IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 WP(C).No. 19916 of 2009(H) -------------------------- PETITIONER(S): ------------------ C.S.PANKAJAKSHAN, PRESIDENT, CHERTHALA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO.A.327, CHERTHALA, PIN:688 524, RESIDING AT "KEERTHY", C.M.C.26, CHERTHALA, PIN:688 524. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SRI.K.V.VIMAL RESPONDENT(S): ------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM, PIN:695 001. 2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL), ALAPPUZHA, PIN:688 011. 3. A.ABDUL SAMADKUTTY, ASSISTANT REGISTRAR/VALUATION OFFICER, CHERTHALA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO.A.327, CHERTHALA, PIN:688 524. GOVERNMENT PLEADER SRI.K.C.SANTHOSH KUMAR FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 19916 OF 2009 (H) ===================== Dated this the 30th day of July, 2009 J U D G M E N T Petitioner is the President of Cherthala Co-operative Agricultural and Rural Development Bank Ltd. In this writ petition, he is seeking to quash Exts.P6, P9 and P13 and a direction requiring the 2nd respondent to authorise an officer other than the 3rd respondent to conduct the enquiry under Section 65 of the Kerala Co-operative Societies Act is sought for. 2. Facts of the case are that Ext.P1 is a notification issued by the Bank for filling up certain posts. Further proceedings pursuant to Ext.P1 were stayed by the 2nd respondent as per Ext.P2 order, referring to a report submitted by the 3rd respondent. Thereupon, the petitioner submitted Ext.P3 requesting for a copy of the report based on which Ext.P2 order was issued. Accordingly, they were issued Ext.P4 report submitted by the 3rd respondent. Although they submitted explanation and requested that Ext.P2 order should be vacated, orders were not passed and that led the petitioner to approach this Court by filing WP(C) NO.30144/08. WPC 19916/09 :2 : 3. Meanwhile, the 2nd respondent issued Ext.P6, ordering an an enquiry under Section 65 of the Act and appointed the 3rd respondent, who submitted Ext.P4 report referred to above, as the enquiry officer. A reading of Ext.P6 shows that this order was issued relying on five documents, among which, documents at Sl.Nos. 2 to 5 are reports submitted by none other than the 3rd respondent himself. 4. Immediately on receipt of Ext.P6, petitioner submitted Ext.P7 representation to the 2nd respondent requesting either to withdraw Ext.P6 order for enquiry or atleast to change the enquiry officer on the allegation that they did not expect him to be unbiased. Subsequent to Ext.P7, on 28/11/2008 judgment was rendered by this Court in WP(C) No.30144/08 allowing the same and directing that Ext.P2 be treated as a tentative order. It was directed that considering Ext.P5 explanation, a final order in the matter should be passed by the 2nd respondent. 5. At that stage, challenging Ext.P6 and complaining of delay in considering Ext.P7, petitioner filed a writ petition before this Court as WP(C) No.34726/08. That writ petition was disposed of by Ext.P8 judgment directing the 2nd respondent to consider Ext.P7 WPC 19916/09 :3 : and pass orders thereon. Accordingly, the 2nd respondent considered the matter and issued Ext.P9, where the request of the petitioner to change the enquiry officer was declined. The Bank was also directed to stop further proceedings pursuant to Ext.P7. Against Ext.P9, the petitioner filed Ext.P10 appeal before the Government and that was directed to be disposed of as per Ext.P11 judgment rendered by this Court in WP(C) NO.3274/09 filed by the petitioner seeking expeditious disposal of the appeal. Accordingly, the appeal was considered and by Ext.P13, the request of the petitioner for change of the enquiry officer was rejected and the order passed by the departmental authorities was confirmed. It is in these circumstances the writ petition is filed. 6. In the writ petition, petitioner has also produced Ext.P14, a complaint filed by the 3rd respondent alleging that certain employees of the Bank, of which the petitioner is the President and in respect of which the 3rd respondent is appointed as the Enquiry Officer, had tresspassed into his office room and threatened and intimidated him. Ext.P15 is the FIR registered on the basis of Ext.P14 complaint referred to above. In para 27 of the writ petition, it is stated that on the allegation that the 3rd respondent WPC 19916/09 :4 : manhandled one Sri.Abhilash, a Junior Clerk of the Bank on 17/6/2009, a complaint was made by the aforesaid employee and Criminal Case has been registered and chargesheeted against the 3rd respondent as CC 506/2009, which is now pending on the file of the Judicial First Class Magistrate Court, Cherthala. It is also stated that as a counter case, CC 509/09 registered at the instance of the 3rd respondent also is pending before the said Court. 