Riji G. Nair (Dr.) v. State of Kerala & Ors.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944** **W.A. NO. 1554 OF 2017** **AGAINST THE JUDGMENT DATED 6.3.2017 IN W.P.(C) NO. 39358/2016 OF THE HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **DR.RIGI G.NAIR, "SRI SRI", NELLIMUKKU,THIRUMULLAVAROM P.O, KOLLAM** **BY ADV. SRI.D.SOMASUNDARAM** ## **RESPONDENTS:** - **1 REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695 001.** - **2 KERALA STATE CO-OPERATIVE CONSUMER FEDERATION LTD. NO. 4328 (CONSUMERFED) REPRESENTED BY ITS MANAGING DIRECTOR, GANDHI NAGAR, KOCHI 682 020.** - **3 THE ENQUIRY OFFICER, JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (SC/ST), CONSUMER FEDERATION, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM.** **SRI. SAIGI JACOB PALATTY, SR.G.P. FOR R1 & R3 SRI.M.SASINDRAN, SC FOR R2** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 3.08.2022 ALONG WITH W.P.(C).NO.36951/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** # **WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944 WP(C) NO. 36951 OF 2017** ## **PETITIONER:** **DR.RIJI G.NAIR, AGED 56 YEARS, S/O.P.K.GANGADHARAN NAIR, 'SRI SRI', NELLIMUKKU THIRUMULLAVAROM P.O., KOLLAM.** **BY ADV. SRI.D.SOMASUNDARAM** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATION (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695001.** - **3 KERALA STATE CO-OPERATIVE CONSUMER FEDERATION LTD. NO.4328 (CONSUMER FED), REPRESENTED BY ITS MANAGING DIRECTOR, GANDHI NAGAR, KOCHI-682020.** **SRI. SAIGI JACOB PALATTY, SR.G.P. FOR R1 & R2 SRI.M.SASINDRAN, SC FOR R3** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **03.08.2022 ALONG WITH W.A.NO.1554/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ. =============================================== W. A. No. 1554 of 2017 _(arising out of the impugned judgment dated 6.3.2017 in W.P.(C) No. 39358/2016)_ & ## W. P. (C) No. 36951 of 2017 =============================================== Dated this the 3[rd] day of August, 2022 ## J U D G M E N T ## ALEXANDER THOMAS, J. ## W. A. No. 1554 of 2017 The subject matter of the above intra court appeal is the impugned judgment rendered on 6.3.2017 by the learned Single Judge dismissing the instant Writ Petition (Civil) No.39358/2016. The appellant herein is the petitioner in the WP(C) and the respondents herein are the respondents in the WP(C). 2. Heard Sri.D.Somasundaram, learned counsel appearing for the appellant in the W.A., Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for R-1 & R-3 in the W.A. and Sri.M.Sasindran, learned Standing Counsel for the Kerala State Co-operative Consumer Federation Ltd. No. 4328 (CONSUMERFED) appearing for R-2 in the W.A. 3. During the pendency of this appeal, the Division W. A. No. 1554/2017 & W. P. (C) No. 36951/2017 ..2.. Bench of this Court had referred these matters to the Full Bench, and the Full Bench has thereafter answered the reference vide order rendered on 3.12.2020. The full text of the reference order of the Full Bench in this case has been reported as _**Riji G.Nair (Dr.) v. State of Kerala & Ors.** [2020 (6) KHC 633 (FB)]_ . The reference has been answered by the Full Bench, as can be seen from the last paragraph thereof (para 37), which reads as follows: _“37. Section 101 of the Act, is intended to subserve public interest and therefore, in public interest, if it is felt by the Government that exemption has to be given to any society from the provisions of the Act retrospectively, the said power is not taken away in any manner. However, each case will have to be considered on its own merits in order to evaluate whether the power of exemption had been exercised in public interest. There might be instances where a vested right had been created in favour of any person on account of the statutory mandate. In such circumstances, the State Government cannot exercise the power of exemption retrospectively, but in respect of procedural matters, there is absolutely no restriction on the part of the Government in granting exemption retrospectively._ _In the light of the above discussion, we