Board of Directors of Maranalloor KSHEERAVYAVASAYA Co-operative Society Ltd. v. D. Gopinathan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 24TH DAY OF SEPTEMBER 2014/2ND ASWINA, 1936** ## **WP(C).No. 4981 of 2014 (W)** **--------------------------------** **PETITIONER(S):** **-----------------------** **BOARD OF DIRECTORS OF MARANALLOOR KSHEERAVYAVASAYA CO-OPERATIVE SOCIETY LTD.NO.3994, MARANALLOOR, P.O.KOOVALASSERY, THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS PRESIDENT, N.BHASURANGAN.** **BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH SRI.N.J.MATHEWS** ## **RESPONDENT(S):** **-------------------------** **1. D.GOPINATHAN, S/O.LATE DASAN NADAR, AMRTHALAYAM, VELIYANKODE P.O., THIRUVANANTHAPURAM-695 001.** **2. ASSISTANT DIRECTOR/TECHNICAL ASSISTANT, DAIRY DEVELOPMENT DEPARTMENT, DISTRICT OFFICE, THIRUVANANTHAPURAM-695 001.** **3. DEPUTY DIRECTOR, OFFICE OF THE DEPUTY DIRECTOR OF DAIRY DEVELOPMENT, THIRUVANANTHAPURAM-695 001.** **4. PART TIME ADMINISTRATOR/NEMOM BLOCK KSHEERAVIKASANA OFFICER, KSHEERAVIKASANA OFFICE, NEMOM, TRIVANDRUM DISTRICT-695 020.** - **ADDL. R5 IMPLEADED.** ## *** 5. KARUNAKARAN NAIR ,** - **S/O.VELAYUDHAN NAIR, MANNADIKALIYAN VEEDU, VELIYAMKODE POST, THIRUVANANTHAPURAM -695 001. ADDL. R5 IS IMPLEADED AS PER ORDER DATED 04/07/2014 IN IA 8490/2014.** **R1 BY ADV. SRI.V.PHILIP MATHEW** **R2 & R3 BY SENIOR GOVERNMENT PLEADER SRI.BIJU MENATTOOR ADDL. R5 BY ADV. SRI.T.M.RAMAN KARTHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 4981 of 2014 (W)** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **EXT.P1: A TRUE PHOTOCOPY OF THE W.P.(C)12275/2010 JUDGMENT DATED 7/4/2010 OF THIS HON'BLE COURT.** - **EXT.P2: TRUE PHOTOCOPY OF THE ORDER DATED 30/6/2010 BEARING NO.B.1215/2010 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P3: A TRUE PHOTOSTAT COPY OF THE ENQUIRY REPORT DATED NIL SUBMITTED BY THE 2ND RESPONDENT.** - **EXT.P4(A) TO P(N): TRUE PHOTOCOPIES OF 14 REQUISITION REQUESTED TO RETURN THE WELFARE FUND AMOUNT SUBMITTED TO THE MANAGING DIRECTOR BY THE EMPLOYEES.** - **EXT.P5: A TRUE PHOTOSTAT OF THE NOTICE DATED 17/10/2011 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P6: A TRUE PHOTOSTAT COPY OF THE DETAILED EXPLANATION DATED NIL SECRETARY OF THE PETITIONER SOCIETY BEFORE THE 3RD RESPONDENT.** - **EXT.P7: A TRUE PHOTOSTAT COPY OF THE APPLICATION DATED 14/11/2011 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXT.P8: A TRUE PHOTOSTAT COPY OF THE MINUTES OF THE GENERAL BODY MEETING DATED 5/11/2009.** - **EXT.P9: A TRUE PHOTOSTAT COPY OF THE DECISION NO.9 OF THE COMMITTEE OF THE SOCIETY DATED 29/4/2010.** - **EXT.P10: A TRUE PHOTOSTAT COPY OF THE ORDER DATED 25/1/2012 IN W.P(C)32096/2011 OF THE COURT.** - **EXT.P11: A TRUE PHOTOSTAT COPY OF THE JUDGMENT IN WP(C)32096/2011 DATED 2/4/2012.** - **EXT.P12: A TRUE PHOTOSTAT COPY OF THE OBJECTION DATED 26/5/2012 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXT.P13: A TRUE PHOTOSTAT COPY OF THE ORDER DATED 15/10/2012 OF THE PETITIONER SOCIETY DISMISSING S.VIJAYAKUMARAN NAIR FROM THE SERVICE.** - **EXT.P14: A TRUE PHOTOSTAT COPY OF THE NOTICE DATED 18/10/2012 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P15: A TRUE PHOTOSTAT COPY OF THE BYE LAW PAGES 1 TO 3 OF THE PETITIONER SOCIETY.** - **EXT.P16: A TRUE PHOTOSTAT COPY OF THE APPOINTMENT ORDER DATED 9/6/2010 APPOINTING RAKESH AS MANAGING TRAINEE.** **Msv/** **-2-** **-2-** ## **WP(C).No. 4981 of 2014 (W)** ## **--------------------------------------** ## **EXT.P17: A TRUE PHOTOSTAT COPY OF THE RESIGNATION LETTER DATED 31/7/2011 SUBMITTED BY MANAGING TRAINEE RAKESH.** - **EXT.P18: A TRUE PHOTOSTAT COPY OF THE NOTICE DATED 10/1/2012 ISSUED BY THE PETITIONER SOCIETY TO RAKESH.** - **EXT.P19: A TRUE TYPED COPY OF THE CERTIFICATE DATED 15/2/2006 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P20: A TRUE PHOTOSTAT COPY OF THE PROCEEDINGS 18/4/2008 OF THE GENERAL MANAGER, INTEGRATED CO-OPERATIVE DEVELOPMENT PROJECT.