WP(C).No.15959 of 2020 - In the High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 06TH DAY OF AUGUST 2020 / 15TH SRAVANA, 1942** ## **WP(C).No.15959 OF 2020** ## **PETITIONERS:** - **1 E. ABOOBACKER HAJEE AGED 60 YEARS S/O.SHAIK AHAMMED, RESIDING AT S.A.MANZIL, ETHIRTHODU, EDANEER (PO), KASARAGOD DISTRICT, PIN671541.** - **2 BALAKRISHNAN NAIR AGED 65 YEARS S/O.V.KUNHIRAMAN NAIR, RESIDING AT ADUKAM HOUSE, PADI, EDANEER (PO), KASARAGOD DISTRICT, PIN-671541.** - **3 MINI.A. AGED 42 YEARS W/O.CHANDRAN.T.K., RESIDING AT ATHUKUZHI, EDANEER (PO), KASARAGOD DISTRICT, PIN-671541.** - **4 ABDUL RAHIM.C.A AGED 58 YEARS S/O.ABDULLA KUNHI, RESIDING AT THALENGARA HOUSE, ALAMPADI, KASARAGOD DISTRICT,** - **5 HAMEED HAJI AGED 59 YEARS S/O.ABDULLA KUNHI, RESIDING AT THALENGARA HOUSE, ALAMPADI, KASARAGOD DISTRICT, PIN-671123.** - **6 MAHAMOOD.B. AGED 54 YEARS S/O.ABDUL KHADER, RESIDING AT IRIYANNI HOUSE, THAIVALAPPU, ALAMPADY (P.O), KASARAGOD DISTRICT, PIN671541.** - **7 VANAJA.S. AGED 50 YEARS W/O.BALACHANDRAN, RESIDING AT MARDAMVAYAL, KALLAKATTA(PO), KASARAGOD DISTRICT, PIN-671123.** - **8 PRAVEEN KUMAR.A. AGED 31 YEARS S/O.MADHAVA.A., RESIDING AT AJAKOD, EDANEER (PO), KASARAGOD DISTRICT, PIN-671541.** **WP(C).No.15959 OF 2020** **2** - **9 HASEENA.M. AGED 37 YEARS W/O.SHAMSUDHEEN.M., RESIDING AT RAHMANIYA NAGAR, MUTTATHODY(P.O), KASARAGOD DISTRICT, PIN-671123.** - **10 ABDUL RAHIMAN.N.A. AGED 72 YEARS S/O.ABDUL HAJI.N.A., RESIDING AT RAHMANIYA NAGAR, MUTTATHODY (P.O), KASARAGOD DISTRICT, PIN-671123.** - **11 SALEEM.M. AGED 47 YEARS S/O.MOHAMMED.K., RESIDING AT KORIKKARMOOLA, EDANEER (PO), KASARAGOD DISTRICT, PIN-671541.** **BY ADVS.** **SHRI.JAWAHAR JOSE SMT.CISSY MATHEWS SRI.JAISON ANTONY** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** - **2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, JAWAHAR SAHAKARANA BHAVAN, D.P.I.JUNCTION, THYCAUD (PO), THIRUVANANTHAPURAM, PIN-695014.** - **3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), CIVIL STATION(P.O), KASARAGOD.** - **4 THE MUTTATHODY SERVICE CO-OPERATIVE SOCIETY, CITIZEN NAGAR, CHENGALA (P.O), KASARAGOD, PIN-671542, REPRESENTED BY ITS SECRETARY.** ## **SRI K. P HARISH SR GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.15959 OF 2020** **3** ## **JUDGMENT** Under challenge in this writ petition is Ext.P14 order of surcharge passed by the 3rd respondent under Section 68(2) of the Kerala Co-operative Societies Act, 1969. (hereinafter referred to as "the Act"). 2. I have heard Sri.Jawahar Jose, the learned counsel for the petitioners, and Sri.K.P.Harish, the learned Senior Government Pleader, who appears for respondents 1 to 3. 3. Sri. Jawahar Jose, the learned counsel appearing for the petitioners submitted that the findings of the respondent based on which surcharge has been imposed cannot be sustained. He would contend that the materials would not show that there was any breach of trust or wilful negligence, mismanagement or misappropriation by the petitioners herein. He would further contend that the alternate remedy provided under the statute is not efficacious as serious prejudice will be caused to the petitioners if the impugned order is allowed to stand. He finally argued that in view of the pandemic, this Court will not be justified in directing the petitioners to undertake a long journey and present their appeal. 4. Sri Bimal .K. Nath, the learned Government pleader has opposed the submissions. He contended that the petitioners have no case that any of the circumstances which would persuade this Court to entertain the writ petition despite the existence of statutory remedies exist in the case. The entire proceedings were **WP(C).No.15959 OF 2020** **4** carried out in a transparent manner in full compliance with the principles of natural justice and within the four corners of the statute governing the subject. He referred to the decision of this Court in **Thrikkadavoor Service Co-operative Ltd. v. Viswasankaran Pillai** [1990 (2) KLT 594] and also Rule 47 of the Cooperative Societies Rules and it is argued that the Committee is responsible for the misappropriation during its tenure and they cannot wash off their liability by placing the burden on someone else. It is pointed out that as per the provisions of Rule 124 of the Cooperative Societies Rules, an appeal under Sub Section (2) of Section 83 can be presented by the appellant or by his duly appointed agent, either in person during office hours or it can be sent by registered post to the appellate or revisional authority. In that view of the matter, the pandemic or the restrictions imposed cannot have any bearing, contends the learned Government Pleader 5. I have considered the submissions. Against an order of surcharge made by the Registrar under Section 68(2) of the Act, remedy by way of an appeal is provided under Section 83(1)(e) of the Act. When a statutory forum is created by law, ordinarily writ petitions are not to be entertained ignoring the said statutory dispensation. ## 6. In **Thansingh Nathmal v. Superintendent of Taxes [** AIR 1964 SC 1419], the Apex Court adverted to the rule of self - imposed restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: "The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of **WP(C).No.15959 OF 2020** **5** fact, and does not by assuming jurisdiction under Art.226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Art.226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up." ## 7. In **U.P. State Bridge Corpn. Ltd. v. U.P. Rajya Setu Nigam S.** **Karamchari Sangh** [(2004) 4 SCC 268] it was held that when the dispute relates to enforcement of a right or obligation under the statute and specific remedy is provided under the statute, the High Court should not deviate from the general view and interfere under Article 226 of the Constitution of India except when a very strong case is made out for making a departure. The person who insists upon such remedy can avail of the process as provided under the statute. (See also the decisions in **Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke** [(1976) 1 SCC 496], **Rajasthan SRTC v. Krishna Kan** t [(1995) 5 SCC 75] **Chandrakant Tukaram Nikam v. Municipal Corpn. of Ahmedabad** [(2002) 2 SCC 542] and in **Scooters India v. Vijai E.V. Eldred** [(1998) 6 SCC 549]. 8. In **Punjab National Bank v. O.C. Krishnan** [(2001) 6 SCC 569], the Apex Court has held that where the hierarchy of appeals is provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction. **WP(C).No.15959 OF 2020** **6** 9. Having considered the contentions advanced by both sides in the light of the precedents above, I find no reason to entertain this Writ Petition. Accordingly, without prejudice to the right of the petitioners to move the appellate authority through an appeal under Section 83(1)(e) of the Act, the Writ Petition in its challenge against Ext.P14 order will stand dismissed. 