V. C. John and others v. Deputy Director of Diary Development Office, Kottayam, and Manjoor Industrial Milk Co-Operative Society Ltd., and others

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 08TH DAY OF APRIL 2019 / 18TH CHAITHRA, 1941** **WP(C).No. 40146 of 2018** ## **PETITIONER/S:** **1 V.C.JOHN AGED 62 YEARS MEMBER NO.105, MANJOOR INDUSTRIAL MILK CO-OPERATIVE SOCIETY LTD., MANJOOR P.O., KOTTAYAM, RESIDING AT VELIYAVEETTIL, MANJOOR P.O., KOTTAYAM DISTRICT.** **2 XAVIER, MEMBER NO.2095,MANJOOR INDUSTRIAL MILK CO-OPERATIVE SOCIETY LTD., MANJOOR P.O., KOTTAYAM, RESIDING AT PALACKAPARAMBIL HOUSE, KANJIRATHANAM P.O., KOTTAYAM DISTRICT.** ## **BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENT/S:** - **1 THE DEPUTY DIRECTOR OF DIARY DEVELOPMENT OFFICE OF THE DEPUTY DIRECTOR OF DIARY DEVELOPMENT, KOTTAYAM-686001.** - **2 MANJOOR INDUSTRIAL MILK CO-OPERATIVE SOCIETY, MANJOOR P.O., KOTTAYAM, REPRESENTED BY ITS SECRETARY686603.** **3 THE PART-TIME ADMINISTRATOR, MANJOOR INDUSTRIAL MILK CO-OPERATIVE SOCIETY LTD., MANJOOR P.O., KOTTAYAM, (DIARY FARM INSTRUCTOR, DIARY DEVELOPMENT DEPARTMENT, MANJOOR UNIT, MANJOOR)686603.** **BY ADVS. GOVERNMENT PLEADER SRI.K.M.SATHYANATHA MENON SRI.T.B.HOOD SMT.KAVERY S THAMPI** WPC.Nos. 40146, 40933 and 42580 of 2018 2 **SMT.M.ISHA SRI.AMAL KASHA** ## **OTHER PRESENT:** **SRI.BIMAL K.NATH-SR.GP,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.04.2019, ALONG WITH WP(C).40933/2018, WP(C).42580/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 08TH DAY OF APRIL 2019 / 18TH CHAITHRA, 1941** ## **WP(C).No. 40933 of 2018** ## **PETITIONER/S:** - **1 K.M.RAJU AGED 56 YEARS KONDUKALAYIL HOUSE,KANJIRATHANAM.P.O, KOTTAYAM.** - **2 MATHEW PAUL, KALLADAYIL HOUSE,MANJOOR.P.O,KOTTAYAM.** - **3 RUBI ROBERT VETTIKKATHADATHIL HOUSE,MANJOOR.P.O, KOTTAYAM. BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENT/S:** - **1 THE DEPUTY DIRECTOR OF DIARY DEVELOPMENT OFFICE OF THE DEPUTY DIRECTOR OF DIARY DEVELOPMENT,KOTTAYAM-686001.** - **2 MANJOOR INDUSTRIAL MILK CO-OPERATIVE SOCIETY MANJOOR.P.O,KOTTAYAM,REPRESENTED BY ITS SECRETARY686603.** - **3 THE PART-TIME ADMINISTRATOR MANJOOR INDUSTRIAL MILK CO-OPERATIVE SOCIETY, MANJOOR.P.O,KOTTAYAM,(DIARY FARM INSTRUCTOR, DIARY DEVELOPMENT DEPARTMENT,MANJOOR UNIT,MANJOOR)686603.** - **4 BRIGHT THOMSON AGED 1 YEARS PAPPANAM THOTTATHIL,MANJOOR SOUTH.P.O, KOTTAYAM-686603.** WPC.Nos. 40146, 40933 and 42580 of 2018 4 **BY ADVS. SRI.P.C.HARIDAS GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.04.2019, ALONG WITH WP(C).42580/2018, WP(C).40146/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC.Nos. 40146, 40933 and 42580 of 2018 5 ## **CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 08TH DAY OF APRIL 2019 / 18TH CHAITHRA, 1941** **WP(C).No. 42580 of 2018** ## **PETITIONER/S:** **C.M.GEORGE, AGED 54 YEARS S/O MATHEW,VADAKKEKALAYIL HOUSE,MEMURY P.O.KOTTAYAM.** **BY ADVS. SRI.B.S.SWATHY KUMAR SMT.ANITHA RAVINDRAN SRI.HARISANKAR N UNNI S.SREEKUMAR** ## **RESPONDENT/S:** - **1 THE DEPUTY DIRECTOR OF DAIRY DEVELOPMENT OFFICE OF THE DEPUTY DIRECTOR OF DAIRY DEVELOPMENT,KOTTAYAM,PIN 686 001** - **2 THE MANJOOR INDUSTRIAL MILK CO-OPERATIVE SOCIETY K 29 (D), KURUPPANTHARA,MANJOOR P.O.KOTTAYAM PIN 686 603,REPRESENTED BY ITS SECRETARY** - **3 THE DAIRY EXTENSION OFFICER, MANJOOR P.O.KOTTAYAM,686 603** - **4 THE STATE CO-OPERATIVE ELECTION COMMISSION,** WPC.Nos. 40146, 40933 and 42580 of 2018 6 **CO-BANK TOWERS,VIKAS BHAVAN P.O,THIRUVANANTHAPURAM,PIN 695 033** **5 THE ELECTORAL OFFICER/ASSISTANT DIRECTOR OF DAIRY DEVELOPMENT, EERAYILKADAVU,KOTTAYAM,ELECTION TO THE MANAGING Committee OF THE MANJOOR INDUSTRIAL MILK COOPERATIVE SOCIETY K 29(D),KURUPPANTHARA,MANJOOR P.O.KOTTAYAM PIN 686 603** **6 THE RETURING OFFICER/DAIRY EXTENSION OFFICER, MANJOOR P.O.KOTTAYAM,ELECTION TO THE MANAGING Committee OF THE MANJOOR INDUSTRIAL MILK COOPERATIVE SOCIETY K 29 (D),KURUPPANTHARA, MANJOOR P.O.KOTTAYAM PIN 686 603.** **BY ADVS. GOVERNMENT PLEADER SRI.T.B.HOOD SMT.M.ISHA SRI.AMAL KASHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.04.2019, ALONG WITH WP(C).40933/2018, WP(C).40146/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CR** ## **JUDGMENT** The level of intrusion of judicial review and scrutiny into administrative decisions have bedevilled courts and commentators for decades. However, there is now little doubt that the extant views on this aspect hinges on contextual factors; the distinction familiar to earlier generation – between jurisdictional and nonjurisdictional errors; and between questions of law and facts - being less prominent in contemporary jurisprudence. Therefore, the intensity of jurisdictional review will vary from case to case, depending on the interaction of the relevant contextual determinants. 