K.K. Abraham and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942** ## **WP(C).No.13032 OF 2020(D)** ## **PETITIONERS:** |**1**|**K.K.ABRAHAM,**| |---|---| ||**AGED 58 YEARS,**| ||**S/O.(LATE)KURIAKOSE, KUZHUMBIL HOUSE,**| ||**PULPALLY P.O., WAYANAD DISTRICT-673579.**| |**2**|**KURIAN T.S.,**| ||**AGED 58 YEARS,**| ||**S/O.SEBASTIAN, THEKKUMALAYIL PADICHIRA VILLAGE,**| ||**AMARAKKURI P.O., ADIKOLY, PULPALLY,**| ||**WAYANAD DISTRICT-673579.**| |**3**|**JANARDHANAN PAMBANAL @ MANI PAMPANAL,**| ||**AGED 48 YEARS,**| ||**S/O.RAJAPPAN, PAMBANAL, PADICHIRA VILLAGE,**| ||**SASIMALA P.O., PULPALLY, WAYANAD DISTRICT-673579.**| |**4**|**BINDHU CHANDRAN,**| ||**AGED 44 YEARS,**| ||**W/O.CHANDRAN, KOOR MULLANIYIL HOUSE,**| ||**KALANADIKOLLY P.O., KALLUVAYAL, PULPALLY,**| ||**WAYANAD DISTRICT-673579.**| |**5**|**V.M.POULOSE,**| ||**AGED 55 YEARS,**| ||**S/O.MATHAI, VELLILAMTHADATHIL, ALOORKUNNU,**| ||**BHOODANAM COLONY P.O., PULPALLY,**| ||**WAYANAD DISTRICT-673579.**| |**6**|**C.V.VELAYUDHAN,**| ||**AGED 60 YEARS,**| ||**S/O.KANNAMCHETTY, CHERIYA VEDANKOTTU HOUSE,**| ||**PULPALLY, WAYANAD DISTRICT-673579.**| - **7 SUJATHA DILEEP, AGED 54 YEARS, W/O.DILEEPKUMAR, PAYATTUKALAYIL HOUSE, NADAVAYAL VILLAGE, VELIYAMBAM P.O., PULPALLY, WAYANAD DISTRICT-673579.** **WP(C).No.13032 OF 2020** **2** **BY ADVS. SRI.P.A.MOHAMMED SHAH SRI.K.ARJUN VENUGOPAL SHRI.MUHAMMED JANAISE V. SHRI.ASWIN KUMAR M J SHRI.MOHAMED MUSTHAFA A.K. SMT.HELEN P.A.** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, O/O. REGISTRAR OF THE CO-OPERATIVE SOCIETIES, VAZHUTHACAUD, THIRUVANANTHAPURAM-695014.** - **3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),** - **O/O. JOINT REGISTRAR OF THE CO-OPERATIVE SOCIETIES, KALPETTA P.O., WAYANAD DISTRICT-673122.** - **4 E.K.PREMJITH, ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (PLANNING), ENQUIRY OFFICER, KALPETTA NORTH P.O., WAYANAD DISTRICT-673122.** - **5 ABDUL RASHEED THIDUMMEL, ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (SC/ST), ENQUIRY OFFICER, KALPETTA NORTH P.O., WAYANAD DISTRICT-673122.** - **6 THE PULPALLY SERVICE CO-OPERATIVE BANK LTD.NO.10153,** - **PULPALLY P.O., WAYANAD DISTRICT-673579, REPRESENTED BY ITS SECRETARY.** **R1-R3 BY GOVERNMENT PLEADER SMT. MABLE C KURIAN R6 BY ADV. SRI.JACKSON JOHNY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.13032 OF 2020** **3** ## **JUDGMENT** The petitioners herein were the elected members of the managing committee of the Pulpally Service Co-operative Bank, the 6th respondent herein, a Society registered under the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as ‘the Act’). Their prayer in this writ petition is to declare that Ext.P23 report submitted by the 5th respondent under Section 68(1) of the Act and Ext.P31 consequent order passed by 3rd respondent under Section 68(2) of the Act are not legally sustainable for violation of the principles of natural justice. 2. The chronology of events as narrated in the writ petition would reveal that an inquiry under Section 65 was ordered into the constitution, working and financial condition of the 6th respondent society. According to the petitioners, the ordering of the inquiry is politically motivated and was initiated due to pressure exerted by certain leaders owing allegiance to the political party ruling the State. The ordering of the inquiry was challenged before this Court and by Ext.P6 judgment, this Court permitted the inquiry to proceed with a rider that the petitioners would be at liberty to file necessary objection and contest the proceedings. **WP(C).No.13032 OF 2020** **4** 3. On 17.7.2018, the report of inquiry under Section 65 of the Act was submitted by the 4th respondent. On its basis, the 3rd respondent issued notice to the petitioners under Rule 66(5) of the Co-operative Societies Rules. The petitioners submitted Ext.P7 reply and thereafter approached this Court and filed W.P.(C) No.34695 of 2018 challenging the inquiry report as well as the notices. By Ext.P9 judgment, this Court dismissed the writ petition holding that the petitioners failed to make out a case warranting interference of the proceedings pending before the Joint Registrar. The Joint Registrar was directed to consider Ext.P13 explanation offered by the President and Secretary and take appropriate decisions. The matter was taken in appeal and by Ext.P10 judgment, their Lordships of the Division Bench refused to quash the notice but held that it would be open to the petitioners to urge their contentions before the authority at the time of hearing. 