Chenkal Service Co-Operative Bank Ltd. v. Joint Registrar of Co-Operative Societies (General), Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 11TH DAY OF APRIL 2018 / 21ST CHAITHRA, 1940 WP(C).No. 724 of 2018 ## PETITIONER THE CHENKAL SERVICE CO-OPERATIVE BANK LTD. NO.1258 CHENKAL P.O., NEYYATTINKARA, THIRUVANANTHAPURAM, REPRESENTED BY ITS PRESIDENT. BY ADVS.SRI.B.S.SWATHY KUMAR SMT.ANITHA RAVINDRAN SMT.T.RESHMA SMT.S.SIKKY SRI.HARISANKAR N UNNI ## RESPONDENT(S): 1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) THIRUVANANTHAPURAM, PIN - 695 001. ADDL.R2 N.P.RENJITH RAO, ADVOCATE, PADIPURAVILAKAM VEEDU, VATTAVILA PO NEYYATINKARA, THRIVUVANATHAPURAM. ADDL.R2 BY ADV. SRI.P.N.MOHANAN R1 BY GOVERNMENT PLEADER SMT.MABLE C KURIAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WP(C).No. 724 of 2018 (M) ## APPENDIX ## PETITIONER'S EXHIBITS EXHIBIT P1. TRUE COPY OF THE CRP(1) 7073/15/K.DIS DATED 02.08.2015 OF THE 1ST RESPONDENT. EXHIBIT P2. TRUE COPY OF THE STAFF PATTERN OF THE PETITIONER'S SOCIETY. EXHIBIT P3. TRUE COPY OF THE PAPER PUBLICATION IN MADHYAM DAILY DATED 10.05.2017. EXHIBIT P4. TRUE COPY OF THE ORDER NO.CRP(1)4786/2017 DATED 26.05.2017. EXHIBIT P5. TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT DATED 31.08.2017. EXHIBIT P6. TRUE COPY OF THE NOTICE NO.CRP(1)/4786/2017 DATED 17.08.2017. EXHIBIT P7. TRUE COPY OF THE ORDER NO.CRP(1)4786/17/K.DIS DATED 31.08.2017. EXHIBIT P8. TRUE COPY OF THE ORDER NO.W.P.(C)NO.27836/2017 DATED 16.11.2017. EXHIBIT P9 TRUE COPY OF THE LETTER DATED 31.1.2018 TO THE SECRETARY OF THE PETITIONER. - EXHIBIT P10 TRUE COPY OF THE RANK LIST FOR THE POST OF SALESMAN (GENERAL) DATED 31.1.2018. - EXHIBIT P11 TRUE COPY OF THE RANK LIST FOR THE POST OF SALESMAN (SC) DATED 31.1.2018. EXHIBIT P12: TRUE COPY OF THE RANK LIST FOR THE POST OF PEON DATED 31.1.2018. ## RESPONDENTS' EXHIBITS ANNEXURE R1(A): TRUE COPY OF THE STATEMENTS MADE BY THE SECRETARY. /TRUE COPY/ PS TO JUDGE ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** **W.P.(C) No.724 of 2018 = = = = = = = = = = = = = = = Dated this the 11th day of April, 2018** ## **JUDGMENT** ## 1.This writ petition is filed with the following prayers:- “(i)issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P7 and quash the same (ii)to issue a writ of mandamus or any other appropriate writ, order or direction commanding and compelling the respondent to allow the petitioner to proceed with the selection and make appointments to the post notified in Ext.P3.” - 2.Heard learned counsel for the petitioner, the learned Government Pleader and learned counsel for the 2[nd] respondent. - 3.It is contended by the learned counsel for the petitioner that the sanctioned staff strength of the Society is 44 posts and that there were three posts of Peon, three posts of Salesman and five posts of Part Time Sweeper available by Ext.P1. It is stated that since the actual number of employees is less than the sanctioned strength it was found necessary for the W.P.(C) No.724/18 2 petitioner Society to fill up the vacancies for the proper day to day functioning of the Society. Ext.P3 notification was therefore issued notifying two posts of salesman of which one is reserved for SC/ST and one post of peon and one post of Part Time Sweeper respectively. 4.It is stated that by Ext.P4 dated 26.5.2017 there was a direction by the Joint Registrar of Co-operative Societies to keep in abeyance the proceedings for filling up of the posts. The reference in Ext.P4 was to a complaint preferred by the 2[nd] respondent on 25.5.2017 and a direction of this Court in W.P.(C).No.15106/2017. It is stated that thereafter, the petitioner had submitted Exhibit P5 reply and was called for a hearing by Ext.P6. Ext.P7 order was issued on 31.8.2017. It is stated in Ext.P7 that the 2[nd] respondent had submitted a complaint and another person had obtained a judgment for consideration of the complaints regarding the selection. It is further stated that notice for conduct of Section 65 enquiry had been issued to the society and that there were W.P.(C) No.724/18 3 irregularities and corruption prevalent in the Society and therefore the steps taking for filling up the posts shall not be proceeded with. - 5.The learned counsel for the petitioner contends that the Section 65 enquiry ordered against the society stands interdicted by this Court by Ext.P8 interim order in W.P. (C).No.27836/2017 and that the said interim order is still in force. It is contended that there is absolutely no material to hold that there are irregularities or corruption involved and that the society is well within its powers in seeking to fill up the existing vacancies in accordance with law. It is further contended that no copies of the alleged complaints had been made available and the petitioner was in the dark as to the allegations made therein. - 6.It is stated that no reason has been stated in support of the finding that there was illegality in the functioning of the society and the same cannot be a ground for interdicting filling W.P.