10. However, having regard to the submissions advanced by the learned counsel that the petitioners shall be visited with disqualification, pending consideration of the appeal, the respondents are directed to keep in abeyance further proceedings in pursuance to Ext.P14 for a period of two months to enable the petitioners to seek appropriate orders from the appellate forum. **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** NS **WP(C).No.15959 OF 2020** **7** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE DECISION DATED 2.6.2016 OF THE GOVERNING COMMITTEE OF THE 4TH RESPONDENT SOCIETY** - **EXHIBIT P2 TRUE COPY OF THE LETTER DATED 3.6.2016 ADDRESSED BY THE SECRETARY OF THE 4TH RESPONDENT SOCIETY TO THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KASRAGOD.** - **EXHIBIT P3 TRUE COPY OF THE F.I.R.BEARING NUMBER 234/2016 OF THE VIDYANAGAR POLICE STATION.** - **EXHIBIT P4 TRUE COPY OF THE COMMUNICATION ISSUED BY THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETY TO THE SECRETARY OF 4TH RESPONDENT SOCIETY.** - **EXHIBIT P5 TRUE COPY OF THE F.I.R.BEARING NUMBER 236/2016 OF THE VIDYANAGAR POLICE STATION.** - **EXHIBIT P6 TRUE COPY OF THE F.I.R.BEARING NUMBER 234/2016 OF THE VIDYANAGAR POLICE STATION.** - **EXHIBIT P7 TRUE COPY OF THE F.I.R.BEARING NUMBER 244/2016 OF THE VIDYANAGAR POLICE STATION.** - **EXHIBIT P8 TRUE COPY OF THE CHART PREPARED BY THE PETITIONERS WITH RESPECT TO THE CASES PENDING BEFORE THE COURT OF ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES.** - **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 4.6.2016 ISSUED BY THE PRESIDENT OF THE 4TH RESPONDENT SOCIETY SUSPENDING THE BRANCH MANAGERS.** - **EXHIBIT P10 TRUE COPY OF THE ENQUIRY REPORT DATED 26.12.2017.** - **EXHIBIT P11 TRUE COPY OF THE DECISION DATED 4.62016 OF THE GOVERNING COMMITTEE OF THE 4TH RESPONDENT SOCIETY.** - **EXHIBIT P12 TRUE COPY OF THE NOTICE DATED 25.2.2020** **WP(C).No.15959 OF 2020** **8** **ISSUED BY THE 3RD RESPONDENT. EXHIBIT P13 TRUE COPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONERS TO EXHIBIT P12 NOTICE. EXHIBIT P14 TRUE COPY OF THE ORDER DATED 12.6.2020 OF THE 3RD RESPONDENT. EXHIBIT P15 TRUE COPY OF THE ENQUIRY REPORT DATED 31.12.2016 OF THE UNIT INSPECTOR ATTACHED TO THE OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES. EXHIBIT P16 TRUE COPY OF THE ORDER DATED 2.11.2018 OF THE 3RD RESPONDENT. EXHIBIT P17 TRUE COPY OF THE ENQUIRY REPORT DATED 31.1.2020 OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES. EXHIBIT P18 TRUE COPY OF THE CIRCULAR DATED 8.2.21978. EXHIBIT P19 TRUE COPY OF THE CIRCULAR DATED 30.9.2005. EXHIBIT P20 TRUE COPY OF THE CIRCULAR DATED 26.9.2013. EXHIBIT P21 TRUE COPY OF THE CIRCULAR DATED 19.7.2016. EXHIBIT P22 TRUE COPY OF THE CIRCULAR DATED 16.2.2018. EXHIBIT P23 TRUE COPY OF THE CIRCULAR BEARING NUMBER 16/1998 ISSUED BY BY THE 2ND RESPONDENT. EXHIBIT P24 TRUE COPY OF THE "SUB RULE" OF THE 4TH RESPONDENT SOCIETY. EXHIBIT P25 TRUE COPY OF THE ORDER DATED 21.4.2003 OF THE 3RD RESPONDENT APPROVING EXHIBIT P24 "SUB RULE". EXHIBIT P26 TRUE COPY OF THE DECISION DATED 28.10.2016 OF THE GOVERNING COMMITTEE OF THE 4TH RESPONDENT SOCIETY.** ## **RESPONDENTS EXHIBITS:NIL**