answer the reference as under:-_ _(i) That S.101 of the Act can have retrospective operation subject to the limitation that vested rights cannot be taken away by invoking the above provision._ _(ii) To the extent mentioned above, the judgments in_ _**Sankaranarayanan** (supra) and_ _**Benny Peruvanthanam** (supra) do not lay down the correct law._ _Registry shall place the matter for hearing before the appropriate court. ”_ ## 4. Today when the matter has been taken up for consideration, Sri.D.Somasundaram, learned counsel appearing for the appellant, would submit that, it is not known as to whether W. A. No. 1554/2017 & W. P. (C) No. 36951/2017 ..3.. Sec.65 inquiry has been duly completed and that if Sec.68 surcharge proceedings are taken by the competent authority among the respondents, then it goes without saying that, copy of said Sec.65 inquiry report be given to him, and thereafter the stage may have to go to Sec.68(2) stage, etc. and the procedural safeguards thereof have been dealt with by the Division Bench of this Court in a recent judgment in W.A.No.1500/2021. It is thus urged by the counsel for the appellant that, liberty may be accorded to the appellant to raise all contentions available to him and that the competent respondent authority may follow the due procedure, if at all it is contemplated to initiate Sec.68 proceedings, etc. 5. It has been held in another Full Bench decision of this Court in _**Kudayathoor Service Co-operative Bank Ltd. v. Joint Registrar of Co-operative Societies (General)** [2022 (3) KLT 222 (FB)]_ that copy of Sec.65 inquiry report need not be given at the completion of Sec.65 inquiry process or commencement of Sec.68(1) stage. But, the procedure thereafter for initiating proceedings under Sec.68(2), has been dealt with in a recent judgment of this Court in W. A. No. 1500/2021. W. A. No. 1554/2017 & W. P. (C) No. 36951/2017 ..4.. 6. Therefore, it is ordered that if the 1[st] respondent/ competent authority proposes to take any adverse proceedings against the appellant, on the basis of Sec.65(1) inquiry report, by taking recourse to proceedings under Sec.68, etc., then copy of Sec.65(1) inquiry report and Sec.68(1) inquiry report should be given to the appellant at the Sec.68(2) stage and the procedural safeguards, as dealt with in the judgment of the Division Bench of this Court in W. A. No. 1500/2021, should also be strictly adhered to at the Sec.68(2) stage. No other directions and orders are called for. 7. We are told that as of now, no such proceedings under Sec.68 has been initiated against the appellant. So also, we are not fully aware as to whether Sec.65 inquiry proceedings itself has been completed or not. Hence, there is no necessity for us to issue any further orders and directions, except that the respondents shall proceed strictly in accordance with law, and all contentions available to the appellant in law are kept open to be raised by him at the appropriate stage in appropriate proceedings, in the manner known to law. The impugned judgment rendered by the learned Single ..5.. W. A. No. 1554/2017 & W. P. (C) No. 36951/2017 Judge in the above WP(C) will stand modified and substituted as above. With these observations and directions, the above Writ Appeal will stand disposed of. ## W. P. (C) No. 36951 of 2017 After hearing both sides, it is ordered that the directions and orders passed by this Court in the afore judgment in W. A. No. 1554/2017 will also be applicable in the instant case (WP(C).No.36951/2017). With these observations and directions, the above Writ Petition (Civil) will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE Sd/- SHOBA ANNAMMA EAPEN, JUDGE MMG ## **APPENDIX OF WP(C).NO.36951/2017** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORDER NO.CS(I)25788/2015 DATED 22/09/2015. EXHIBIT P2 A TRUE COPY OF THE INTERIM REPORT SEEKING EXTENSION OF THE PERIOD OF ENQUIRY. EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 06/03/2017 IN WRIT PETITION (C)NO.39538/2016. EXHIBIT P4 A TRUE COPY OF THE GAZATTE NOTIFICATION DATED 29/07/2017.**