7. Counsel for the petitioner submits that Ext.P4 report and documents referred to at Sl.Nos. 2 to 5 in Ext.P6 order passed by the 2nd respondent ordering enquiry under Section 65 of the Kerala Co-operative Societies Act are reports submitted by none other than the 3rd respondent. These reports contains various allegations against the Bank, on the basis of which, further enquiry is ordered. According to the petitioner, the 3rd respondent will be anxious to vindicate his own findings as reflected in the aforesaid reports and hence, in the enquiry to be conducted, they cannot expect the 3rd respondent to be unbiased. It is also stated that the criminal cases filed by the 3rd respondent and against the 3rd respondent are also pending. In these circumstances, the petitioner apprehends the 3rd respondent to be biased, and therefore, it is submitted that the WPC 19916/09 :5 : respondents ought to have changed the 3rd respondent and appointed somebody else to conduct the enquiry. 8. The 2nd respondent has filed a counter affidavit. In the counter affidavit, the fact that the 3rd respondent has submitted the reports containing the finding that irregularities have been noticed in the Bank is admitted. It is also stated that in view of the findings in the report submitted by the 3rd respondent, the 2nd respondent was satisfied that it was necessary to conduct an enquiry under Section 65 and it was therefore that the enquiry was ordered by Ext.P6. It is stated that the 3rd respondent is an independent and efficient officer and it was therefore that the 3rd respondent was appointed as the enquiry officer. According to the 2nd respondent, no circumstances have been made out by the petitioner warranting change of the enquiry officer. 9. Though notice has been served on the 3rd respondent, there is no appearance on his behalf. 10. As already stated, the basis on which the petitioner is seeking change of the 3rd respondent as the enquiry officer to conduct the enquiry into the charges mentioned in Ext.P6 is that the 3rd respondent is likely to be biased. This allegation is set up on the WPC 19916/09 :6 : premise that all the reports on the basis of which the enquiry has been ordered are submitted by none other than the 3rd respondent himself. According to the petitioner, the correctness of the factual findings in the report will necessarily arise in the enquiry to be conducted pursuant to Ext.P6 and that if the third respondent himself is to conduct the enquiry, the petitioner will have to canvass on the correctness or incorrectness of the reports, before the author of the reports himself. On these facts, petitioner apprehends that the 3rd respondent will not be impartial and therefore seeks a change of the enquiry officer. Counsel for the petitioner also contended that in view of the pendency of the criminal cases, the 3rd respondent will be all the more likely to be biased against the Bank and its employees and for that reason also, the 3rd respondent should not be the enquiry officer. 11. When allegations of bias are raised against a party, all that the Court need looked into is whether there is a real likelihood of bias and whether the apprehension entertained is a reasonable one. In this case, Ext.P4 and the reports on the basis of which Ext.P6 was issued show that it was only acting upon the reports submitted by the 3rd respondent that the enquiry under Section 65 WPC 19916/09 :7 : has been ordered. In the reports, the 3rd respondent has found irregularities on the part of the Bank. When notice is issued in the course of the enquiry, necessarily, the correctness of the findings in the reports which are already submitted by the 3rd respondent will arise for consideration. In other words, the 3rd respondent will have to sit in judgment over his own findings in the reports. When the author of the reports himself is to conduct the enquiry under Section 65, there is every likelihood that the person will be biased in as much as he will always be keen to sustain his findings in the reports already submitted. If so, this Court will not be justified in concluding that the apprehension of bias entertained by the petitioner is a baseless one. If that be so, there is no justification for the stand taken by the respondents in Exts.P6, P9 and P13, where they have refused to change the enquiry officer. This is all the more so in view of the criminal cases that are pending. After all, justice should not only be done, but shall also be seem to be done. In my view, in the aforesaid circumstances, it is only appropriate that another person, who is competent to conduct the enquiry should be appointed and the enquiry as ordered by Ext.P6 should be conducted on that basis. WPC 19916/09 :8 : 12. True, the learned Government Pleader contended that the period prescribed for enquiry in Ext.P6 has expired. At the same time, he also mentioned that a request for extension of the period is pending with the authorities. The fact that the period specified for enquiry has expired does not mean that the enquiry officer would be changed by the respondents. Therefore, the expiry of the period is immaterial as far as the request of the petitioner for change of enquiry officer is concerned. 13. Therefore, the writ petition is disposed of quashing Ext.P6 to the extent the 3rd respondent is appointed as the enquiry officer and Exts.P9 and P13 rejecting the request of the petitioner for change of the enquiry officer. It is directed that it will be open to the 2nd respondent to appoint a competent officer of the Department and get the enquiry ordered as per Ext.P6 conducted in accordance with law. Writ petition is allowed as above. ANTONY DOMINIC, JUDGE Rp