2. Thus, the bottom line is whether the Authority has acted in the manner legally postulated and sanctioned, rather than whether the decision impugned conforms to the notions of the Court. The imperative obligation of Courts, while acting in jurisdictional review, is to ensure that the competent Authority exercises only those powers that are specifically given to it and that it has acted within the scope and manner of that power. If this is found, courts normally will not interfere with the decision. 3. The afore introductory lines have been necessitated because in the afore cases, being considered jointly on account of the similarity and affinity of the facts involved, this Court is inexorably persuaded to set aside the orders impugned, since they WPC.Nos. 40146, 40933 and 42580 of 2018 8 clearly fail on the touchstone of the afore essential attributes; as I will explain after recording the factual scenario, as gathered from the pleadings available. 4. These writ petitions have been filed by the members of the Managing Committee of a Co-operative Society by name, Manjoor Industrial Milk Co-operative Society (hereinafter referred to as “the Society” for short). 5. While the writ petitioners in WP(C). No. 40933/2018 and W.P.(C).No.42580/2018 are four of the elected members of the Managing Committee, by names Sri. C.M.George, Sri.K.M.Raju, Sri.Mathew Paul and Smt.Ruby Robert, who will hereinafter be referred collectively as the “elected members”; the writ petitioners in WP(C).No. 40146/2018, Sri.V.C.Johan and Sri.Xavier, are the nominated/co-opted members of the said Committee, who, for ease of reference, will be herein-after referred to as “Nominated Members”. 6. Essentially, in all these cases, the challenge impelled is against certain orders issued by the Deputy Director of Dairy Development, which Authority is admittedly WPC.Nos. 40146, 40933 and 42580 of 2018 9 vested with all the powers of a Joint Registrar of Co-operative Societies with respect to the Society in question, rescinding a resolution adopted by the Society, as per which the Nominated Members were co-opted to its Managing Committee after accepting the resignations of one of the Elected Members, Sri.Mathew Paul and of another member by name Sri.P.F.Jose; then further disqualifying all the Elected Members from the membership of the Managing Committee; and consequently, appointing a Part-Time Administrator under Section 33(1) of the Kerala Co-operative Societies Act (herein after referred to as “KCS Act” for short), to be in charge of the Society. 7. Before I enter into the consideration of the various contentions of the parties, a compendious look into the essential facts involved is necessary, so as to understand why matters have now reached the situation as are presented in these writ petitions. 8. The Society has an elected Managing Committee of 11 members and it came into office on 30/03/2015. However, about a year later, one of the members died and in WPC.Nos. 40146, 40933 and 42580 of 2018 10 the subsequent year, another member was found disqualified. Therefore, the strength of the membership came down to nine. While so, on 20/12/2017, two other members resigned, thus bringing the strength further down to seven; and presumably, therefore, to tide over the resultant predicament, on 21/12/2017, Sri.C.M.George (petitioner in WP(C).No. 42580/2018) and another person by name Sri.Pauline Gervasis were nominated, thus enhancing the strength of the Managing Committee to nine. 9. That being so, it appears that certain complaints had been received by the Deputy Director of Diary Development from a person by name Sri. Bright Thomson, respondent in W.P.(C).No.40933/2018, who accused that there was large scale adulteration of the milk supplied by the Society and that its member-farmers were being given much lower remuneration than what they were entitled to. He further complained that the elected members had no cows and had not measured milk for several months prior to their election and therefore, that they are not eligible to continue as members of the Managing Committee. WPC.Nos. 40146, 40933 and 42580 of 2018 11 10. It transpires that these complaints were investigated into by the Manjoor Dairy Development Officer and that by a report, dated 04/01/2018, it was found that the adulteration of milk was on account of the fact that the bottles were not properly dried and that the farmers was given only Rs.35.86/- per litre by the society. The report also stated that the complainant against the elected members was tenable and resultantly recommended further action. On the basis of this report, it appears that a show-cause notice was issued to the elected members and to another member by name Sri.P.F Jose. The pleadings on record reveals that the elected members thereupon filed WP(C).No.2674/2018 before this Court, challenging the above show-cause notice, which was disposed of by this Court through a judgment, dated 15/10/2018, directing the Competent Authority to hear the petitioners therein before taking a final decision. 