(C) No.724/18 4 up of sanctioned posts in the society. It is further stated by the learned counsel that pursuant to the interim order issued by this Court, the selection had been continued and conducted and that a list of successful candidates has also been made available by a retired Joint Registrar of the Co-operative Societies who was entrusted to carry out the selection procedure. It is stated that further steps for filling up of posts should be permitted to be carried out. 7.A counter affidavit has been filed by the 1[st] respondent. It is stated that notification had been invited for appointment to the post by publication in Deepika and Madhyaman dailies. It is stated that the said dailies have limited circulation in the area and therefore the publication was not in accordance with the provisions of circular No.11/1999. It is further stated that by circular No.11/1999 the Registrar had directed that notification should contain the scale of pay of the posts to be filled up. Since the scale of pay was not shown in Ext.P3 notification, it is stated that the notification was illegal and W.P.(C) No.724/18 5 unsustainable. It is stated that a complaint had been preferred by the additional 2[nd] respondent stating that the Bank had decided to fill up the four posts by appointing specified persons and that this Court by judgment in W.P. (C).No.15106/2017 had directed the consideration of the complaint made by V.K.Sreekumar, an 'A' class member into the irregularities in the functioning of the Society. It is stated that preliminary enquiry had been conducted on the basis of the complaints received and several irregularities had been noticed. It is therefore stated that Section 65 enquiry was ordered into the working of the society and the posts cannot be filled up till the enquiry is completed. - 8.I have considered the contentions advanced. The learned counsel for the petitioner would rely on the decision of a Division Bench of this Court in N.Gouthaman v.Joint Registrar and others [ 1998 (1) KLT 275] wherein it has been held as follows:- W.P.(C) No.724/18 6 “The Co-operative Society functions as an autonomous body and it has got its own freedom of activities, of course within and subject to limitation of the Act, Rules, bye-laws and directions of the Registrar. So long as the society acts within its jurisdiction in conformity with the provisions of the Act, Rules bye-laws and the general directions by the Registrar, it can enjoy and autonomy and can claim freedom from interference. But however, if the society violates the provisions of the Act, Rules, bye-laws or the directions of the Registrar the society will be subject to the supervisory control of the authorities under the Act and the Registrar can issue suitable and appropriate orders by virtue of powers conferred under S. 66(l)(a) of the Act The committee cannot act against the interest of the society with immunity and if the actions are prejudicial to the interests of the society, the Registrar has the powers to curb and curtail their freedom.” ## 9.It was also held as follows:- “In these circumstances, we are of the considered opinion that the society is well within its powers to proceed with the process of appointment of secretary and attender which are statutorily sanctioned posts as already referred to. Filling up of such vacancies can only be considered as an act in the nature of day-today administration/internal administration of the society and there may not be any reason for the respondents to interfere in this process.” W.P.(C) No.724/18 7 10.The learned Government Pleader relies on the decision of this Court in **Kurian v. Joint Registrar** [1990 (1) KLT 618] and **Trivandrum District Co-operative Bank Ltd.v. State of** **Kerala** [1992 (1) KLT 381] to contend that the circular in question issued by the Registrar with regard to appointment should be scrupulously followed by individual societies and in case it is found that such directions are not followed, the Joint Registrar will be well in his powers in interdicting the appointments. - 11.It is not in dispute before me that the appointments have been sought to be made by the Society against sanctioned posts and in existing vacancies. The contentions in the order impugned in this writ petition are only to the effect that there are irregularities and corruption in the functioning of the society. No materials have been produced to show that the respondent had any reason to come to a conclusion that such irregularities are of such a nature that the interdiction of filling up of vacancies is required in the matter. The enquiry ordered under Section 65 of W.P.(C) No.724/18 8 the KCS Act, 1969 on the basis of preliminary enquiry has also been stayed by this Court. The contents of the complaint preferred by the additional 2[nd] respondent is also not before this Court and it is stated that contents of the complaints have not been made available to the society as well. 12.In the facts and circumstances of the instant case and in view of the findings contained in Exhibit P7, I am of the opinion that this is not a fit case where the society can be interdicted from making any appointments. No grounds have been made out for interference into the day-to-day administration of the society. I am of the opinion that Exhibit P7 cannot be sustained on the reasons stated therein. Ext.P7 order is therefore set aside. The petitioner shall be permitted to make appointments in accordance with the selection conducted by it. The writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj