V. Ramesan, President, Kerala State Scheduled Caste/Scheduled Tribe Development Federation, Thiruvananthapuram v. Joint Registrar of Co-operative Societies (General), Malappuram; Prakasan Kalady, Member, Scheduled Caste/Scheduled Tribe Advisory Board, Malappuram; The Registrar of Co-operative Societies, Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 12TH DAY OF DECEMBER 2014/21ST AGRAHAYANA, 1936 ## W.A.No. 1855 of 2014 IN WP(C).23905/2013 ----------------------------------------------------------AGAINST THE JUDGMENT IN WP(C) 23905/2013 of HIGH COURT OF KERALA DATED 14.11.2014 ## APPELLANT/PETITIONER: V. RAMESAN PRESIDENT KERALA STATE SCHEDULED CASTE/SCHEDULED TRIBE DEVELOPMENT FEDERATION THIRUVANANTHAPURAM. BY ADV. SRI.P.N.MOHANAN ## RESPONDENTS: 1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), MALAPPURAM -676 505 2. PRAKASAN KALADY, MEMBER SCHEDULED CASTE/SCHEDULED TRIBE ADVISORY (BOARD) P.O. KALADY, MALAPPURAM - 679 562. 3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM-695 001. R2 BY ADV. SRI.GEORGE SEBASTIAN R BY SRI. JOICE GEORGE R BY SPL. GOVERNMENT PLEADER SRI.D.SOMASUNDARAM THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & ANIL K. NARENDRAN, JJ. 'CR'** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **W.A.No.1855 OF 2014** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th ] day of December, 2014 ## **JUDGMENT** ## _**Antony Dominic, J.**_ The appellant filed Writ Petition No.23905/2013 seeking to challenge Ext.P5, an order passed by the first respondent under Rule 44(1)(f) of the Kerala Co-operative Societies Rules, 1969 (for short 'the Rules') disqualifying from the membership in the committee of the Perinthalmanna Scheduled Caste/Scheduled Tribe Co-operative Society (hereinafter referred to as 'the Primary Society'). Being aggrieved by the dismissal of the Writ Petition, this appeal is filed. 2. We heard the counsel for the appellant, learned Special Government Pleader appearing for the respondents 1 and 3 and the learned counsel appearing for the second respondent. 3. Briefly stated the facts of the case are that, the appellant is a paid employee of the Perinthalmanna Urban Co-operative Bank Limited. In the election that was held on 10.11.2011, he was W.A.No.1855 OF 2014 : 2 : elected to the Managing Committee of the Primary Society. Being a member of the Managing Committee of the Primary Society, he was nominated as the delegate under Rule 44 A to the Kerala State Scheduled Caste/Scheduled Tribe Development Corporation (hereinafter referred to as 'the Apex Society'). In the election that was held in the Apex Society on 4.2.2013, he was elected as the President of the Apex Society. 4. Under Rule 44(1)(f) of the Kerala Co-operative Society Rules, no member of the society shall be eligible for being elected or appointed as a member of the committee of the society under Section 28, if he is a paid employee of the society or any other society. First proviso to this Rule states that the Registrar may by general or special order exempt any society or any person from the operation of clause (f) for such period to be specified by him in the order of exemption. 5. Ext.P1 is an order passed by the first respondent on 8.2.2013, granting exemption to the appellant from Rule 44(1)(f) in the election that was held on 5.2.2013 to the committee of the Apex W.A.No.1855 OF 2014 : 3 : Society. This order has been passed based on a resolution passed by the Primary Society and the recommendation made by the Assistant Registrar. This order also reflects the satisfaction of the first respondent that the exemption would not prejudicially affect the functioning of the Urban Bank, where he is employed. 6. Subsequently referring to a complaint that was made by the second respondent to the Minister for Co-operation which was endorsed to the first respondent, Ext.P2 show cause notice was issued to the appellant on 9.1.2013 where the appellant was called upon to show cause why he shall not be disqualified under Rule 44(1) (f) from his membership in the committee of the Primary Society. 