11. However, even before the above mentioned writ petition had been disposed of on 10.10.2018, Sri.C.M. George, the petitioner in WP(C) No. 42580/2018 and the afore named Sri.P.F. Jose tendered their resignation from the Managing WPC.Nos. 40146, 40933 and 42580 of 2018 12 Committee of the Society and their resignations were placed by the President of the Society before the said Committee in its meeting held on 12/10/2018, along with a proposal to coopt the Nominated Members. The resolution adopted by the Committee namely, resolution No.84 dated 12.10.2018, shows that it had unanimously accepted the resignations of Sri.C.M.George and Sri. P.F. Jose and had resolved to co-opt the Nominated Members, namely, Sri.V.C. John and Sri.Xavior, as members of the Committee, thus, maintaining its effective strength at nine, as on that date. 12. The above being thus, the materials available on record show that, based on the directions of this Court in WP(C) No. 2674/2018, a hearing of the elected members (and not of the Nominated Members) was conducted later by the Deputy Director of Diary Development and that subsequently, two orders were issued by the said Authority on 05/12/2018; the first one, bearing No. D3137/2017, rescinding resolution No.84 adopted by the Managing Committee on 12/10/2018, whereby, the resignations of Sri.P.F Jose and Sri.C.M.George were accepted and the nominations of the Nominated WPC.Nos. 40146, 40933 and 42580 of 2018 13 Members, namely, Sri.V.C.John and Sri.Xavior, were sanctioned by the Committee; and the second one, bearing No. D/3137/2017/1, disqualifying the elected members, namely Sri.K.M. Raju, Sri. Mathew Paul, Smt. Ruby Robert and Sri.C.M.George along with Sri.Jose, not merely from the membership of the Managing Committee but also from the primary membership of the Society. These orders were then followed by a subsequent order on 07/12/2018, bearing No. D- 3137/2017/2, finding that, on account of the disqualification of the afore members, the Managing Committee has lost its quorum and therefore, ordering the appointment of a PartTime Administrator to take charge of the affairs of the Society, under Section 33(1) of the KCS Act. 13. The afore three orders are impugned in these writ petitions on various grounds; but primarily that they have been issued without consideration of the relevant and germane factors and in gross violation of the principles of natural justice as well as the statutory provisions of the KCS Act. 14. I have heard Sri. B.S.Swathi Kumar, the learned WPC.Nos. 40146, 40933 and 42580 of 2018 14 counsel appearing for the petitioner in WP(C).No.42580/2018 and Sri.P.C. Sasidharan, the learned Standing Counsel appearing for the petitioners in WP(C) No. 40933/2018 and WP(C).No. 40146/2018; Sri.T.B.Hood, the learned counsel appearing for the Society; Sri.P.C.Haridas, the learned counsel for respondent No.4 in W.P.(C).No.40933 of 2018; Sri.K.M.Sathyanatha Menon, the learned counsel appearing for the Part Time Administrator of the Society and Sri.Bimal.K.Nath the learned Senior Government Pleader appearing for the official respondents in all these cases. 15. Sri.B.S.Swathy Kumar, the learned counsel for the petitioner in W.P.(C).No.42580 of 2018, commenced his submissions by asserting that the first order passed by the Deputy Director, namely, order bearing No.D/3137/2017 dated 05.12.2018 (which will herein after referred to as the **“Rescission Order”** for convenience) and the second order, namely, order bearing No.D/3137/2017/1, dated 05.12.2018 (which will herein-after be referred to as the **“Disqualification Order”** for ease) have been issued by the Competent Authority without requisite application of mind WPC.Nos. 40146, 40933 and 42580 of 2018 15 and with the sole intention of effectuating supersession of the Committee one way or the other. He says that this is manifest from the manner in which his client and Sri.P.F.Jose have been disqualified from the membership of the Managing Committee, which he contends is impermissible and totally unlawful, since they had resigned from the membership of the Committee as early as on 10.10.2018, by tendering their resignations to the President of the Managing Committee of the Society. He says that, therefore, going by the Explanation to Section 33 of the KCS Act, both of them would be statutorily deemed to have resigned with effect from that date and that there was, thereafter, no question of them continuing in the Managing Committee. He says that, however, the Deputy Director appears to have understood otherwise and has erroneously issued the Rescission Order, ostensibly rescinding resolution No.84 of the Society, dated 12.10.2018, thus effectively rejecting the resignations of Sri.C.M.George and Sri.P.F.Jose and artificially deeming them to be members of the Committee. 