M. Dhanya v. Joint Registrar of Co-operative Societies General, Sakaharana Bhavan, Puthiyara Kozhikode; Quilandy Taluk Agricultural Co-operative Marketing Society Ltd No.1786, Perambra, Kozhikode; P. Vas Master, President, Quilandy Taluk Agricultural Co-operative Marketing Society Ltd

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 19TH DAY OF DECEMBER 2012/28TH AGRAHAYANA 1934 WP(C).No. 588 of 2012 (W) ------------------------- PETITIONER: ------------M.DHANYA, AGED 28 YEARS SECRETARY (UNDER SUSPENSION) THE QUILANDY TALUK AGRICULTURAL CO-OPERATIVE MARKETING SOCIETY LTD NO.1786 PERAMBRA, KOZHIKODE. BY ADVS.SRI.B.S.SWATHY KUMAR SMT.P.V.SOBHANA RESPONDENTS: -------------1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES GENERAL, SAKAHARANA BHAVAN, PUTHIYARA KOZHIKODE 673001. 2. THE QUILANDY TALUK AGRICULTURAL CO-OPERATIVE MARKETING SOCIETY LTD NO.1786 PERAMBRA, KOZHIKODE 673 525 REPRESENTED BY ITS SECRETARY-IN-CHARGE. 3. P.VASU MASTER PRESIDENT THE QUILANDY TALUK AGRICULTURAL CO-OPERATIVE MARKETING SOCIETY LTD.NO.1786 PERAMBRA, KOZHIKODE-673525. R2,R3 BY ADV. SRI.P.P.JACOB R1 BY GOVERNMENT PLEADER SHRI.D.SOMASUNDARAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1-8-2012, THE COURT ON 19-12-2012 DELIVERED THE FOLLOWING: APPENDIX IN WPC 588/2012 ## PETITIONER(S) EXHIBITS EXHIBIT-P1. TRUE COPY OF THE MEMO OF CHARGES NO.EST 1/2012 DATED 2.1.2012 ISSUED BY THE 3RD RESPONDENT. - EXHIBIT-P2. TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 3.1.2012. - EXHIBIT-P3. TRUE COPY OF THE ORDER NO.II/2012 DATED 3.1.2012 OF THE 3RD RESPONDENT. - EXHIBIT-P4. TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 5.1.2012. EXHIBIT-P5. TRUE COPY OF THE LETTER DATED 26.12.2011 SUBMITTED BY THE PETITIONER. EXT.P6: -DO- OF THE LETTER DT.NIL SENT TO THE PETITIONER EXT.P7: -DO- OF THE ORDER NO:E & H/4/2012 DT.27.6.2012 OF THE 2ND RESPONDENT EXT.P8: -DO- COMPLAINT FILED BEFORE THE 1ST RESPONDENT DT.27.6.2012 ## RESPONDENTS' EXHIBITS EXT,R2A: TRUE PHOTOCOPY OF THE RESOLUTION OF THE SOCIETY DT.11.1.2012 APPROVING THE SUSPENSION ORDER ISSUED BY THE RESPONDENT EXT.R2B: TRUE PHOTOCOPY OF THE RESOLUTIONS IN THE COMMITTEE MEETING OF THE SECOND RESPONDENT DT.11.1.2012 EXT.R2C: -DO- OF THE RECEIPT ISSUED BY SUB INSPECTOR OF POLICE, PERAMBRA TO THE SECOND RESPONDENT DT.5.3.2012 EXT.R2D: -DO- OF THE RESOLUTION DT.12.3.2012 OF THE SECOND RESPONDENT EXT.R2E: -DO- OF THE LETTER ISSUED BY THIRD RESPONDENT TO THE SECOND RESPONDENT DT.11.1.2012 EXT.R2F: -DO- OF THE LETTER ISSUED BY SECOND RESPONDENT TO THE THIRD RESPONDENT JJ /TRUE COPY/ P.S.TO JUDGE ## **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.588 of 2012-W ---------------------------------------------------Dated this the 19[th] December, 2012** ## **J U D G M E N T** The petitioner has filed this Writ Petition aggrieved by the action of the 3[rd] respondent in suspending her from service. 2. According to the petitioner, she was appointed as the Secretary of the 2[nd] respondent Co-operative Society by Resolution No.18 of the Managing Committee of the 2[nd] respondent adopted at its meeting held on 22.11.2006. There were differences of opinion between the petitioner and the 3[rd] respondent, especially for the reason that she was very strict in discharging her duties in accordance with the provisions of the Kerala Co-operative Societies Act, 1969 (`the Act' for short) and the Kerala Co-operative Societies Rules, 1969 (`the Rules' for short). While so, the petitioner was served with Ext.P1 Memo of Charges dated 02.01.2012, calling for her explanation. On the next day itself, 03.01.2012, the petitioner submitted her explanation in person, which is Ext.P2. 