Rejeena Bellarmen and Others v. Director of Fisheries, Kerala & Registrar of Fishermen Co-Operative Societies, Thiruvananthapuram and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 17TH DAY OF JANUARY 2013/27TH POUSHA 1934** ## **WP(C).No. 23829 of 2009 (W)** **---------------------------** ## **PETITIONER(S):** ## **--------------------------** **1. REJEENA BELLARMEN,T.C.69/1348, ATTINPURAM,POONTHURA P.O.,THIRUVANANTHAPURAM.** **2. S.J.ALPHONSE, JACKSON VILLA, POONTHURA P.O.,THIRUVANANTHAPURAM.** **3. SHIVANKUTTY, VETTIARIKATHU VEEDU, POONTHURA P.O.,THIRUVANANTHAPURAM.** **4. O.PETER, NEAR MADUVAM, POONTHURA P.O.,THIRUVANANTHAPURAM.** **5. P.ROBIN, T.C. 47/166, NEAR ICE PLANT, POONTHURA P.O.,THIRUVANANTHAPURAM.** **BY ADVS.SRI.B.S.SWATHY KUMAR SMT.P.A.ANITHA** ## **RESPONDENT(S):** - **----------------------------** **1. THE DIRECTOR OF FISHERIES, KERALA/REGISTRAR OF FISHERMEN CO-OPERATIVE SOCIETIES,THIRUVANANTHAPURAM.** **2. THE POONTHURA FISHERMEN DEVELOPMENT &** - **WELFARE CO-OPERATIVE SOCIETY LTD., NO.F(T) 33, REP. BY ITS PART-TIME ADMINISTRATOR/SR.INSPECTOR OF FISHERIES CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM.** ## ***ADDL.R3 TO R5 IMPLEADED** - ***R3: JOHNY.C.,T.C.47/221, PALLIVILAKOM PURAYIDAM, POONTHURA.P.O., TRIVANDRUM-26** - ***R4: A.VINCENT,T.C.47/384, CHETTIYAR HOUSE, POONTHURA.P.O., TRIVANDRUM-26** - ***R5: ANTO SURESH,T.C.47/261,POONTHURA.P.O., TRIVANDRUM-26.** ## ***ADDL.R3 TO R5 IMPLEADED AS PER ORDER DATED 28/06/2011 IN I.A.NO.9095/2011** **R1 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL BY ADV. SRI.THOMAS ABRAHAM SRI.DIPU.R** **SRI.K.S.HARIDAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-01-2013, ALONG WITH WP(C)NO.18599/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C)NO.23829/2009** **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE PROCEEDINGS DATED 13/07/09 OF THE 1ST RESPONDENT. P2 COPY OF THE ORDER IN F3-8779/09 DATED 30/3/2010** ## **RESPONDENT'S EXHIBITS:** - **R1(A) COPY OF THE COMPLAINT DATED 28/5/09** - **R1(B) COPY OF THE REPORT WITH THE COVERING LETTER AND ANNEXURE** - **R1(C) COPY OF THE REPORT SUBMITTED BY THE UNIT INSPECTOR** - **R1(D) COPY OF THE COMMUNICATION ADDRESSED TO CIRCLE CO-OPERATIE UNION.** - **R3(A) COPY OF THE ORDER DATED 30/3/2010** - **R3(B) COPY OF THE PROCEEDINGS DATED 13/7/2009 OF THE 1ST RESPONDENT.** - **R3(C) COPY OF THE ORDER DATED 12/7/2010** - **R3(D) COPY OF THE ORDER DATED 20/10/2010** - **R3(E) COPY OF THE ORDER DATED 11/01/2011** - **R3(F) COPY OF THE ORDER NO.F3/1452/08 DATED 10/02/2011** - **R3(G) COPY OF THE ELECTION NOTIFICATION DATED 22/02/2011** - **R3(H) COPY OF THE NOTIFICATION PUBLISHED IN MANGALAM AND JANAYUGAM DAILIES ON 25/02/2011** - **R3(I) COPY OF THE ORDER DATED 17/03/2011 IN WP(C)NO.23829 OF 2009 R3(J) COPY OF THE ORDER DATED 28/05/2011 R3(K) COPY OF THE ORDER DATED 8/7/2011 IN WP(C)NO.18599 OF 2011** **/TRUE COPY/** **P.S.TO.JUDGE** **sts** A.M.SHAFFIQUE, J. ---------------------------------------------------- **==> picture [288 x 43] intentionally omitted <==** --------------------------------------------------Dated this the 17[th] January, 2013 **==> picture [216 x 13] intentionally omitted <==** W.P.(C) No. 23829/2009 is filed challenging the order of supersession passed by the 1[st] respondent in terms of Ext.P1 by which the Managing Committee had been removed by exercising the power under S.32(3). W.P.(C) No. 18599/2011 is filed by the Society and members of the Administrative Committee, after the order of supersession inter alia seeking a relief not to remove them from their respective positions. 2. Petitioners in W.P.(C) No. 23829/2009 are some of the members of the Managing Committee. The main contention urged by the petitioners is that and no action had been taken to issue notice under S.32(1) of the Act despite the fact that by Ext.R1(d) there was a clear indication from the 1[st] respondent to take steps under S.32(1) of the Act. Though there are several allegations mentioned in Ext.P1, having regard to the fact that no specific reason had been stated to avoid the issuance of notice under S.32(1) and no enquiry had been conducted in W.P.(C) No. 23829 of 2009 - W 2 the matter, Ext.P1 is in violation of the principles of natural justice, arbitrary, void and issued with mala fide intentions. 3. Counter affidavit is filed on behalf of the 1[st] respondent and also by additional respondents 3 to 5. 