A candidate is not disqualified from elections based on pending surcharge proceedings unless a formal order of surcharge is first issued.

JUDGMENT

Dated this the 19th day of October, 2023 Anu Sivaraman, J.

This writ appeal is preferred against the judgment of the learned Single Judge refusing to interfere with the rejection of an objection raised to the nomination filed by respondents 7 to 12 for contesting in the election to the Managing Committee of the 6th respondent-Society. It is the contention of the learned counsel for the appellant that respondents 7 to 12 are facing surcharge proceedings and are therefore disqualified for contesting the election in terms of Rule 44(1)(l) of the Kerala Co-operative Societies Rules (hereinafter referred as ‘the Rules’).

2. The learned Single Judge held that an order of surcharge has not been passed against respondents 7 to 12 and that therefore the objection raised in terms of Rule 44(1)(l) of the Rules is not sustainable.

3. The learned counsel for the appellant contends that, in view of the fact that there is a finding to the effect that respondents 7 to 12 have misappropriated amounts from the Society and since they are facing proceedings for surcharge, they should not be permitted to participate in the election process. It is further contended that the official respondents are hand in glove with respondents 7 to 12 and that therefore, proceedings are not being finalized.

4. We notice that Section 68 (1) of the Kerala Co-operative Societies Act (hereinafter referred as ‘the Act’) provides that in case, in the course of an audit, inquiry, inspection or the winding up of a society, it is found that any person entrusted with the organization or management of society or who is or has been an officer or employee of the society, has made any payment contrary to the Act and the rules or the bye- laws, or has caused any loss or damage in the assets of the society by breach of trust, or willful negligence or mismanagement or has misappropriated or fraudulently retained any money or other property belonging to such society or has caused the destruction of the records, the Registrar may, of his own motion, cause an enquiry into the conduct of such person. It is provided under (2) of the Act that, after the inquiry under sub-section (1), the Registrar is empowered, after giving the person concerned an opportunity of being heard, to require the person concerned to restore the money or the property or to pay contribution and costs or compensation as the Registrar may consider just and equitable. It is therefore clear that it is after a notice under (2) of the Act is issued to the person concerned and after considering the objections of such person that an order of surcharge can be passed against a person under (2) of the Act. Until such an order is passed under (2) of the Act, a person cannot be said to be surcharged so as to incur the disqualification as provided in Rule

44(1)(l) of the Rules.

In the above view of the matter, we are of the opinion that the judgment of the learned Single Judge does not suffer from any illegality so as to require interference in this intra court appeal. The appeal thus fails and the same is, accordingly, dismissed.

ANU SIVARAMAN, JUDGE