16. Sri.Swathikumar then points out that the primary WPC.Nos. 40146, 40933 and 42580 of 2018 16 reason shown in the Rescission Order is that the persons who had been given the afore mentioned show-cause notice on 17.01.2018, namely, Sri.K.M.Raju, Sri.Mathew Paul and Smt.Ruby Robert, had taken part in the meeting of the Managing Committee, leading to the adoption of resolution No.84 on 12.10.2018, but that they cannot be deemed to be members of the Committee and consequently, that it had lost its quorum in the said meeting. He contends that this reasoning is completely flawed and that merely because the said members had been issued with a show-cause notice, they would not lose their membership automatically and that this exhibits the questionable nature of the Rescission Order. 17. Sri.B.S.Swathi Kumar then adds that three other reasons are also shown in the Rescission Order for rescinding the resolution of the Committee dated 12.10.2018, namely, that the notice for the said meeting did not contain a date; that the members of the Committee were not given 7 days clear notice; and that the resolution was not proposed by one member and seconded by another before it was accepted. He asserts that these reasons are totally irrelevant, since none of WPC.Nos. 40146, 40933 and 42580 of 2018 17 the members of the Committee had raised any such objections, leading to the inescapable contention that none of them found any prejudice having been caused to them on account of these omissions, even if true, since the afore procedural requirements, stated to have been infracted, are only for the protection of the members and would not, in any manner, diminish the legal worth of the resolution. 18. Sri.B.S.Swathy Kumar, then proceeds to submit that after rescinding the resolution, the Deputy Director went on to simultaneously consider the question of disqualification of the members and that even though his client and Sri.P.F.Jose had tendered their resignations from the Managing Committee on 10.10.2018, he still held them disqualified, not merely as members of the Managing Committee but also as primary members of the Society. The learned counsel adds that even assuming that his client had obtained any disqualification to continue as a member of the Managing Committee, his primary membership could not have been set aside, particularly when the show-cause notice, dated 17.01.2018, was only with respect to his membership in the WPC.Nos. 40146, 40933 and 42580 of 2018 18 Managing Committee and nothing else. He, therefore, prays that the Rescission Order be set aside and that his client be declared to have resigned from the Managing Committee of the Society with effect from 10.10.2018. 19. Sri.P.C.Sasidharan, the learned counsel appearing for the petitioners in W.P.(C).No. 40146/2018 and 40933/2018, affirms the afore submission of Sri. B.S Swathi Kumar and supplements it by asserting that the Disqualification Order has been issued in blatant violation of every principle of law as also the imperative provisions of the KCS Act and Rules. He submits that his clients, Sri.K.M.Raju, Sri.Mathew Paul and Smt.Ruby Robert, could not have been disqualified, either from the membership of the Managing Committee or from that of the Society, because they had produced all relevant documents and materials before the Deputy Director of Diary Development to establish that they are fully eligible to continue in both such capacities; and accusatorily adds that the said Authority, however, in confutative urgency, went on to declare them disqualified even from the primary membership of the Society merely stating that they have not produced WPC.Nos. 40146, 40933 and 42580 of 2018 19 sufficient documents to prove their membership. 20. After contending as above, Sri.P.C.Sasidharan then submitted that the Nominated Members, namely, Sri.V.C.John and Sri.Xavier, who are the petitioners in W.P. (C).No.40146/2018, were not even heard when the Rescission Order was issued, rescinding the resolution of the Society dated 12.10.2018 which had accepted their nominations and, prays that both these orders be set aside, as also the consequential 3[rd] order, issued on 07.12.2018, under Section 33(1) of the KCS Act, appointing a Part Time Administrator for the Society. 21. Sri.T.B.Hood, the learned Standing Counsel appearing for the Secretary of the Society, submits that he adopts all the submissions made earlier by Sri.B.S.Swathy Kumar and Sri.P.C.Sasidharan and asserts that there was absolutely no requirement for the Deputy Director of Diary Development to have issued the Rescission Order because none of the members mentioned therein had suffered any inhibition to continue merely because a show-cause notice, dated 17.01.2018, asking why action for disqualification WPC.Nos. 40146, 40933 and 42580 of 2018 20 against them be not taken, had been issued to them. He says that it is now well settled in law that unless a member is expressly disqualified under Rule 44(3) of the KCS Rules, he will continue to be a member of the Managing Committee. He thus contends that the reasons cited in the Rescission Order are completely irrelevant and that it is illegal and unlawful. He concludes by asserting that the Managing Committee of the Society had, therefore, not lost quorum on 12.10.2018 and consequently that the third order under Section 33(1) of the KCS Act is also liable to be set aside by this Court. 