4. Pursuant to the same, an order was passed under Section 68(1) of the Act on 8.11.2018 based on the conclusions arrived at by the Inquiry officer under Section 65 of the Act. Simultaneously, proceedings under Section 32(1) of the Act was also initiated to supersede the committee. The order passed by the Joint Registrar initiating proceedings for surcharge and also the supersession of the committee were challenged **WP(C).No.13032 OF 2020** **5** before this Court by the petitioners by preferring W.P.(C) No.42076 of 2018. By Ext.P15 judgment dated 14.2.2019 , this Court, taking note of the pendency of the statutory appeal preferred by the petitioners against the order of supersession, closed the writ petition leaving it open to the right of the petitioners to prosecute the appeal. 5. On conclusion of the inquiry ordered to assess the surcharge, the 4th respondent submitted a report under Section 68(1) on 30.8.2019 and based on the same, the 3rd respondent issued Ext.P16 order under Section 68(2) of the Act calling upon the petitioners herein to repay and restore the money. To the said report, Ext.P17 objection was filed on 7.1.2020 by the petitioners herein asserting that the order of surcharge passed against them was unsustainable. 6. The petitioners then approached this Court and filed W.P.(C) No.584/2020 challenging the notice issued under Section 68(2) of the Act. This Court taking note of the fact that the petitioners have already filed their objections, disposed of the writ petition directing the Joint Registrar to consider the objection submitted by the petitioners and thereafter pass final orders in terms of Section 68(2) of the Act. It is further ordered that the order to be passed by the Joint Registrar shall also advert to the objections of the petitioners on the various aspects raised in their **WP(C).No.13032 OF 2020** **6** objections and give reasons for the decision. 7. In tune with the directions issued by this Court, the 3rd respondent considered the objections and took the view that the inquiry report submitted by the 4th respondent cannot be sustained. By Ext.P20 order dated 6.3.2020, the report was set aside and the 5th respondent herein was appointed as inquiry officer to conduct an inquiry under Section 68(1) afresh. 8. The 5th respondent then issued Ext.P21 notice to the petitioners under Section 68(1) of the Act and they were called upon to appear before the inquiry officer on 23.3.2020. 9. According to the petitioners, by this time, the Government of Kerala had declared high alert from 8.3.2020 due to high incidence of Coronavirus being reported from the State. The schools and colleges were shut down from 10.3.2020 and the people were requested to isolate themselves and remain safe. On 22.3.2020, dire warnings were issued to the people of the State and they were asked to follow the orders from the Health Department of the State. The people all over the country and the world were in a serious state of panic and were cloistering themselves inside their homes. **WP(C).No.13032 OF 2020** **7** 10. On being called upon to appear on 23.3.2020, the petitioners submitted Ext.P22 representation before the 5th respondent stating all these aspects. They requested that the hearing be postponed at least till the health emergency is lifted and the Government allows free movement of the parties. 11. On 22.3.2020, the Chief Minister announced a Statewide lockdown from 23.3.2020 to 31.3.2020 to prevent the further spread of Coronavirus. 12. On 24.3.2020, the Central Government declared an all India lockdown and the same was extended from time to time till 30.6.2020. 13. On receipt of Ext.P22, the 5th respondent decided to grant the petitioners one more adjournment and the hearing was posted on 30.4.2020. Since the petitioners failed to appear on 30.4.2020, he decided to proceed ex parte and passed Ext.P23 order on 15.5.2020. According to the petitioners, a full lockdown was in place on 30.4.2020 and most of them being persons aged over 50 years could not have risked their health and invite prosecution proceedings by appearing before the 5th respondent. 14. Stating all these reasons, the petitioners herein submitted **WP(C).No.13032 OF 2020** **8** Ext.P24 representation before the 3rd respondent. 