** - **EXT.P21: A TRUE TYPED COPY OF THE PROCEEDINGS 22/5/2009 OF THE DIRECTOR OF DAIRY DEVELOPMENT DEPARTMENT,THIRUVANANTHAPURAM.** - **EXT.P22: A TRUE TYPED COPY OF THE ORDER DATED 22/1/2010 OF THE DIRECTOR OF DAIRY DEVELOPMENT DEPARTMENT, THIRUVANANTHAPURAM.** - **EXT.P23: A TRUE PHOTOSTAT COPY OF THE ORDER DATED 4/8/2012 OF THE 3RD RESPONDENT.** **EXT.P24: A TRUE PHOTOSTAT COPY OF THE CHEQUE DATED 10/08/2012.** - **EXT.P25: A TRUE PHOTOSTAT COPY OF THE JUDGMENT IN WP(C)25751/2012 DATED 20/01/2014.** - **EXT.P26: A TRUE PHOTOSTAT COPY OF THE APPLICATION DATED 12.02.2014 ALONG WITH MEDICAL CERTIFICATE.** - **EXT.P27: A TRUE PHOTOSTAT COPY OF THE ARGUMENT NOTE DATED 17/02/2014 SUBMITTED BY THE PETITIONER THROUGH COUNSEL BEFORE THE 3RD RESPONDENT.** - **EXT.P28: A TRUE PHOTOSTAT COPY OF THE NEWS ITEM PUBLISHED IN THE MALAYALA MANORAMA DAILY DATED 17/02/2014.** **EXT.P29: A TRUE PHOTOSTAT COPY OF THE COPY OF THE NEWS ITEM PUBLISHED IN THE MATHRUBHUMI DAILY DATED 17/02/2014.** - **EXT.P30: A TRUE PHOTOSTAT COPY OF THE ORDER DATED 14/02/2014 RECEIVED BY THE COUNSEL FOR THE PETITIONER FROM THE OFFICE OF THE 3RD RESPONDENT ON 18/02/2014 NOON.** - **EXT.P31: TRUE PHOTOCOPY OF THE MINUTES OF THE COMMITTEE MEETING OF THE SOCIETY FROM 17.2.2014 ONWARDS.** ## **RESPONDENT(S)' EXHIBITS ---------------------------------------** **EXT. R2(a): TRUE COPY OF THE RELEVANT PAGE OF THE AUDIT REPORT OF 2006-07.** **EXT. R2(b): TRUE COPY OF THE RELEVANT PAGE OF THE AUDIT REPORTS FOR THE YEAR 2007-08.** **msv/** **-3-** **-3-** ## **WP(C).No. 4981 of 2014 (W)** **--------------------------------------** **EXT. R2(c): TRUE COPY OF THE BYELAW CLAUSE 20.** **EXT. R2(d): TRUE COPY OF THE BYELAW CLAUSE 18.** **EXT. R2(e): TRUE COPY OF THE LETTER FROM THE BRANCH MANAGER, KANDALA SERVICE CO-OPERATIVE BANK LTD.NO.T.197.** **EXT. R2(f): TRUE COPY OF THE CHARGE REPORT OF THE 4TH RESPONDENT AS PART** **TIME ADMINISTRATOR ON 19.2.2014 AT 11.30 A.M.** **EXT. R2(g): TRUE COPY OF THE RECEIPT SIGNED BY THE MANAGING DIRECTOR OF THE SOCIETY AND THE ADVOCATE FOR THE PRESIDENT.** **EXT. R2(h): TRUE COPY OF THE RELEVANT PAGE OF THE AUDIT NEW MINUTES BOOK.** **/TRUE COPY/** ## **P.S. TO JUDGE** **msv/** ## **K. VINOD CHANDRAN, J** **- - - - - - - - - - - - -- - - - - - - - - - - - - - - -** ## **W.P(C)No.4981 of 2014** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of September, 2014** ## **J U D G M E N T** The petitioner is aggrieved with Ext.P30 order of supersession made under Section 32 of the Cooperative Societies Act, 1969. The learned counsel appearing for the petitioner puts forth only one contention regarding Ext.P30, ie, lack of consultation mandated under Section 32 before a supersession is ordered. On going through Ext.P30, it is clear that there is no consultation made in the aforesaid case before an order was passed under Section 32. 2. The learned counsel appearing for the 1[st] respondent, who was the complainant before the Joint Registrar, based on which initially enquiry was initiated under Section 65, appears and opposes the writ petition mainly on three grounds. Primarily the learned counsel submits that the petitioner has an alternate remedy, which W.P(C)4981/2014 : 2 : has not been invoked and hence this Court should decline jurisdiction. The learned counsel also placed before this Court a decision of the Hon'ble Supreme Court reported in **2013(4) KLT suppl. 27(SC)[Commissioner of Income Tax v. Chhabil Dass Agarwal]** . 3. The next contention is with respect to the dispensation under sub-section(3) of Section 33. The last contention urged is with respect to the conduct of the petitioner who has at every stage; when proceedings were issued, approached this Court under Article 226 and has simultaneously refrained from appearing before the statutory authority. 