22. Sri.P.C.Haridas, the learned counsel appearing for the original complainant-Sri. Bright Thomson, the 4[th] respondent in W.P.(C).No.40933 of 2018, began his submissions refuting the contentions of the petitioners and supporting the impugned orders issued by the Deputy Director of Diary Development by contending that the petitioners have themselves admitted in their objections before the said Authority that they have no cows, since they died due to diseases and that they had not measured milk for the requisite period, as is required under the bye-laws, to WPC.Nos. 40146, 40933 and 42580 of 2018 21 entitle them to continue as the members of the Managing Committee. He says that the Deputy Director has, therefore, acted well within his jurisdiction in issuing the orders impugned herein and prays that they be not interdicted. 23. The learned Senior Government Pleader, Sri.Bimal K.Nath, made his submissions as the last counsel, in vehement support of the three orders that are impugned in these writ petitions. According to him, the petitioners herein are not eligible to continue as the members of the Managing Committee of the Society, since they have suffered a disqualification under Rule 44(1) of the KCS Rules and under the Bye-Laws of the Society, which provide that only a person who has at least one living cow and who has measured milk regularly for at least three months is eligible to be a producermember entitled to offer himself as a member of the said Committee, because they have admitted before the Deputy Director that they lack both these qualifications. 24. The learned Government Pleader says that the proceedings against the petitioners began on the basis of a complaint given by Sri.Bright Thomson and that a report was WPC.Nos. 40146, 40933 and 42580 of 2018 22 obtained by the Deputy Director from the concerned Diary Development Officer; wherein, it was found that the allegations made by Sri.Bright Thomson were genuine. He submits that it was, therefore, that a notice proposing disqualification was issued to Sri.K.M.Raju, Sri.Mathew Paul, Sri.P.F.Jose, Sri.C.M.George and Smt.Ruby Robert on 17.01.2018 and that on receipt of this notice, these individuals approached this Court by filing W.P. (C).No.2674/2018, but that even before the said writ petition had been disposed of, Sri.C.M.George and Sri.P.F.Jose tendered their resignations on 10.10.2018, solely to defeat all further consequences under the said show-cause notice. He says that the Deputy Director was, thus well within his right to rescind the resolution of the Society, dated 12.10.2018, which had accepted such resignations and that it is a mere consequence thereof that the co-option of Sri.P.C.John and Sri.Xavier will also have to fail, because they were nominated only on account of the resignation of Sri.C.M.George and Sri.P.F.Jose. 25. The learned Senior Government Pleader continued WPC.Nos. 40146, 40933 and 42580 of 2018 23 to submit that since, concededly, Sri.K.M.Raju, Sri.Mathew Paul, Sri.P.F.Jose, Sri.C.M.George and Smt.Ruby Robert had no cows and did not measure milk for the minimum period that is mandated under the Bye-Laws, they are certainly disqualified to be the members of the Managing Committee; explaining further that since the Deputy Director also found, during enquiry, that none of them had paid the differential value of the shares allotted to them, they were also ineligible to continue as primary members of the Society and, therefore, that invoking powers under Section 16(4) of the KCS Act, these members were rightly removed from such membership. He thus supports all the three orders asserting that they are irreproachable and without fault. 26. From the submissions of the rival parties recorded as above, it is luculent that the sequence of events in these cases have its genesis in a complaint made by Sri.Bright Thomson before the Deputy Director of Diary Development. This complaint was caused to be investigated by the Deputy Director through the concerned Diary Development Officer, who submitted a report, dated 04.01.2018, which then, WPC.Nos. 40146, 40933 and 42580 of 2018 24 persuaded the Deputy Director to issue a show-cause notice to Sri.K.M.Raju, Sri.Mathew Paul, Sri.P.F.Jose, Sri.C.M.George and Smt.Ruby Robert asking them to show cause why they be not removed from the membership of the Managing Committee of the Society. As seen earlier, this notice was challenged by them before this Court by filing W.P. (C).No.2674/2018, which was pending till 15.10.2018, on which day, it was disposed of directing the Deputy Director to take a final decision on the notice, after hearing the petitioners. However, by then Sri.P.F.Jose and Sri.C.M.George had resigned from the membership of the Managing Committee on 10.10.2018, which resignations were accepted by the Committee on 12.10.2018, leading to the co-option of Sri.P.C.John and Sri.Xavier on the same day. The relevant resolution of the committee, namely, bearing No.84 dated 12.10.2018, is available on record as Exhibit-P3, along with W.P.