15. However, the 3rd respondent issued notice under Section 68(2) of the Act calling upon the petitioners herein to appear on 27.5.2020 and furnish their objections to the report. On receipt of the said communication, they issued Exts.P27 and P28 representations before the inquiry officer as well as the Joint Registrar pointing out that sufficient opportunity was not granted as directed by this Court and they were prevented from appearing due to the promulgation of an order under Section 144 and due to the lockdown imposed. They also submitted a representation before the District Collector seeking initiation of action. They also submitted a request through their advocate before the 3rd respondent to adjourn the proceedings of the hearing under Section 68(2) of the Act. However, the 3rd respondent proceeded to issue Ext.P31 order fixing the liability on the petitioners. The above order is under challenge. 16. I have heard Sri. P.A.Mohammed Shah, the learned counsel appearing for the petitioners and Smt.Mable C. Kurian, the learned Government Pleader and Sri. Jackson Johny, the learned counsel appearing for the 6th respondent. I have anxiously considered the submissions. 17. The only point raised by the learned counsel appearing for the **WP(C).No.13032 OF 2020** **9** petitioners is that despite orders by this Court that the petitioners are to be heard before finalizing the proceedings under Section 68 and though the statute also mandates that an opportunity has to be granted to the person concerned, the respondents 3 and 5 have proceeded with the matter without offering such an opportunity. 18. The records reveal that the report under Section 68(1) submitted by the 4th respondent was set aside by the Joint Registrar by Ext.P20 order which is dated 6.3.2020. A fresh inquiry was ordered which was to be conducted by the 5th respondent. Ext.P21 is the notice issued by the 5th respondent calling upon the petitioners to appear on 23.3.2020. It was on 22.3.2020 that a lockdown was imposed in the State. On 24.3.2020, the Central Government imposed lockdown and it continued till 30.6.2020. Most of the petitioners are aged over 50 years and it is apparent that they were called upon to appear first on 23.3.2020 and thereafter on 30.4.2020 by the 5th respondent. This was the period during which the lockdown was in full force. The request of the petitioners to adjourn the hearing to enable them to substantiate their contentions was not considered in the proper perspective by the 5th respondent. The report was submitted before the 3rd respondent who directed the petitioners to appear before him on 03.06.2020. Since the lockdown was **WP(C).No.13032 OF 2020** **10** in force the petitioners sought an adjournment. However, the said request was rejected and the proceedings were finalised. This was despite the endorsement made by the District Collector in Ext.P29 that action be deferred due to the restrictions imposed due to the pandemic. 19. Smt.Mable C. Kurian, the learned Government Pleader, in view of the judgment of this Court in **Santhosh V v. Assistant Registrar (General), Co-operative Societies, Tvm and Ors.** [2014 (4) KLJ 397] submitted that a person against whom an enquiry has been ordered under Section 68(1) of the Act need not be heard before issuing an order to conduct an enquiry. However, I find that the 5th respondent while issuing Ext.P21 notice had called upon the petitioners to appear before the said authority to furnish their objection. In that view of the matter, it will be idle at this stage to contend that no such opportunity was contemplated. 20. Adherence to the principles of natural justice is of paramount importance. The Statute mandates that when an enquiry is being made under sub-section (1) of the Act, the Registrar is required to give the person concerned an opportunity of being heard before calling upon him to repay or restore the money. The opportunity so granted must be effective and not a contrived one. The object underlying the opportunity of granting a hearing is to enable a person to deny or controvert the allegations made **WP(C).No.13032 OF 2020** **11** and to put forward his case in support of his defense. It is a very valuable right and if denied, can cause serious prejudice. In the case on hand, there cannot be any dispute that the petitioners were called upon to appear when the lockdown was imposed due to the COVID 19 pandemic and was in full force. I am satisfied that the opportunity granted to the petitioners was ineffective and merely a sham and in that view of the matter, interference is warranted. 