3. The allegation of the petitioner is that immediately after accepting her explanation at 3 p.m on 03.01.2012, the 3[rd] 2 **W.P(c) No.588 of 2012-W** respondent left the office after directing the petitioner to resume work. He returned after about 20 minutes, summoned the petitioner to his office and handed over to her Ext.P3, which is also dated 03.01.2012. As per Ext.P3, the petitioner has been placed under suspension for a period of six months. The petitioner thereupon submitted Ext.P4 petition dated 05.01.2012 to the 1[st] respondent seeking her reinstatement. However, according to the petitioner, no action has been taken on Ext.P4. Therefore, the petitioner has filed this Writ Petition seeking a declaration that Ext.P3 has been issued by the 3[rd] respondent without any authority, and consequential orders to set aside the same and to reinstate the petitioner. 4. The contentions of the petitioner are opposed by respondents 2 and 3 by filing a counter affidavit. An additional counter affidavit has also been filed in answer to the contentions of the petitioner in the Writ Petition. According to respondents 2 and 3, though the order of suspension was initially passed by the 3[rd] respondent, President of the Society, the same has subsequently been approved and ratified by the Managing Committee which is the appointing authority. According to respondents 2 and 3, the order of suspension is therefore valid. 3 **W.P(c) No.588 of 2012-W** Since an order of suspension is not an order of punishment, it is contended that the same is not amenable to challenge before this Court. It is also contended that the proper remedy of the petitioner if she is aggrieved by Ext.P3 order is to challenge the same by invoking her statutory remedy provided by Section 69 of the Act. In response to the contention that the order of suspension of the petitioner has been extended without the prior permission of the Registrar, it is pointed out that such prior permission is necessary only where the suspension is to continue beyond a period of one year. According to respondents 2 and 3 the petitioner was suspended for valid reasons. The allegations of personal animosity between the petitioner and the 3[rd] respondent is also denied. According to respondents 2 and 3 therefore, this Writ Petition is liable to be dismissed. 5. The petitioner has filed a reply affidavit in answer to the counter affidavit of respondents 2 and 3 raising a fresh allegation that the Managing Committee that adopted Ext.R2(a) resolution was not properly convened and relies on Ext.P6. A letter alleged to have been issued by two members of the Managing Committee of the 2[nd] respondent society is also produced as Ext.P6. **W.P(c) No.588 of 2012-W** 4 6. I have heard Advocate B.S.Swathi Kumar, who appears for the petitioner, Advocate Sri P.P.Jacob, who appears for respondents 2 and 3 and the learned Government Pleader, who appears for the 1[st] respondent. I have been taken through the records of the case as well as the decisions on the point. I have considered the rival contentions anxiously. 7. According to the learned counsel Sri B.S.Swathi Kumar, the petitioner has been suspended only out of the personal grudge nourished by the 3[rd] respondent against her. She is a person who is very strict in adhering to the rules and the provisions of law. For the above reason, she has incurred the wrath of the 3[rd] respondent. 8. Sri P.P.Jacob, who appears for respondents 2 and 3 on the other hand refutes the allegations of personal animosity. It is contended that the petitioner has been suspended for valid reasons. The charges against her are spelt out in Ext.P1 Memo of Charges. It was after considering the explanation Ext.P2 submitted by the petitioner that Ext.P3 order of suspension was issued. This shows that the same was issued by the President, but the same has been ratified, by the Managing Committee later on. The said procedure, according to the learned counsel, is 5 **W.P(c) No.588 of 2012-W** permissible. The proper remedy of the petitioner is to challenge the said order of suspension if she is aggrieved, by invoking her statutory remedy under the Act. It is therefore contended that this Writ Petition is devoid of merits and liable to be dismissed. Apart from the above, a further contention that a Writ Petition would not lie against a Co-operative Society is also raised. 