7. Ext.P4 is the objection filed by the appellant where he interalia contended that the proviso to Rule 44(1)(f) empowered the Registrar to grant exemption to any person from the operation of Clause 44(1)(f) itself and that therefore in view of Ext.P1 order he stands exempted from Rule 44(1)(f) itself. In other words, what he contended was that the exemption granted by Ext.P1 order will enure to his benefit in so far as his membership in the committee of the W.A.No.1855 OF 2014 : 4 : Primary Society concerned also. He also disputed the very maintainability of the complaint made by the second respondent referring to which Ext.P2 show cause notice was issued. 8. Subsequently, he was heard by the Joint Registrar on 21.9.2013. Thereafter, Joint Registrar passed Ext.P5 order disqualifying the petitioner under Rule 44(1) (f) from the membership of the committee of the Primary Society, he being a paid employee of a society. It was in these circumstances, the Writ Petition was filed. 9. In the judgment under appeal, the learned Single Judge held that Ext.P1 order of exemption only exempts the appellant from Rule 44(1)(f), with reference to his membership in the Apex Society and that he having not obtained exemption from the said Rule in so far as his membership in the Primary Society is concerned, Ext.P5 is valid. It is this judgment which is under challenge before us. 10. The issue that arises for consideration in this appeal is whether Ext.P1 order of exemption issued by the Registrar under the first proviso to Rule 44(1)(f) will enure to the benefit of the appellant W.A.No.1855 OF 2014 : 5 : in so far as his membership in the committee of the Primary Society is concerned. Rule 44(1)(f) and the first proviso thereto, being relevant, are extracted below for reference: _“44. Disqualification of membership of committee - (1) No member of the society shall be eligible for being elected, or appointed as a member of the committee of the society under S.28 if he_ **==> picture [204 x 7] intentionally omitted <==** _(f) is a paid employee of the society or of any other society;_ _Provided that the Registrar may by general or special order exempt any society or any person from the operation of this clause for such period to be specified by him in the order of exemption; or_ _Provided further that this clause shall not apply in the case of an Employee's Co-operative Society.”_ 11. Reading of this Rule shows that 44(1)(f) places an absolute disqualification on a paid employee of a society or of any other society who is a member of the society to be elected or appointed as a member of the committee of that society. However, the first proviso to this Rule empowers the Registrar to pass general or special order exempting any society or any person from the operation of Clause (f) W.A.No.1855 OF 2014 : 6 : for such period to be specified by him in the order of exemption. 12. Admittedly, the appellant is a paid employee of the Perinthalmanna Urban Co-operative Bank. Therefore, he suffered the disqualification under Rule 44(1)(f) as on 10.11.11, when he was elected to the committee of the Primary Society and on 5.2.2013 when he was elected as President of the Apex Society. However, on 8.2.2013, the Registrar exercised his power under first proviso to Rule 44 (1)(f) and issued Ext.P1 order, the operative portion of which reads thus: പ�ര�നല�ണ സഹകരണ അര�ന ��ങ�പ� ജ�ന�യര അക�ണന� ര (ശ� വ�.രമ�ശന� മകരള സ$സ�ന �ട�കജ�ത� - �ട�കവര) വ�കസന പ*ഡമ,ഷപന ഭരണസ��ത�യ�മ�ക� 5.2.2013ന� നടക�ന�ര�ക 5ന പതരപ7ട 5പ�ല �തര�ക5നത�ന� 1969പ� മകരള സഹകരണ സ$ഘ$ ന�യ�$ ചട$ 44(1)(F) (�ക�ര$ ഇളവ� 04.02.2013 �5തല ക��@����AമB�പട അന5വ�ദ$ നലക�പക�ണ� ഇത�ന�ല ഉBരവ�ക5ന5. 13. Reading of this order shows the exemption granted under the proviso to Rule 44(1)(f) is specifically and expressly in relation to the election that was held on 5.2.2013 to the committee of the Apex Society. Although it is true that it was only because he was a member W.A.No.1855 OF 2014 : 7 : of the Committee of the Primary Society that he could be a delegate under Rule 44A and that he got opportunity to contest the election in the Apex Society, he got exempted from the rigor of Rule 44(1)(f) only by Ext.P1 order. When that exemption is specifically with reference to the election in the Apex Society such an order cannot operate beyond the express terms thereof. In other words, this exemption will not save appellant from disqualification in relation to his election to the Primary Society which was held as early as on 10.11.2011. Therefore, the conclusion on the basis of which Ext.P5 order was issued that the disqualification under Rule 44(1)(f) is attracted in respect of his election to the Primary Society does not suffer from any illegality. 