21. Ext.P23 will stand quashed and consequently Exhibit P31 will also stand quashed. The 5th respondent is directed to issue a fresh notice to the petitioners and conclude the proceedings after granting them an opportunity of being heard within a period of 8 weeks from today. The report shall be submitted before the 3rd respondent who shall proceed to pass appropriate orders in accordance with Section 68(2) of the Act within a further period of six weeks. This writ petition is disposed of. ## **SD/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** ps **WP(C).No.13032 OF 2020** **12** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE BY-LAW OF THE SOCIETY DATED NIL.** - **EXHIBIT P2 THE TRUE COPY OF THE ORDER APPROVING THE BY-LAWS ALONG WITH CERTIFICATE AND TEXT OF BY-LAW ISSUED BY THE 3RD RESPONDENT DATED 06.02.2015.** - **EXHIBIT P3 THE TRUE COPY OF THE COMPLAINT FILED BY THE CPI(M) LOCAL SECRETARY TO THE MINISTER DATED 09.01.2017 WHICH WAS OBTAINED UNDER RIGHT TO INFORMATION ACT.** - **EXHIBIT P4 THE TRUE COPY OF THE COMPLAINT FILED BY THE AREA SECRETARY, PULPALLY, OF COMMUNIST PART OF INDIA (MARXIST) DATED 10.02.2017.** - **EXHIBIT P5 THE TRUE COPY OF THE COMPLAINT SUBMITTED BY VS CHACKO BEFORE THE STATE SECRETARY OF CPI(M) DATED 08.05.2017.** **EXHIBIT P6 THE TRUE COPY OF THIS JUDGMENT OF THIS HON'BLE COURT IN WPC 28125/2017 DATED 24.08.2017. EXHIBIT P7 THE TRUE COPY OF THE REPLY SUBMITTED BY THE 1ST PETITIONER IN HIS CAPACITY AS THE PRESIDENT OF THE SOCIETY DATED 15.10.2018. EXHIBIT P8 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER ON 18.10.2018. EXHIBIT P9 THE TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.34695/2018 DATED 25.10.2018. EXHIBIT P10 THE TRUE COPY OF THE JUDGMENT OF DIVISION BENCH OF THIS HON'BLE COURT IN WRIT APPEAL 2232/2018 DATED 16.11.2018.** **WP(C).No.13032 OF 2020** **13** - **EXHIBIT P11 THE TRUE COPY OF THE ORDER NO.CRP/1849/17 DATED 08.11.2018 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P12 THE TRUE COPY OF THE ORDER NO.CRP/1849/17 DATED 01.12.2018 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 32(1) OF THE CO-OPERATIVE SOCIETIES ACT, 1969.** - **EXHIBIT P13 A TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONERS SEEKING CERTAIN DOCUMENTS DATED 07.12.2018.** - **EXHIBIT P14 THE TRUE COPY OF THE RELEVANT PAGES OF THE COUNTER AFFIDAVIT DATED 14.12.2018.** - **EXHIBIT P15 THE TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WP(C)NO.42076 OF 2018 DATED 14.02.2019.** - **EXHIBIT P16 THE TRUE COPY OF THE ORDER ISSUED TO THE PETITIONERS DATED 31.12.2019.** **EXHIBIT P17 THE TRUE COPY OF THE REPLY DATED 07.01.2020.** - **EXHIBIT P18 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.584/2020 DATED 17.01.2020.** - **EXHIBIT P19 THE TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.3279/2020 DATED 06.02.2020.** - **EXHIBIT P20 THE TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 3RD RESPONDENT DATED 06.03.2020.** - **EXHIBIT P21 THE TRUE COPY OF THE NOTICE ISSUED BY THE 5TH RESPONDENT IN WHICH THE DATE IS SHOWN AS 10.03.2019.** - **EXHIBIT P22 THE TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONERS DATED 19.03.2020.** - **EXHIBIT P23 THE TRUE COPY OF THE REPORT DATED 15.05.2020.** - **EXHIBIT P24 THE TRUE COPY OF THE REPRESENTATION** **WP(C).No.13032 OF 2020** **14** **FILED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT DATED 12.05.2020.** **EXHIBIT P25 THE TRUE COPY OF THE NOTICE DATED 21.05.2020.** - **EXHIBIT P26 THE TRUE COPY OF THE NOTICE DATED 27.05.2020.** - **EXHIBIT P27 THE TRUE COPY OF THE COMPLAINT GIVEN BY THE PETITIONERS DATED 29.05.2020.** - **EXHIBIT P28 THE TRUE COPY OF THE REPRESENTATION 30.05.2020.** **EXHIBIT P29 THE TRUE COPY OF THE COMPLAINT DATED 01.06.2020.** - **EXHIBIT P30 THE TRUE COPY OF THE LETTER GIVEN BY THE ADV.SAJEEV PD DATED 03.06.2020.** - **EXHIBIT P31 THE TRUE COPY OF THE ORDER DATED 12.06.2020 ISSUED BY THE 3RD RESPONDENT.** - **RESPONDENT'S EXHIBITS :** - **EXHIBIT R3(a) TRUE COPY OF THE REPORT UNDER SECTION 65 OF THE KERALA CO-OPERATIVE SOCIETIES ACT.** - **EXHIBIT R3(b) TRUE COPY OF THE LEDGER FOLIO OF THE SB ACCOUNT OF SRI.SAJEEVAN KOLLAPPALLY.** - **EXHIBIT R3(c) TRUE COPY OF THE COMPLAINT FILED BY THE SECRETARY BEFORE THE POLICE CHIEF.** **EXHIBIT R3(d) A TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BEFORE THE WAYANAD POLICE CHIEF BY THE PULPALLY SHO THROUGH THE ASSISTANT SUPERINTENDENT OF POLICE, MANANTHAVADY.** - **EXHIBIT R3(e) A TRUE COPY OF THE FIR.** **EXHIBIT R3(f)** - **A TRUE COPY OF THE POLICE COMPLAINT DATED 11.06.2020.** **//TRUE COPY// P.S TO JUDGE**