T. Saifudeen v. Valapattanam Service Co-operative Bank Ltd and others

WP(C) NO. 17409 OF 2016 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944** ## **WP(C) NO. 17409 OF 2016** ## **PETITIONER/S:** T.SAIFUDEEN AGED 64 YEARS 'SAJNAS', MILL ROAD, VALAPATTANAM, KANNUR DISTRICT670 010. BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR ## **RESPONDENT/S:** 1 THE VALAPATTANAM SERVICE CO-OPERATIVE BANK LTD.NO.LL 242 REPRESENTED BY ITS SECRETARY-IN-CHARGE, VALAPATTANAM P.O., KANNUR-670 010. 2 THE ADMINISTRATIVE COMMITTEE OF THE VALAPATTANAM SERVICE CO-OPERATIVE BANK LTD.NO.LL 242, REPRESENTED BY ITS CONVENOR, VALAPATTANAM P.O.,KANNUR-670 010. 3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES GENERAL KANNUR, KANNUR DISTRICT-670 002. BY ADVS. SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.K.V.PAVITHRAN SRI.P.SAJU SRI.E.M.UNNIKRISHNAN MANJERI ## **OTHER PRESENT:** WP(C) NO. 17409 OF 2016 2 SRI.K.M.FAISAL, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 17409 OF 2016 3 **P.V.KUNHIKRISHNAN, J --------------------------------------W.P.(C) No. 17409 of 2016 -------------------------------------Dated this the 15[th] day of February, 2023** ## **JUDGMENT** The above writ petition is filed with following prayers : (i) “To issue a writ of certiorari calling for the records leading to the issuance of Exhibits P9 and P11 and quash the same. (ii) To grant such other relief's as this Honourable Court may deem fit in the circumstances of this case.” [SIC] 2. The petitioner was the President of the 1[st] respondent-Society. The Managing Committee headed by the petitioner was elected on 22.09.2013 and its tenure was upto 21.09.2018. In connection with a departmental audit for the year 2012-13 conducted by the Bank, the auditor issued a letter dated 26.09.2013 pointing out that there is huge misappropriation to the tune of Rs.1,65,70,000/- by the branch of the Society. It is alleged that the misappropriation was done by the Manager in charge of the Manna branch by withdrawing WP(C) NO. 17409 OF 2016 4 large amount from his account without there being any balance in his account to clear the cheques presented by him. Based on Ext.P2 complaint, a crime was registered against Muhammed Jazeel at Valapattanam Police Station for the offences punishable under Secs. 409 and 420 IPC. It is submitted that the above mentioned Muhammed Jazeel was placed under suspension by the petitioner and later dismissed from service. During the course of investigation in Crime No. 1015/2013, the petitioner and other managing committee members as well as two other employees of the 1[st] respondentsociety were arrayed as accused in their capacity as the officers and office bearers of the society. After suspending the elected managing committee, a part time administrator was appointed to manage the day to day affairs of the society. The 3[rd] respondent thereafter issued Ext.P5 order directing an enquiry to be conducted into the affairs of the society under Sec.65 of the Kerala Co-operative Societies Act (for short 'KCS Act'). In the meanwhile, the petitioner and others were served with an order under Sec. 32(1) of the KCS Act by the 3[rd] respondent requiring them to show cause as to why the WP(C) NO. 17409 OF 2016 5 managing committee of the society should not be superseded by exercise of the powers under Sec.32(1) of the KCS Act. On receipt of Ext.P7, the petitioner and other members resigned and submitted a reply pointing out that they had resigned on 11.12.2015. It is the case of the petitioner that before Ext.P7 itself, the petitioner and other members resigned from their committee. Thereafter, the 3[rd] respondent proceeded and issued Ext.P11 order superseding the managing committee of the 1[st] respondent – society. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. I also heard the learned counsel appearing for the 1[st] respondent. 4. The counsel for the petitioner submitted that it is an admitted fact that the petitioner resigned from the committee before Ext.P7 notice and Ext.P11 order. The petitioner relied the judgment of the Full Bench of this Court in **Anil M.S. v. Joint Registrar (General) of Co-operative Societies, Trivandrum and others** [ILR 2021 (4) Ker 5]. The relevant paragraph of the above judgment is extracted hereunder : WP(C) NO. 17409 OF 2016 6 25. “When applying the aforesaid principles a decision in futile exercise of jurisdiction by Tribunals warrants interference, we have no hesitation to hold that this Court also will not and therefore, shall not exercise jurisdiction in futility and make anyone to do vain and fruitless things and should not do or enact which would be in vain. We, therefore, hold that when a democratically