(C).No.40146/2018, which indubitably shows to have been adopted unanimously. 27. When I evaluate the impugned orders in the afore factual background, it becomes evident that the reasons WPC.Nos. 40146, 40933 and 42580 of 2018 25 stated in the Rescission Order, that at least three of the members of the committee were ineligible to participate in its meeting merely because they had already received the showcause notice aforementioned and further that the notice of the meeting had certain deficiencies, cannot, by any stretch of imagination, be legally found to offer justifiable cause for rescinding the aforementioned resolution under Rule 176 of the KCS Rules. This is because, it is now well established in law, going by the judgment of a Division Bench of this Court in _**Rajagopalan v. Baby Alex [1994(2) KLT 974],**_ which was followed by a learned Judge of this Court in _**Abdulla Haji v. Joint Registrar, Co-operative Society (G) [2009(4) KLT SN.16],**_ that until a person is expressly ordered to have been disqualified under Rule 44(3) of the KCS Rules, he would continue to be in office and, therefore, eligible to act as a member of the Managing Committee. 28. In the case at hand, not merely were there no such disqualification orders against any of the petitioners; but the only allegation is that three among them had been issued with a show-cause notice under Section 44 of the KCS Act. I am WPC.Nos. 40146, 40933 and 42580 of 2018 26 certain that this is not sufficient to render them ineligible to participate in the meeting of the Managing Committee and for that reason, the foundational basis of the Rescission Order completely collapses. 29. Further, the other reasons stated therein, _apropos_ the notice of the meeting and the resolution being not proposed by one member and seconded by another, are completely irrelevant in the absence of any member of the Committee raising a complaint on those lines, since these discrepancies, even if true, would concern only the members of the Committee and it is only if any of them had made any such accusation, could the Deputy Director have adverted to them. Pertinently in these cases, not only are there no such complaints but it is clear from the resolution that it was adopted unanimously by all the members who were present in full strength; and, therefore, the factum of it having been not proposed by one member and seconded by another or otherwise loses all its significance. 30. The Rescission Order also suffers from another grave legal infirmity because what it has effectively done is to WPC.Nos. 40146, 40933 and 42580 of 2018 27 reject the resignations of Sri.C.M.George and Sri.P.F.Jose and to artificially deem them to be continuing as members of the Managing Committee. This has been done by the Deputy Director of Diary Development by setting aside the resolution of the Managing Committee, which had accepted the resignations, and then holding that in the absence of such acceptance, the resignations are ineffective. Ingenious as it may look at first glance, this stand of the Authority is legally flawed, when tested against the explanation to Section 33 of the KCS Act which reads as under:- **“[Explanation-** _For the purpose of this sub-section, a tender of resignation by a member of the Committee shall have the effect of terminating his membership from the Committee.”]_ 31. As is incontestable from the afore prescription, when a member tenders his/her resignation from the membership of the Managing Committee, it becomes effective forthwith, without the requirement of it being formally accepted, unless he/she alleges and establishes that such tender or resignation was caused to be obtained through WPC.Nos. 40146, 40933 and 42580 of 2018 28 fraud duress or coercion. This position is no longer _res integra_ , it having been declared by a learned Division Bench in _**Divakaran v. Joint Registrar, Co-operative Society [2014(4) KLT 297]** ._ It is no one's case in these W.Ps that Sri.C.M.George or Sri.P.F.Jose has raised any such objection; and on the contrary, they vehemently maintain that they had resigned voluntarily. The Deputy Director of Diary Development, therefore, obtained no competence in law to have rejected the resignations of these two persons from the Managing Committee, as has been indirectly done by him through the Rescission Order. 32. I, therefore, cannot find favour with the Rescission Order, namely, Order No. D/3137/2017 dated 05.12.2018, which has been produced as Exhibit-P5 in W.P. (C).No.40146/2018. 