IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 WP(C).No. 26595 of 2008(N) -------------------------- PETITIONER: ------------ 1. G.JESUDASAN, PRESIDENT, BOARD OF DIRECTORS, THE SASTHAMCOTTA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.Q-373, SASTHAMCOTTA, KOLLAM DISTRICT. 2. A.HAMEEDKUTTY,MEMBER BOARD OF DIRECTORS, THE SASTHAMCOTTA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.Q-373, SASTHAMCOTTA KOLLAM DISTRICT. 3. R.RADHAKRISHNAN NAIR, MEMBER BOARD OF DIRECTORS, THE SASTHAMCOTTA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.Q-373, SASTHAMCOTTA, KOLLAM DISTRICT. 4. K.KRISHNANKUTTY NAIR, MEMBER BOARD OF DIRECTORS, THE SASTHAMCOTTA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.Q-373, SASTHAMCOTTA, KOLLAM DISTRICT. 5. P.THANKACHAN, MEMBER BOARD OF DIRECTORS, THE SASTHAMCOTTA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.Q-373, SASTHAMCOTTA, KOLLAM DISTRICT. 6. KUNNATHOOR BALAN, MEMBER BOARD OF DIRECTORS, THE SASTHAMCOTTA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.Q-373, SASTHAMCOTTA, KOLLAM DISTRICT. 7. K.R.SYAMALA, MEMBER BOARD OF DIRECTORS, THE SASTHAMCOTTA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.Q-373, SASTHAMCOTTA, KOLLAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENTS: ------------- JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), KOLLAM. BY SENIOR GOVERNMENT PLEADER SRI.ANU SIVARAMAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.26595 of 2008-N = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of September, 2008. JUDGMENT 1.Heard the learned counsel for the petitioners and the learned Senior Government Pleader for the respondent. 2.The petitioners are the members of the committee of a co-operative society. Ext.P4 notice was issued to them under Section 32(1) of the Kerala Co-operative Societies Act, 1969 based on a report under Section 65 of that Act. That led to an order of supersession under Section 32. That was challenged leading to Ext.P1 judgment wherein the order of supersession was set aside on the ground of improper consultation in terms of Section 32. However, the plea of the writ petitioners therein that a report under Section 65 cannot automatically lead to proceedings under WP(C)26595/2008 -: 2 :- Section 32(1) was repelled. 3.Thereafter, Ext.P2 notice was issued with reference to Ext.P4 notice which was Ext.P1 in Ext.P1 judgment and listing the matter for further consideration virtually on the same allegations. 4.In this writ petition filed challenging the issuance of such notice, petitioners contend that Ext.P4 notice and the follow up Ext.P2 notice are without any jurisdictional foundation referable to Section 32 of the Act in as much as the entire allegations in Ext.P4 are pivotally against the acts of the then President, who has been later disqualified and whose disqualification has been confirmed by this Court and no attributes could be made to the other members of the committee. Faced with the fact that there was a challenge for whatever it was worth, to Ext.P4 notice which has led to Ext.P1 judgment, the learned counsel for the petitioners has rightly pointed out that the said judgment does not touch on the correctness or WP(C)26595/2008 -: 3 :- otherwise of the allegations in the notice and the repellence to the challenge against that notice which was Ext.P1 in that case was only on the ground of the non-availability of a sustainable ground referable to Section 65 read with Section 32(1). It is pithily pointed out that the attempt is only to some how or the other supersede the committee by trying to saddle it with responsibility referable to the activities which were those only of the President. 5.The present stage is only of a notice for pre- decisional hearing. Having issued the impugned Ext.P2, there is no reason to assume that the petitioners would not be heard in opposition to the allegations made in Ext.P4 and Ext.P2. Having regard to the fact that at an earlier stage consultation was not dispensed with but was carried on, there is no reason to assume that consultation would be dispensed with in this round since the allegations against the petitioners are nothing but the same as are contained in Ext.P4 WP(C)26595/2008 -: 4 :- which generated the order that was ultimately set aside as per Ext.P1 judgment. The Joint Registrar hearing the petitioners in opposition to the notice Ext.P4 and Ext.P2 notice, has necessarily to focus attention on the specific plea of the petitioners that even on the face of a collective responsibility in the committee, there cannot be such direction against the committee now continuing in office without the then President among them, which would not be a sufficient ground to take the drastic action provided under Section 32, particularly when proceedings for supersession would normally be resorted to only in exceptionally exceptional situations. While I could also say that Ext.P1 judgment forecloses the petitioners from challenging the notice which is Ext.P2 in this case, it needs to be noticed, as rightly pointed out by the petitioners, that the findings in Ext.P1 as regards the sustainability of that notice essentially rested on jurisdictional issues rather than any finding on facts or adjustment of responsibility between the WP(C)26595/2008 -: 5 :- President and the members of the committee. Therefore, it is directed that Ext.P1 shall be so understood for further consideration by the Departmental officials. 6.The learned counsel for the petitioners very persuasively contended that the facts of the case in hand are ones where this Court should pass a protection order directing the respondents to defer enforcement of any order that may be passed against the interest of the petitioners for such period to help them to continue in office and challenge any such order and seek interim relief. The different contexts noticed by the Division Bench while rendering the decision in Narayanan Nair v. Vaikom Palliprathusserry Service Co- operative Bank [2003 (2) KLT 44] could have various other grounds also getting added on, with the passage of time. But, however, on the case in hand, I am not immediately inclined to take a view that the situation is the result of an actuated exercise motivated or focused by malice as against WP(C)26595/2008 -: 6 :- the petitioners, particularly when the officer, who passed the earlier order, is continuing with the proceedings and the grounds of the petitioners in opposition to the notice and allegations are not matters which could be treated as trivial. In the aforesaid circumstances, this writ petition is ordered directing that the petitioners will be given adequate opportunity of hearing and the first respondent will consider and issue a decision in accordance with law and having particular regard to the contention that the petitioners cannot be mulcted with the responsibility of any acts or misconducts that could be attributed to the President, who is not now in office. All other issues are left open. The learned Senior Government Pleader will ensure that the concise contents of this judgment are informed to the respondents since the matter is listed tomorrow. THOTTATHIL B. RADHAKRISHNAN, Sha/030908 JUDGE.