IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 WP(C).No. 32125 of 2007(Y) -------------------------- PETITIONERS: --------------- 1. G.SUGUNAN, PRESIDENT, THIRUVANANTHAPURAM DISTRICT CO-OP. MARKETING AND PROCESSING SOCIETY LTD.NO.T.383, NEDUMANGAD, THIRUVANANTHAPURAM. 2. THE THIRUVANANTHAPURAM DISTRICT CO-OP. MARKETING AND PROCESSING SOCIETY LTD.NO.T.383, NEDUMANGAD, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.B.S.SWATHY KUMAR RESPONDENT: --------------- THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THIRUVANANTHAPURAM. BY SENIOR GOVERNMENT PLEADER, SMT.ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. ------------------------------- W.P(C) No. 32125 OF 2007 ----------------------------------- Dated this the 18th day of February, 2008 JUDGMENT The first petitioner is the President of the committee of the second petitioner society. By order dt.24.04.07, the respondent ordered enquiry under Section 65 of the Kerala Co-operative Societies Act, 1969. That was done, apparently acting on a decision dt.17.04.07, issued by the Registrar. In Ext.P4 judgment, this court came to the conclusion that the respondent’s order dt.24.04.07 was one issued without naming the enquiring officer and hence that order has to go. It was accordingly set aside. The order dt.17.04.07 issued by the Registrar was also set aside stating that it is unsustainable. 2. Thereafter, reading the complaint made by one Shanavas and the report of the Deputy Registrar(Vigilance) dt.24.01.07 as also the Registrar’s letter dt.17.04.07 the impugned Ext.P5 has been issued by the respondent appointing one WPC No. 32125 OF 2007 2 Sri.N.R.Premachandran Nair, Assistant Registrar(General) as the enquiry officer and ordering enquiry under Section 65 into different aspects touching the affairs of the Society as stated in Ext.P5. 3. The contention of the petitioner is that, Shanavas is a fictitious entity; that the respondent Joint Registrar was acting on the ipse-dixit of the Registrar whose decision is recorded in the communication dt.17.04.07, which already stands set aside by this Court by Ext.P4 judgment; that the specific allegations in Ext.P5 no more survive for any consideration because those issues have either found finality at the hands of the Government or are over, absolutely baseless. The Assistant Registrar appointed to conduct the enquiry namely, Sri.Premachandran Nair, is also the same person who has sworn to the counter affidavit on behalf of the respondent stating that the petitioners have committed different acts leading to the allegations against them as contained in the impugned proceedings. Hence, at arguments, it was stated that he is biased. WPC No. 32125 OF 2007 3 4. Per contra, the learned Senior Government Pleader argued that Sri.Premachandran Nair was only swearing to the counter affidavit on behalf of the respondent and that he was essentially placing on record, what the respondent had to say and that therefore there is no cause for any apprehension of bias as has been sought to be made out against Sri.Premachandran Nair. It is further pointed out that the contents of communication, dt.24.01.07, of the Deputy Registrar(Vigilance) contains specific allegations, which are based on the prima facie findings following the enquiry conducted on the basis of the complaint of Shanavas. Accordingly, it is contended that, notwithstanding the fact that Ext.P4 judgment has been issued by this Court, the issuance of Ext.P5 is proper, more so because the only specific ground on which Ext.P4 judgment was issued is that the order for enquiry that was impugned in the writ petition had not named the officer who will conduct the enquiry. According to the learned Senior Government Pleader, Ext.P4 judgment rests decided on that sole issue. WPC No. 32125 OF 2007 4 5. While it may be true that a mere representation by a stranger cannot trigger an enquiry under Section 65 and the suo motu proceedings by the Registrar or the Joint Registrar as the case may be cannot be on the dictate of superior officer, the fact remains that the Deputy Registrar (Vigilance) had a look into the affairs of the Society. That lead to his letter. The petitioners, going by their pleadings, have specifically replied to the different allegation raised against them. While it was not proper on the part of the respondent to act on the communication dt.17.04.07 (Ext.P3), after Ext.P4 judgment, it is quite apparent that even if reference to Ext.P3 and complaint of Shanavas are weeded out, there are statements in Ext.P5 which depend solely on the contents of the letter dt.24.01.07 issued by the Deputy Registrar (Vigilance). 6. In the aforesaid circumstances it would suffice if the Joint Registrar gives the petitioners an opportunity of hearing, as regards the contentions of the Deputy Registrar(Vigilance)’s WPC No. 32125 OF 2007 5 report, after providing a copy of that report to the petitioners and thereafter take a decision as to whether there is any ground to further proceed under Section 65. The plea of persons bias against Sri.Premachandran Nair is rejected. 7. In the result, the impugned Ext.P5 is set aside and it is directed that the respondent will give the petitioners an opportunity of being heard, after giving them a copy of the letter dt.24.01.07 issued by the Deputy Registrar(Vigilance), disclosing the contents of that communication to the petitioners. The petitioners will be entitled to place before the Joint Registrar such materials as they would rely on, to disprove the allegations contained in the said communication of the Deputy Registrar. Sub objections shall be placed by the petitioners before the Registrar within a period of three weeks of receipt of a copy of the letter dt.24.01.07. The Joint Registrar shall thereafter take a final decision in the light of what is stated above within an outer limit of three months of receiving copy of this judgment after giving the petitioners an WPC No. 32125 OF 2007 6 opportunity of hearing, if necessary, through a counsel or a person of their choice. The Writ Petition is allowed accordingly. THOTTATHIL B. RADHAKRISHNAN, JUDGE ttb WPC No. 32125 OF 2007 7