Back
2022 Supreme(Online)(KER) 60201
HIGH COURT OF KERALA
ALEXANDER THOMAS, Shoba Annamma Eapen, JJ
E.T.ABDUL JABBAR – Appellant
Versus
THE JOINT REGISTRAR OF CO OPERATIVE SOCIETIES (G) – Respondent
WA/1500/2021
P.P.JACOB
Under the Kerala Co-operative Societies Act, affected parties are entitled to challenge findings from inquiries before any punitive measures are taken, ensuring a fair hearing.
Headnote:
Surcharge - Kerala Co-operative Societies Act - Sections 65, 66, 68 - The Act provides for inquiries and penalties concerning irregularities in co-operative societies, emphasizing the necessity of giving affected parties an opportunity to contest inquiry findings before any final action is taken.
Fact of the Case:
The intra-court appeal challenges a judgment that dismissed a writ petition concerning an order of inquiry under the Kerala Co-operative Societies Act after an initial investigation alleged irregularities within a cooperative bank.
Finding of the Court:
The court found that the inquiry order did not culminate in a final decision and established that affected parties must be given the opportunity to be heard on the correctness of inquiry findings before imposing penalties under Section 68.
Issues: Was the inquiry initiated under Section 68 sufficient to affect the rights of the parties without allowing them the opportunity to contest the findings of the prior inquiries conducted under Sections 65 and 66?
Ratio Decidendi: The court affirmed that affected parties are entitled to a hearing before any punitive action is taken based upon inquiry reports, as mandated by the provisions of the Kerala Co-operative Societies Act.
Final Decision: The impugned judgment was modified, directing the Registrar to provide necessary materials and hearings to the appellants.
J U D G M E N T
Alexande r Thomas, J.
The subject matter of challenge in this intra-court appeal is the judgment rendered on 11.10.2021 by the learned Single Judge, dismissing the instant Writ Petition (Civil), W.P.(C) No.4750/2021. The appellants herein are the petitioners in the W.P.(C) and the respondents in the writ appeal are the respondents in the W.P.(C). 2. The prayers in the instant Writ Petition (Civil), W.P.(C)
No.4750/2021 are as follows:-
“(i) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P6, P7 and P8 and quash them all same.
(ii) Issue such other appropriate writ order or direction as this
3. Heard Sri.P.P.Jacob, learned counsel appearing for the petitioners in the W.P.(C)/appellants and Sri.T.K.Vipindas, learned Senior Government Pleader, appearing for the respondents in the W.P.(C)/respondents in the W.A.
4. The order under challenge in the above writ proceedings is Ext.P6 proceedings dated 7.7.2020 issued by the 1st respondent Joint Registrar of Co-operative Societies, whereby it has been ordered that, in view of the alleged irregularities said to have been disclosed in an inquiry conducted under Sec. 65 of the Kerala Co-operative Societies Act , (KCS Act for short), it has been ordered that an inquiry under Sec. 68(1) is to be conducted etc. The learned Single Judge has found that the impugned order at Ext.P6 is only a decision to trigger inquiry under Sec. 68(1) and that it is not a final decision for surcharge and that therefore, at the stage of the inquiry proposed to be conducted in terms of Sec. 68(1), challenge by the writ proceedings may not be appropriate. Further it was also found that it is well settled by the rulings of the Division Bench of this Court as inState of Kerala V. Aravindakshan Nair [2010 (3) KLT 11] that even after completion of an inquiry under Sec. 65 of the KCS Act, there is no question of hearing the parties concerned at that stage and only if further penal measures are proposed, either in terms of Sec. 68(2) or Sec.32, does the question of hearing the affected parties, on the basis of reports available under Sec. 65 or 66 of the KCS Act, would arise, except in the case of cost apportionment in terms of Rule 66(5).
5. The correctness of the dictum laid down by the Division Bench of this Court in Aravindakshan Nair's case (supra) [2010 (3) KLT 11] has been considered in detail by a Full Bench of this Court in Writ Appeal Nos. 657, 798 and 1751 of 2020. The Full Bench has now answered the reference, as per order dated 07.04.2022, in Writ Appeal Nos. 657, 798 and 1751 of 2020 (reported in Kudayathoor Service Co-operative Bank Ltd. v. Joint Registrar of Co- operative Societies (General) [2022 (3) KLT 222 (FB)]), wherein majority of 2 judges of the 3 judges Full Bench has held that the dictum laid down by the Division Bench of this Court in Aravindakshan Nair's case supra is correct and does not require any re-consideration. As in Aravindakshan Nair's case supra, the Full Bench has also held that, where the departmental authorities proceed to apportion the cost after the conclusion of an inquiry under Sec. 65 or 66 of the KCS Act, then Rule 66(5) of the KCS Rules would stipulate that at that stage, certainly, the affected parties will have to be heard. It may be pertinent to refer to the contents of the relevant portions of paras 17 and 18 of the aforesaid Full Bench Reference order [2022 (3) KLT 222 (FB)] , which read as follows:
"17. As noted, Section 66 of the Act empowers the Registrar, on his own motion or on the application of a creditor of a society, to inspect or direct any person authorised by him by order in writing in its behalf to inspect the books of the society. Similarly, Section 65 empowers the Registrar, on his own motion or on any of the circumstances mentioned in clauses (b) to (f) of sub-section (1) of , to order an inquiry by himself
