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Judges : B.N.SRIKRISHNA,G.SIVARAJAN,M.RAMACHANDRAN
S.Lakshmanan - Appellant
Versus
V.Velliankeri - Respondent
Case No : W.A.Nos.2513 of 1999 & 376 of 2000
Decided On : 04/09/2002
Advocates Appeared :
For the Appellant: K. Ramakumar, Rajit, Advocates. For the Respondent : P. Ravindran, R1 Mr.Thampan Thomas, Advocate, R2 C.Vathsalan. Government Pleader.
Kerala Co-operative Societies Act, 1969 – Section 33(1) – Kerala Interpretation and General Clauses Act – Sections 16,15 – Constitution of India – Articles 74, 75(3), 163, 164(2) – Kerala Co-operative Societies Act, 1969 – Kerala Co-operative Societies Rules, 1969 – Rule 43 – Absence of Provisions Issue – Whether absence of a specific provision in the Kerala Co-operative Societies Act, 1969, and the Rules framed there under will stand in the way of any motion for loss of confidence relating to President of a Co-operative Society – It is contended that the principle of collective responsibility envisaged in the Constitution together with its counter part of no-confidence in the Council of Ministers must be read into the provisions of the Co-operative Societies Act also – The appellant also urge that S. 31(3) contemplates the process of a motion for no-confidence under the Act. S. 31(3) prohibits a person nominated to the committee of an apex or a central society from taking part in the discussion of any no-confidence motion or voting on any such motion – It is also contend that, even if no provision is made in the Act, Rule or the Bye-laws, the expression of no-confidence by a managing committee in an office bearer such as President, Vice President, etc., could always be in the form of a resolution passed by the Committee as in the case of any resolution for transacting other business – Held, In the absence of a power it was not open to the members of the Board of Directors to remove the Chairman or the Vice Chairman by passing a mere resolution of vote of no confidence – In the result, therefore, the resolution of no confidence passed against the petitioners is set aside, it being ultra vires of the powers of the members of the Board – As a necessary consequence of this, the Chairman and Vice-Chairman are entitled to continue in office for the unexpired period of their tenure, obviously subject to the other provisions of the Act, rules and the bye-laws – Upon a conspectus of the various decisions cited at the bar, and after critical appraisal of the arguments addressed, court is inclined to take the view that the judgment of the Division Bench of this Court in Chacko’s case (supra) correctly lays down the law – Consequently all the judgments which take a contrary view are hereby overruled – In the absence of a specific provision in the Kerala Co-operative Societies Act, 1969, the Rules framed there under and the bye-laws of a Co-operative Society, the Managing Committee has no right to move or consider a motion for loss of confidence in the President, Vice President or Treasurer or any other office bearer of the Managing Committee elected in accordance with R. 43 of the Rules – Order Accordingly
Srikrishna, C.J.
By a reference order dated 21st March, 2000 made by the Division Bench of Arijit Pasayat,C.J. (as His Lordship then was), and K.S.Radhakrishnan,J., the following question of law has been referred to the Full Bench for decision:
“Whether absence of a specific provision in the Kerala Co-operative Societies Act, 1969 and the Rules framed there under will stand in the way of any motion for loss of confidence relating to President of a co-operative society?”
2. Section 28 of the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as “the Act”) is titled “Appointment of committee” and provides that the general body of a society shall constitute a committee, for a period not exceeding fiver years, in accordance with the bye-laws and entrust the management of the affairs of the society to such committee. Section 33(1) of the Act contemplates appointment of new committee or administrator, inter alia, where a no-confidence motion is passed by the general body against the existing committee. Rule 43 of the Kerala Co-operative Societies Rules, 1969 (hereinafter referred to as “the Rules”) deals with the election of President, Vice-President, Treasurer or any other officer by the members of the committee. This rule provides for a meeting of the members of the committee to be convened and election to be held to the officer of the office bearers of the committee. The counsel on both sides concede that there is no provision in the Act or the Rules made there under or the Bye-laws which enables or prescribes the procedure for passing of a no-confidence motion by the elected managing committee against the President or any other office bearer, nor is there any provision indicating the consequence of such a no-confidence motion being passed.
3. Mr.Ramakumar and Mr.Rajit, learned counsel appearing for the appellants, contend that the right to express no-confidence in an elected officer is inherent in the democratic process of representative governance, and irrespective of whether such a right is formally enacted in a statute, the very concept of participative democracy, which is equally applicable to Co-operative Societies, would enable the expression of no-confidence by the passing of an appropriate resolution. Counsel for the appellants also contend that a statutory provision, if made, would only enable the regulation of the power which must always be read as inherent in the electorate in a participative democratic set up. They highlight the principle expressed in Section 16 of the General Clauses Act and Section 15 of the Kerala Interpretation and General Clauses Act, 1125 (Act No.7 of 1125). They pointed out that the principle in both these Acts is that when a power to make any appointment is conferred by a statute, then, unless a contrary intention appears, the authority having such power of making the appointment shall also have the power to suspend or dismiss any person so appointed whether by itself or by any other authorities in exercise of such power. Counsel also referred to Articles 74, 75 (3), 163, and 164(2) of the Constitution of India. They urge that under Article 75(3) the Council of Ministers shall be collectively responsible to the House of People. Similarly, under Article 164(2), the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. The President/Governor in the State shall be advised in the exercise of his function by the Council of Ministers with the Prime Minister/Chief Minister respectively in the Centre and in the States. Counsel contend that the concept of collective responsibility to the House itself implies that the Council of Ministers shall be liable to be dismissed if it ceases to enjoy the confidence of the House. Emphasizing that the Constitution itself contain no provision of passing a no-confidence motion and the consequence thereof, counsel urged that, by the very principle of participative democracy, a convention has been devel
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