Cherukole Service Co-operative Bank Ltd. v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931** **OP.No. 32632 of 2001(I)** - **-----------------------** ## **PETITIONERS:** **-----------------** **1. CHERUKOLE SERVICE CO-OPERATIVE BANK LTD.No.Q488, REPRESENTED BY ITS SECRETARY, CHERUKOLE P.O., KOZHENCHERRY.** **2. THE PRESIDENT, CHERUKOLE SERVICE CO-OPERTAIVE BANK LTD.NO.Q 488** **BY MR.MVS.NAMBOOTHIR, ADVOCATE MR.S.SANTOSH KUMAR (PERUNAD), ADVOCATE SMT.RAINA M.CHERIAN, ADVOCATE** ## **RESPONDENTS/RESPONDENTS:** **-------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATIVE SOCIETIES, TRIVANDRUM.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANATHAPURAM.** **3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIEITES, PATHANAMTHITTA.** **4. T.K.MURALEEDHARAN NAIR, THULAKKANTE AYYATHU VEEDU, KATTOOR, CHERUKOLE.P.O., PATHANAMTHITTA.** - **BY MR.DILIP MOHAN,GOVERNMENT PLEADER MR.V.G.ARUN, ADVOCATE FOR R4 MR.T.R.HARIKUMAR, ADVOCATE FOR R4** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.No.32632/2001 2** ## **C.M.P.NO.53132/2001 IN O.P.NO.32632/2001** **CLOSED.** **Sd/-** **S.SIRI JAGAN, JUDGE 12.01.2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE PROCEEDINGS NO.CRP(1) 1005/96 DT.30.7.97 ISSUED BY THE 3RD RESPONDENT.** **EXT.P2: COPY OF THE JUDGMENT DATED 24.07.2001 IN O.P.No.21670/01.** **EXT.P3: COPY OF THE PROCEEDINGS No.CRP(1) 2611/2000 DT.25.07.2001 ISSUED BY THE 3RD RESPONDENT.** **EXT.P4: COPY OF THE MEMORANDUM OF APPEAL DT.28.8.2001 FILED BEFORE THE 1ST RESPONDENT BY THE PETITIONER.** ## **EXT.P5: COPY OF THE RESOLUTION DT.27.8.2001.** **EXT.P6: COPY OF THE LETER DT.13.9.2001 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER.** - **EXT.P7: COPY OF THE RESOLUTION ALONG WITH THE COVERING LETTER DT.27.9.2001 ISSUED BY THE 2ND PETITIONER.** **EXT.P8: COPY OF THE LETTER DT.9.10.2001 ISSUED BY THE 3RD RESPONDENT.** **EXT.P9: COPY OF THE APPLICATION ALONG WITH THE AFFIDAVIT DT.22.10.2001 FILED BEFORE THE 1ST RESPONDENT.** **EXT.P10: COPY OF G.O.(RT)No.657/2003/CO-OP. DT.10.11.2003** ## **RESPONDENT'S EXHIBITS:** **EXT.R4(a): COPY OF THE PROCEEDINGS DATED 28.07.1990.** - **EXT.R4(b): COPY OF THE RE-PUBLICATION FILED BY THE RESPONDENT DATED NIL.** - **EXT.R4(c): COPY OF THE STATEMENT OF OBJECTION FILED IN APPEAL No.7239/C1/2001/CO-OP DATED 1.11.2002.** ## **TRUE COPY** **P.A.TO JUDGE** S.SIRI JAGAN,J ========================= O.P.No.32632 of 2001 ========================= Dated this the 12[th] day of January, 2010 ## JUDGMENT The petitioners are the Secretary and President of the Cherukole Service Co-operative Bank Ltd. No.Q488. Disciplinary proceedings were initiated against the 4[th] respondent, for misappropriation of money which was brought to light in statutory audit. After complying with the procedure prescribed under the Kerala Co-operative Societies Rules, a sub committee of the society adopted a resolution to dismiss the 4[th] respondent from service for misappropriation of money belonging to the society. The appeal filed by the 4[th] respondent was dismissed by the managing committee by another resolution. The 4[th] respondent filed a petition dated 28.2.1996 before the 3[rd] respondent invoking his jurisdiction under Rule 176 of the Kerala Co-Operative Societies Rules, for rescinding the said resolutions. By Ext.P1 order dated 30.7.1997, the 3[rd] respondent found nothing illegal or irregular in the resolutions adopted by the management dismissing the petitioner from service and the petition filed by the 4[th] respondent was dismissed. After three O.P.No.32632/2001 2 long years, on 30.06.2000, the 4[th] respondent filed another petition under Rule 176 of the Kerala Co-operative Societies Rules to rescind the very same resolutions. Despite the objections raised by the society regarding the jurisdiction of the Joint Registrar to entertain a second application for the same cause of action, the 3[rd] respondent entertained that petition and passed Ext.P3 order rescinding the resolutions, leaving liberty to the society “to adopt fresh legitimate measures to cure the infraction pointed out in the order.” Although, the society challenged that order before this Court, this Court relegated the society to the remedy by way of appeal before the Government under Section 83(1) (J) of the Kerala Co-operative Societies Act. Pursuant to that, an appeal was filed by the society, which was dismissed by Ext.P10 order by the Government. The petitioners are challenging Exts.P3 and P10 orders in this original petition. 