33. Once I conclude so, my attention then must go to the next order, which is the Disqualification Order issued simultaneously on the same day as the Rescission Order. This order proceeds on the premise that since the resignations of Sri.P.F.Jose and Sri.C.M.Goerge had been rescinded through WPC.Nos. 40146, 40933 and 42580 of 2018 29 the Recession Order, they would be construed to continue as members of the Managing Committee, not-withstanding their resignation and, therefore, that they are still amenable to the enquiry relating to their disqualification under Rule 44 of the KCS Rules, if the relevant factors are found against them. 34. A reading of this order would indicate that even though the earlier show-cause notice, dated 17.01.2018, was issued to the elected members under Rule 44 of the KCS Rules, which admittedly relates only to the issue of disqualification as a member of the Managing Committee of the Society, what has been done by the Deputy Director of Diary Development is to disqualify all of them even from the primary membership of the Society. The factual reasons for doing so are also recorded therein, that the elected members had conceded before the Deputy Director that their cows had died and that they , therefore, could not measure milk for the minimum number of months, as are requisite as per the ByeLaws. The Deputy Director has further recorded in the said order that, at the time when the inspection was conducted by the Diary Development Officer, the elected members had lied WPC.Nos. 40146, 40933 and 42580 of 2018 30 that their cows have gone for gracing but that in their objections they have conceded that these statements were not true. 35. Be that as it may, even assuming that these allegations are true, it is incomprehensible how the elected members could have been disqualified even from the primary membership of the Society under Section 16(4) of the KCS Act, particularly when it is conceded before me that the showcause notice, dated 17.01.2018, was issued solely under Rule 44 of the KCS Rules. That said, however, I am aware that this appears to have been done because it is alleged that the elected members did not take the differential share value in spite of necessary opportunity and that they did not produce any document to substantiate their primary membership in the Society. 36. I am afraid that the above findings and conclusions in the Disqualification Order is egregiously improper, since it is admitted that the members were validly elected to the Managing Committee, thus making it irrefragable that they were primary members of the Society and therefore, they WPC.Nos. 40146, 40933 and 42580 of 2018 31 could have been removed from such membership only after following the mandatory procedure under Section 16(4) of the KCS Act, which concededly had not been done. Further, any such order could have been issued only by the Registrar of Co-operative Societies and not by the Deputy Director of Diary Development, who is only a Joint Registrar. Add to this is the undisputed fact that there is nothing on record to show that the Society had issued the statutorily mandated notice to any of its members to take the differential share value, if any, and hence, even if the elected members had not subscribed to such enhanced share value, if any, they cannot be removed from the primary membership of the Society in such fashion. 37. The surviving question is whether the elected members are disqualified under Rule 44 of the KCS Rules, from the membership of the Managing Committee of the Society for the factual reasons stated in the Disqualification Order. However, this being a matter unequivocally in the realm of facts, requiring assessment of factual circumstances and materials, it would not be possible for this Court to state on it affirmatively at this stage. I say this because, it is the WPC.Nos. 40146, 40933 and 42580 of 2018 32 specific case of both the learned counsel for the petitioners that the factual narration made in the Disqualification Order is incorrect and that sufficient opportunity had not been given to their clients by the Deputy Director of Diary Development to establish their version and case. I am, therefore, of the firm view that the disqualification of the petitioners in W.P. (C).Nos.42580/18 and 40933/18, as members of the Managing Committee of the Society, under Rule 44 of the KCS Rules, requires to be reconsidered by the competent Authority in terms of law, after affording necessary opportunity to them. 38. That finally leads me to the question of the validity of the third order, namely, the order issued under 33(1) of the KCS Act. The answer on this issue is more or less obvious without further expatiation because, since I have already found the Rescission Order and the Disqualification Order to be without legal favour, this order, which is a mere consequential one, would also have to go. Obviously, therefore, the Administrative Committee now in charge of the affairs of the Society (this Committee having been placed in office under interim orders of this Court, in which the Part WPC.Nos. 40146, 40933 and 42580 of 2018 33 Time Administrator is the Convener), will have to cease and the original Managing Committee will be allowed to function as per law for the remaining period of their term, unless the exercise under Rule 44 of the KCS Rules, ordered above, finds them unqualified to continue. 