9. I have heard Advocate B.S.Swathi Kumar, who appears for the petitioner, Advocate D.Somasundaram, the learned Special Government Pleader as well as Sri P.P.Jacob, who appears for respondents 2 and 3. I have been taken through the pleadings of the case as well as the precedents applicable. I have considered the rival contentions anxiously. 10. The reliefs sought for in this Writ Petition are against Ext.P3 order of suspension passed by the 3[rd] respondent. A declaration that the 3[rd] respondent does not have the authority to issue the suspension order, and that the same is vitiated by illegality and lack of competence has also been sought for. The petitioner has also sought for the issue of a writ of certiorari calling for the records relating to Ext.P3 and for quashing the same. A relief of reinstatement is another relief sought. The reliefs sought for are all against respondents 2 and 3. The 2[nd] 6 **W.P(c) No.588 of 2012-W** respondent is a Co-operative Society registered under the Act and the 3[rd] respondent is the President thereof. It is well settled that a Writ Petition is not maintainable against a Co-operative Society. The above position is well settled by the decisions of this Court in **P.Bhaskaran and Ors. v. Additional Secretary and Ors.** [1987(2) KLT 903 (FB)] and **John v. Liquidator** [2006 (1) KLT 11 (F.B)]. Therefore, the Writ Petition has to fail on the above ground itself. 11. The next question that has been raised is whether the order of suspension issued by the 3[rd] respondent is valid or not. Though allegations regarding personal malice and malafides have been raised against the 3[rd] respondent, there is no evidence or material on record to substantiate the said contention. It has been held by this Court in **Prasanth Maroli v. Kannur Primary Co-op. Agrl. & R.D.B Ltd.** [2008(4) KLT 451] that the President of a Co-operative Society has the power to suspend an employee. The only requirement is that such order of suspension should be approved or ratified by the Managing Authority. The President of a Society is the authority who has been vested with general control over the affairs of the society. The authority vested with such general control over an establishment, would 7 **W.P(c) No.588 of 2012-W** certainly have to be conceded the power to place an employee under suspension, where the circumstances justify such an action, with the only restriction that such suspension would have to be approved by the Managing Committee as early as possible. In the present case, though Ext.P3 was initially issued by the 3[rd] respondent, the same has been ratified by the Managing Committee as evidenced by the copy of the resolution of 11.01.2012, Ext.R2(a). It is true that allegations are levelled against the manner in which Ext.R2(a) resolution was passed. There is also allegations that the resolution was pushed through after notice in the present Writ Petition was served through special messenger on 10.01.2012. The allegation of the petitioner is sought to be substantiated by referring to the resolution itself, which is dated 11.01.2012. Notice in the Writ Petition appears to have been served on 10.01.2012. It is probable that Ext.R2(a) was passed after receipt of notice in this Writ Petition. The allegations contained in Ext.P6 are also pressed into service to substantiate the above allegation. In spite of the above, the fact remains that resolution Ext.R2(a) has been passed. The said resolution is not under challenge in this Writ Petition. It is also worth noticing that the remedy by way of ## **W.P(c) No.588 of 2012-W** 8 a Writ Petition under Article 226 of the Constitution is not available for challenging such a resolution, as held by this Court in **Abraham v. Elikulam S.C.B Ltd.** [2004(3) KLT 25]. The proper remedy of the petitioner is under Section 69 of the Act, as held by this Court in **Prakasini v. Joint Registrar** [2000(6) KLT 199]. For the above reasons, I do not find any grounds to interfere with the order of suspension Ext.P3 or to grant any of the reliefs sought for in this Writ Petition. Therefore, this Writ Petition fails and is accordingly dismissed. ## _**(K.SURENDRA MOHAN, JUDGE)**_ ## rtr/