2. Petitioners are challenging Ext.P3 order both for want of jurisdiction as well as on merits. They would contend that after passing Ext.P1 order finding nothing illegal in the resolutions, by the Joint Registrar could not have again entertained another petition for the same purpose and pass a O.P.No.32632/2001 3 contrary order as done by Ext.P3. They would contend that since Ext.P1 order has not been challenged before the appropriate forum within the prescribed time limit that order has become final and the 4[th] respondent as well as the 3[rd] respondent is bound by it. In support of this contention, the counsel for the petitioners relies on the decision of the Full Bench of this Court in **Pavithran v. State of Kerala [2009 (4) KLT 20 (F.B)]** . They would also contend that Ext.P3 order amounts to a review of Ext.P1 order. The Joint Registrar does not have power to review his own decision under Rule 176 since no such power of review is conferred by the statute. In support of this contention they rely on the decision of the Supreme Court in **Dr.(Smt.)** **Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and others [1987 (4) SCC (525).** Apart from the same they would also contend that since the disciplinary proceedings were perfectly in accordance with the provisions of the Kerala Co-operative Societies Rules, the Joint Registrar could not have invoked the jurisdiction under Rule 176(2) to interfere with the resolutions imposing punishment on the 4[th] respondent and dismissing his appeal O.P.No.32632/2001 4 against that punishment. 3. A counter affidavit has been filed by the 4[th] respondent supporting the impugned orders. Neither the Government nor the Joint Registrar has chosen to file any counter affidavit. 4. I have considered the rival contentions in detail. I am of opinion that the Joint Registrar should have dismissed the second application filed by the 4[th] respondent merely on the ground of delay and laches. Ext.P1 was passed on 30.07.1997. The 4[th] respondent filed the second application only on 30.06.2000 almost three years after the passing of Ext.P1 order. The 4[th] respondent had no explanation to offer for the long delay of three years in filing the second application. As such, the 4[th] respondent was in any event guilty of delay and laches and on that ground alone the application should have been dismissed at the threshold itself. Secondly, Ext.P1 is certainly a quasi judicial order under Rule 176 of the Kerala Co-operative Societies Rules and the finding to the contrary in Ext.P10 is clearly unsustainable. As such, even if the same was wrong, the 3[rd] respondent could not have reviewed it on another application O.P.No.32632/2001 5 filed by the 4[th] respondent, in so far as the Kerala Co-operative Societies Act and Rules do not confer any power on the 3[rd] respondent to review his own order. For that reason also the second application filed by the 4[th] respondent ought to have been dismissed straight away. In this connection, I find that the reliance of the petitioners on the Full Bench decision in **Pavithran's Case (supra)** is well founded. In that decision the Full Bench has held that whenever an adverse order is passed against a person, unless it is challenged before the appropriate forum within the prescribed time limit the said order becomes final and the person affected by it will be bound by it. That decision clearly applies to the facts of this case on all fours. Ext.P1 order has been passed on 30.07.1997 in a petition filed by the 4[th] respondent, against him. He had not chosen to challenge the same within the time limit prescribed under the Kerala Cooperative Societies Act for filing an appeal against that order. Therefore, that order has become final and the 4[th] respondent could not have under law filed another petition for the relief which was rejected by Ext.P1. O.P.No.32632/2001 6 5. Even otherwise, in so far as, the society had given adequate opportunity to the 4[th] respondent as provided under Rule 198(2), the Joint Registrar could not have invoked the powers under Rule 176 of the Kerala Co-operative Societies Rules. The power under Rule176 could have been invoked only for isolation of the provisions of the Act and Rules and not on merits of the action taken by the society. The 3[rd] respondent should have relegated the 4[th] respondent to the remedy by way of challenging the dismissal either in an Industrial dispute, if the 4[th] respondent was a workman or by resorting to other remedies available to the 4[th] respondent under law. For all the above reasons Exts.P3 and P10 are unsustainable. Accordingly, the same are quashed. The original petition is allowed as above. S.SIRI JAGAN, JUDGE dvs