14. Counsel for the petitioner contended that second respondent on whose complaint the proceedings were initiated is a stranger and that such proceedings could not have been initiated at this instance. He referred us to Section 65 of the Act and also the judgments of this Court in _**Panicker Kadavu Consumer Co-op. Society Ltd. v. Registrar of Co-op. Societies [1994 (2) KLT 564]**_ , W.A.No.1855 OF 2014 : 8 : _**Thiruvalla East Co-op. Bank Ltd. v. Joint Registrar of Co-op. Societies and another [ILR 2006 (4) KLT 822]**_ to contend that the enquiry under Section 65 cannot be initiated on the instructions of the Minister or at the instance of a stranger. According to him, these principles should apply with full rigor in so far as Rule 44 as well. 15. It is true that Ext.P2 show cause notice and Ext.P5 order issued by the first respondent makes reference to the complaint made by the second respondent. The fact that such a complaint made was not disowned by the second respondent either. It is true that the second respondent is not a member of the Primary Society. But he is described as a member of Scheduled Caste/Scheduled Tribe Advisory Board from Malappuram district. 16. Reading of Rule 44 shows that proceedings for disqualification can be initiated by the Registrar suo motu or on a complaint made by a member. Although it is true that Exts.P2 and P5 makes reference to the complaint made by the second respondent, who admittedly is not a member of the Primary Society, having regard to the fact that the Registrar himself has power to suo motto W.A.No.1855 OF 2014 : 9 : initiate proceedings, we are inclined to think that the complaint made by the second respondent, even if he is a stranger, need only be taken as one alerting the significance regarding the disqualification of the appellant. If that be so, the proceedings initiated can be taken as one initiated in exercise of the suo motu power. This view we have taken finds support in the decision of this Court in _**Sadasivan K.G. v. Joint Registrar and others [ILR 2008 (1) Kerala 64]**_ . In any case, on merits, since we have already found that the petitioner suffers disqualification as found in Ext.P5 and upheld the order, we are not inclined to come to his rescue accepting this technical ground lest we will be permitting perpetuation of an illegality. 17. Learned counsel for the petitioner then contented that as on the date of initiation of proceedings under Rule 44 the person concerned should be suffering from disqualification. According to him, having regard to Ext.P1 a past disqualification cannot be a reason for issuing Ext.P5 order. We are unable to agree and in fact this contention of the counsel stands answered by the finding of the first point dealt with above. Learned counsel for the petitioner then W.A.No.1855 OF 2014 : 10 : contended that since the Registrar granted exemption by Ext.P1 knowing fully well that he is a member of the committee of the Primary Society and on his satisfaction that exemption would not prejudicially affect the functioning as an employee of the Bank, he being a paid employee therein and as the second respondent is not prejudiced in any manner, his continuance as President in the Apex Society should not be disturbed. We are unable to accept this contention. We have already concluded that in the absence of any exemption with reference to his membership in the committee in the Primary Society, the appellant is disqualified under Rule 44(1)(f). Once disqualification is upheld prejudice canvassed is immaterial. We are not inclined to think that the learned Single Judge has committed any illegality or irregularity for entertaining this appeal. Appeal is dismissed. **ANTONY DOMINIC, Judge** **ANIL K. NARENDRAN, Judge** _jes_