4. The first respondent in the counter affidavit supported the order passed by the Registrar inter alia contending that there were several allegations of misappropriation which resulted in taking action against the managing committee and therefore there is no reason to interfere with Ext.P1 order. 5. It is contended that on receiving a complaint alleging violation of the rules and financial mis-management, a confidential enquiry revealed that the allegations were true. Further a report had been obtained and it was found that the members were involved in financial mis-management and violation of the Act and Rules. It is stated that the members as well as the beneficiaries started to demonstrate and there were protests against the illegalities committed by the managing committee and having taken note of the same, the respondent decided to dispense with prior notice under S.32(1) of the Act as it was not practicable. In that view of the W.P.(C) No. 23829 of 2009 - W 3 matter steps were taken under S.32(3) of the Act. The additional respondents are persons appointed by the 1[st] respondent to administer the Society in the interregnum. Though they have filed a detailed counter affidavit and W.P.(C) No. 18599/2011, I do not think that they have any specific right to interfere in a matter relating to the challenge against an order of supersession by the elected body of the members of the managing committee. For that reason itself they cannot claim to remain in power as claimed in W.P.(C) No. 18599/2011. 6. The question to be considered in this case is whether there is any illegality in Ext.P1 order and the answer would depend upon whether there is sufficient reason for dispensing with the notice and enquiry under sub-section (1) of Section 32 of the Act. Section 32(3) reads as under: “Notwithstanding anything contained in sub-section (1) or sub-section (2) it shall not be necessary to give an opportunity to the committee to state its objections and to consult the Unions and financing banks, in cases where the Registrar is of the opinion that it is not reasonably practicable to do so, subject however to the condition that in such W.P.(C) No. 23829 of 2009 - W 4 cases the period of supersession shall generally be for six months and in case a new committee, cannot be constituted or enter upon office in accordance with the bye-laws of the society within the period of supersession the period may be extended for the further period not exceeding six months- (a) in the case of a co-operative society only after consulting the Circle Co-operative Union concerned; and (b) in the case of an Apex Society or a Central Society only after consulting the State Cooperative Union“. It is not in dispute that going by the provisions of the Act it has to be found by the Registrar as to why the service of notice to the members of the managing committee under S.32(1) is reasonably not practicable. A reference to the following judgments will highlight as to under what circumstances one can assume that it is reasonably not practicable to issue notice. (i) In _**Union of India v. Tulsiram Patel,**_ **((1985) 3 SCC 398)** Supreme Court while considering as to what is reasonably not practicable in the light of second proviso to Article 311 of the Constitution of India held that, what is requisite to find that W.P.(C) No. 23829 of 2009 - W 5 an inquiry is not practicable is the opinion of a reasonable man taking a reasonable view of the prevailing situation. Some instances by way of illustration were also stated. Those are (i) where the government servant through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so (ii) where the government servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held (iii) where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. It is also held that the reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Though these are some of the instances highlighted in the said judgment, it could be seen that subsequent judgments also considers the reasonable practicability as impossibility to conduct an enquiry either due to prevention or due to factors which are imminent on W.P.(C) No. 23829 of 2009 - W 6 account of the particular type of issue involved in the matter. (ii) It will be useful to refer to _**Southern Railway Officers Association v. Union of India, (2009) 9 SCC 24**_ **,** in which the Supreme Court held as under: _**“19.