elected Managing Committee of a society is not in existence and thereby not available to be replaced and in its place an administrator or administrative committee is appointed, continuance of proceedings under S.32 of the KCS Act to supersede the said non - existing committee for the purpose of considering whether the consequence of being a member of a superseded committee could be fastened on every member of the said committee, is nothing but a futile exercise. In the light of the discussions, conclusions and the aforesaid principles we answer the reference as hereunder: Matsyafed's case is no more good law to be followed as a precedent. When the Managing Committee of a society is not actually existing the fact that proceedings initiated against it under S.32 of the KCS Act for supersession, but could not be completed due to the expiry of the prescribed term of the Committee, is no ground to permit continuation of such proceedings for supersession against a non - existent committee even for the limited purpose of conducting it notionally and subject to its outcome, to impose consequential disqualifications under S.32(1)(e) of the KCS Act. Even in a case where on initiation proceedings for supersession an order of supersession was passed and an administrator or administrative committee was appointed, once the order of WP(C) NO. 17409 OF 2016 7 supersession is successfully challenged and in the meanwhile the prescribed term of the Managing Committee got elapsed, the proceedings for supersession under S.32 of the KCS Act to remove the Committee would not survive thereafter and in other words it would get abated. In such circumstances, it will not be permissible to exercise the jurisdiction in futility to direct for continuation of such proceedings. If actions or omissions on the part of an existing committee call for its supersession it should be initiated in accordance with law and an inability to initiate or failure to initiate it, within the tenure of the committee in the prescribed manner is no ground to seek for exercise of jurisdiction in futility. Even if proceedings were initiated and an order of supersession of the existing committee under S.32 of the KCS Act was passed upon interference with the order of supersession by the Court on any of the legally permissible ground, the fact that such interference was on technical ground is no ground or reason for granting liberty to proceed with such proceedings for supersession if the term of office of that committee had expired in the meanwhile. However, we make it clear that if the report on an inquiry under S.65 or an inspection under S.66 was the basis for initiation of proceedings under S.32, interference with the order of supersession by itself would not invalidate such a report. If it is capable of satisfying the ingredients for an action under S.68 of the KCS Act it could be initiated and, needless to say that, in such eventuality it will have necessary consequences, subject to its outcome.” 5. In the light of the above judgment, I think there cannot be any supersession of a committee when there is no WP(C) NO. 17409 OF 2016 8 committee in existence. Admittedly, the petitioner and other committee members resigned from the committee before Exts.P7 and P11. If that is the case, Exts.P7 and P11 need not be retained. But I make it clear that the criminal case and other proceedings can continue in accordance to law. Therefore, this writ petition is disposed of with the following directions : - 1) Exts.P7 and P11 are quashed. - 2) The criminal case and other proceedings can continue in accordance to law. - 3) All contentions of the petitioner based on Ext.P9 report are left open. **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 17409 OF 2016 9 ## **APPENDIX OF WP(C) 17409/2016** PETITIONER EXHIBITS P1 A COPY OF THE LETTER SENT BY THE AUDITOR TO THE 1ST RESPONDENT BANK DTD.26.9.2015. P2 A COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE CIRCLE INSPECTOR OF POLICE, VALAPATTANAM DTD.26.9.2013. P3 A COPY OF THE FIR DTD.28.9.2013 IN CRIME NO.1015/2013 OF THE VALAPATTANAM POLICE STATION. P4 A COPY OF THE ORDER IN BA NO.1312/2014 DTD.25.2.2014. P5 A COPY OF THE ORDER NO.2068/2015/CRP DTD.25.4.2015 ISSUED BY THE 3RD RESPONDENT. P6 A COPY OF THE REGISTRATION LETTER SUBMITTED BEFORE THE 1ST RESPONDENT DTD.11.12.2015. P7 A COPY OF THE ORDER NO.2068/2015/CRP DTD.26.2.2016 ISSUED BY THE 3RD RESPONDENT. P8 A COPY OF THE REPLY SUBMITTED BEFORE THE 3RD RESPONDENT DTD.12.3.2016. P9 A COPY OF THE ENQUIRY REPORT NO.1175/15/K DTD.8.1.2016. P10 A COPY OF THE RELEVANT PAGES OF TEH BYELAWS OF THE 1ST RESPONDENT SOCIETY. P11 A COPY OF THE ORDER NO.2068/2015/CRP DTD.29.3.2016 ISSUED BY THE 3RD RESPONDENT.