4. With respect to the first contention as to the alternate remedy, it is trite that when there is an illegality on the face of the order, necessarily this court could invoke its extra-ordinary power under Article 226. The decision placed before this Court afore cited would indicate that in the said case, there is an improper order passed by the Revenue authority, in which the Hon'ble Supreme Court found that alternate remedies are to be W.P(C)4981/2014 : 3 : invoked and not Article 226. The distinction is insofar as the present order impugned herein not being an improper order but is called in question as an illegal order for reason of not satisfying the mandatory dictate of the statute under Section 32. ## 5. **Chhabil Das Agarwal** (supra) declared so in Paragraph 19: “Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case[AIR 1964 SC 1419, Titaghur Paper Mills case [(1983) 2 SCC 433] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative W.P(C)4981/2014 : 4 : remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.” 6. With respect to the consultation mandated under Section 32, this Court has declared the position in ( **2013(2)KLT 74) State of Kerala v. Urukunnu Service Co-operative Bank Ltd** ., ( **2013(3)KLT 253) Rajeevan v. Sukumaran.** The Hon'ble Supreme Court too, in **(2013(2) KLT 733) State of Madhya Pradesh v. Sajay Nagayach** , emphasised the mandatory nature of the consultation under Section 32. Hence, the illegality being evidenced from a mere reading of the order; it would definitely inspire this Court to invoke the extraordinary jurisdiction under Article 226. Hence, the contention with respect to alternate remedy will have to be answered against the 1[st] respondent as the order is W.P(C)4981/2014 : 5 : vitiated for reason of the statutory authority having not acted in accordance with the provisions of the enactment. 7. Despite the fact that this Court has found that it is an illegal order, this Court would venture to decide upon the two alternate contentions raised by the 1[st] respondent. Sub-section (3) of Section 32 specifically stipulates that in cases where the Registrar is of the opinion that it is not reasonably practicable to do so, the consultation could be avoided. But, such opinion should be evident from the order. None can deem a lack of consultation to be one arrived at only on the basis of the presumed opinion of the Registrar. If there is no consultation, the order should at least indicate the reasons for not having complied with such essential condition. Ext.P30 order impugned, does not speak of any such opinion having been arrived at by the authority. 8. With respect to the conduct of the petitioner, it cannot be said that the petitioners' invocation of extraordinary remedy under Article 226 at every stage disentitles the petitioner from maintaining W.P(C)4981/2014 : 6 : the above writ petition on the ground of statutory non-compliance. If the petitioner did not avail of the opportunity for hearing, this Court would not have considered granting of further opportunity, but, that would be irrelevant, in the circumstance of the illegality evident from Ext.P30. This Court is not concerned with the question of violation of principles of natural justice and the crucial issue to be decided is the deviation from the essential mandate prescribed under Section 32. Hence the challenge raised, against the maintainability of the writ petition, on all the grounds, has to be found against the 1[st] respondent. The writ petition stands allowed, setting aside Ext.P3, however, reserving liberty to the Department to proceed further, in accordance with law and definitely after affording opportunity for hearing. Sd/- ## **(K. VINOD CHANDRAN, JUDGE)** jma //true copy// P.A to Judge