** The second proviso appended to Article 311, however, makes three exceptions in regard to constitutional requirement to hold an enquiry, clause (b) whereof provides that in a case where the disciplinary authority is satisfied that it is not reasonably practicable to hold such enquiry, subject of course to the condition that reasons therefor are to be recorded in writing. Recording of reasons, thus, provides adequate protection and safeguard to the employee concerned. It is now well settled that reasons so recorded must be cogent and sufficient. Satisfaction to be arrived at by the disciplinary authority for the aforementioned purpose cannot be arbitrary. It must be based on objectivity”._ ## (iii) In **Mohanachandran Nair v. Andoorkonam** **Service Co operative Bank Ltd** ( **2004 (2) KLT 1062)** a learned single Judge of this court held as under: W.P.(C) No. 23829 of 2009 - W 7 _“It may be seen that under S.32(1), the Registrar has to satisfy himself as to the merits of the case whereas under S.32(3) he has also to form an opinion as to the impracticability of the procedural formality of giving an opportunity to the Committee to state its objections. In other words, the requirement of invocation of S.32(3) should be such that, apart from the gravity of the situation, the service of notice and consultation should also be impracticable. Notice is not an empty formality to be casually dispensed with. It is a notice to state objections. Therefore, only if in view of a situation of immence or emergency which cannot brook the delay due to notice and situations where it is not feasible or practicable to serve notice, the same can be dispensed with. In any case, being an extremely rare situation, the Registrar should record the reasons for the opinion on impracticability"._ Therefore going by the principle of law mentioned above there has to be some sort of prevention created by the managing committee members or their associates or inability on the part of the Registrar to issue notice. In normal circumstances, if there is no practical difficulty in issuing notice, definitely order of supersession can be passed only W.P.(C) No. 23829 of 2009 - W 8 after conducting an enquiry as contemplated under S.32(1). In order to exercise the special power by way of S.32(3) by removing an elected body immediately without even giving them an opportunity to state their objection is a drastic step which has to be exercised only by insisting on the procedure prescribed under S.32(3). 7. When the statute clearly indicates that the Registrar has to form an opinion that giving an opportunity to the Managing Committee to state their objection is not reasonably practicable, such opinion should be reflected in Ext.P7 order. 8. On a perusal of Ext.P1 order, no specific reason has been stated as to why such a drastic step under S.32(3) had been taken whereas only a cursory statement is made stating that it is not practicable to issue notice to the members of the managing committee. Reasons stated in the last paragraph of Ext.P1 is not sufficient to invoke S.32(3). 9. It is contended by the learned Special Government Pleader and the learned counsel appearing on behalf of additional respondents that there are very serious allegations against the Managing Committee members. True that there are W.P.(C) No. 23829 of 2009 - W 9 allegations of substantial irregularities and misappropriation. But the question is, whether such allegations by itself would necessitate an action under Section 32(3) of the Act. I do not think so. The Registrar, while invoking his power under Section 32(3) of the Act has to still express an opinion, which should be reflected in the order that it is not reasonably practicable to issue notice and give them opportunity to submit objections. Having regard to the factual situations involved in the case, I do not intend to exercise the jurisdiction to verify whether the allegations in Ext.P1 are correct or not. It is made clear that I have only considered the validity of the action taken under S.32(3) without notice and enquiry. 10. In that view of the matter: (i) W.P.(C) No. 23829/2009 is allowed and Ext.P1 is set aside. It is open for the respondents to take further steps in accordance with S.32(1) of the Act if advised. The respondents shall put back the managing committee in office within a period of three weeks from the date of receipt of a copy of this judgment. W.P.(C) No. 23829 of 2009 - W 10 (ii) W.P.(C) No. 18599/2011 is dismissed. A.M.SHAFFIQUE, JUDGE. rka