39. In the afore circumstances, I order these writ petitions and set aside the 'Rescission Order', bearing No. D/3137/2017 dated 05.12.2018, which has been appended as Exhibit-P5 in W.P.(C).No. 40146/2018, and consequently affirm the resignations of Sri.P.F.Jose and Sri.C.M.George from the membership of the Managing Committee of the Society with effect from 10.10.2018, as also the resultant nominations of Sri.V.C.John and Sri.Xavier, the petitioners in W.P. (C).No.40146/2018, to the said Committee. As regards the membership of the petitioners in W.P.(C).No. 40933/2018 to the Managing Committee is concerned, the “Disqualification Order”, bearing No.D3137/2017/1 dated 05.12.2018, which has been produced as Exhibit-P4, will also stand set aside to that extent; however, reserving liberty to the Deputy Director of Diary Development to reconsider this aspect and to pursue WPC.Nos. 40146, 40933 and 42580 of 2018 34 necessary action against them, if so required, in terms of law, following due procedure and after affording necessary opportunity of being heard to the petitioners therein. 40. Needless to say, since the original show-cause notice, dated 17.01.2018, was exclusively with respect to the alleged disqualification of the petitioners in W.P.(C).No. 42580/18 and W.P.(C).No.40933/18 to continue as the members of the Managing Committee, the 'Disqualification Order', namely, order bearing No. D/3137/2017/1 dated 05.12.2018, available on record as Exhibit-P4 in W.P. (C).No.40933/18 and as Exhibit-P9 in W.P.(C).No.42580/18, will stand set aside to the extent to which it has removed these petitioners from the primary membership of the Society and consequently, such membership would remain undisturbed, unless specific statutory processes for such purpose is initiated and concluded in terms of Section 16(4) of the KCS Act, in future, if so warranted. 41. Axiomatically, the order of the Deputy Director, bearing No.D/3137/2017/2 dated 07.12.2018, issued under Section 33(1) of the KCS Act, appointing a Part-time WPC.Nos. 40146, 40933 and 42580 of 2018 35 Administrator/Administrative Committee, would also stand set aside, since, viewed from any angle, the elected Managing Committee had not lost quorum as on that date; and resultantly, the said committee, with the co-opted members, will be allowed to function as per law for the remaining period of their term. These writ petitions are thus ordered. Sd/- Dxy **DEVAN RAMACHANDRAN JUDGE** WPC.Nos. 40146, 40933 and 42580 of 2018 36 ## **APPENDIX OF WP(C) 40146/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RESIGNATION LETTER OF C.M.GEORGE. EXHIBIT P2 TRUE COPY OF THE RESIGNATION LETTER OF P.F.JOSE. EXHIBIT P3 TRUE COPY OF THE NOTICE OF MEETING. EXHIBIT P4 TRUE COPY OF THE RESOLUTION. EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS DATED 5.12.2018. EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS DATED 7.12.2018.** WPC.Nos. 40146, 40933 and 42580 of 2018 37 ## **APPENDIX OF WP(C) 40933/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE show-cause NOTICE ISSUED BY THE 2ND RESPONDENT ON 17.01.2016** **EXHIBIT P2 TRUE COPY OF THE EXPLANATION DATED 22/01/2018 EXHIBIT P3 TRUE COPY OF THE WRITTEN NOTES OF SUBMISSION EXHIBIT P4 TRUE COPY OF THE ORDER DATED 05.12.2018 ISSUED BY THE 1ST DATED EXHIBIT P5 TRUE COPY OF THE IDENTITY CARDS OF THE 1ST PETITIONER. EXHIBIT P6 TRUE COPY OF THE IDENTITY CARDS OF THE 2ND PETITIONER. EXHIBIT P7 TRUE COPY OF THE IDENTITY CARDS OF THE 3RD PETITIONER.** WPC.Nos. 40146, 40933 and 42580 of 2018 38 ## **APPENDIX OF WP(C) 42580/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTICE NO D/3137/17 DATED 17.1.2018 ISSUED BY THE 1ST RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE BYE LAWS OF THE 2ND RESPONDENT** **EXHIBIT P3 TRUE COPY OF THE EXPLANATION FILED BY THE PETITIONER AND OTHERS DATED 22.1.2018** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 25.1.2018 IN WPC NO 2674/2018** **EXHIBIT P5 TRUE COPY OF THE ARGUMENT NOTE FILED BY THE PETITIONER & OTHERS DATED 21.11.2018 EXHIBIT P6 TRUE COPY OF THE INSURANCE CERTIFICATE OF THE COW DATED 8.1.2018 EXHIBIT P7 TRUE COPY OF THE CATTLE INSURANCE PROPOSAL FROM ISSUED BY THE VETERINARY SURGEON,MEMURI EXHIBIT P8 TRUE COPY OF THE PHOTOGRAPH COW IN THE COWSHED ALONG WITH THE PETITIONER EXHIBIT P9 TRUE COPY OF THE ORDER NO D/3137/2017/1 DATED 5.12.2018 EXHIBIT P10 TRUE COPY OF THE ELECTION NOTIFICATION NO E(2) 9869/2018/SCEC DATED 12.12.2018 EXHIBIT P11 TRUE COPY OF THE MILK PURCHASE REPORT DATED 24.12.2018 ISSUED BY THE 2ND RESPONDENT EXHIBIT P12 TRUE COPY OF THE IDENTITY CARD OF THE PETITIONER ISSUED BY THE 2ND RSPONDENT**