7.I have considered the contentions advanced. Rule 44(1)(c)(ii) is couched in negative terms and reads as follows:- “ **44.Disqualification of membership of committee:-** (1) No member of the society shall be eligible for being selected, or appointed as a member of the committee of the society under S.28 if he xxx xxx xxx xxx (c)(i)xxx xxx xxx (ii) has been sentenced for any offence other than an offence of a political character or an offence not involving moral delinquency such sentence not having been reversed of offence pardoned and a period of three years has not elapsed from the date of expiration of the sentence.” ## 8.It is clear that the petitioner would incur the disqualification if he has been sentenced for any offence other than an offence of political character or an offence not involving moral delinquency. The initial contention of the petitioner that the W.P.(C).No.1183/18 6 disqualification would be attracted only if he actually underwent imprisonment cannot be accepted because a sentence of fine is also a sentence and no distinction can be drawn as suggested by the learned counsel for the petitioner. The only question remaining is with regard to whether the offence for which the petitioner was found guilty involves moral delinquency. - 9.The petitioner was charged with an attempt to snatch a gold chain from the 4[th] respondent and as also the offence of causing bodily hurt to him in furtherance of the common intention with two other persons. The petitioner, being a member of a committee of two cooperative societies is not expected to engage in brawls in public places and to inflict injuries on others even in the company of other people. However, the causing of physical hurt on another person without anything further having been proved against the petitioner cannot, by itself be said to be an offence involving moral delinquency. Though political motives have been sought to be attributed to the commission of the offence in question, W.P.(C).No.1183/18 7 there is nothing on record to prove any such intention on either side. 10.The offences charged against the petitioner under Sections 324, 394 and 341 IPC were found not proved. The only offence proved as per Exhibit P1 was under Section 323 IPC. The petitioner was sentenced only to pay fine of Rs.1000/-. The petitioner was initially convicted on 1.9.2003 and the conviction was confirmed by this Court on 15.1.2016 and the petitioner paid the fine on 10.3.2016. The 1[st] respondent, in Exhibit P6, has held that the conviction under Section 323 also involves moral delinquency in view of the fact that the petitioner is a person holding a responsible office. However, in view of the specific wording of Rule 44(1)(c)(ii) of the KCS Rules, I am of the opinion that the petitioner can be disqualified only if he is convicted of an offence which involves moral delinquency and if it is not of a political character. The offence proved against the petitioner being only one of having caused hurt to the 4[th] respondent in the company of two others and nothing further being discernible from the pleadings or W.P.(C).No.1183/18 8 from the records produced herein, I am of the opinion that the finding that the offence proved against the petitioner is one involving moral delinquency cannot be accepted. If the reasoning adopted in Ext.P5 order is accepted, the negative wordings used in Rule 44(1)(c)(ii) of the KCS Rules would be rendered otiose, since any offence would be liable to be characterised as one involving moral delinquency. A proper consideration of the question whether the offence involved moral delinquency is absent in the impugned order. The order is vitiated for want of application of mind and is therefore unsustainable. In the above view of the matter, the impugned order is set aside. The writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj