IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 WP(C).No. 15174 of 2006(F) ------------------------------------ PETITIONER(S): ------------------------ PRESIDENT, CHERUKADAPPURAM SERVICE CO-OPERATIVE SOCIETY LTD.NO.2959, CHERUKADAPPURAM, NORTH KUTHIYATHODU P.O., ERNAKULAM DISTRICT. BY ADVS.MR.M.M.MONAYE MR.M.PAUL VARGHESE MR.M.S.BREEZ RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY TO GOVERNMENT, DEPARTMENT OF CORPORATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. P.V.SUMATHI, PLAKKAPARAMBIL HOUSE, KOZHITHURUTHU, ELANTHIKKARA P.O., ERNAKULAM DISTRICT. 4. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE ASST.REGISTRAR OF CO-OPERATIVE SOCIETIES(G), NORTH PARAVUR, ERNAKULAM DISTRICT. BY GOVT. PLEADER MR.K.C.SANTHOSHKUMAR BY ADVS. MR.B.RAMACHANDRAN FOR R3 MR.K.P.SOMASUNDARAN NAIR FOR R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/05/2009, ALONG WITH WPC NO. 17812 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC,J. --------------------- W.P.(C).Nos.15174/06 & 17812/07 ------------------------ Dated this the 23rd day of May, 2009. JUDGMENT WP(c).No.15174/06 is filed by the petitioner Society seeking to quash Exts.P1 and P2 and WP(c).No.17812/07, is filed by the beneficiary of the aforesaid orders, for its implementation. 2. The facts of the case are that, the 3rd respondent in WP(c).No.15174/06, was the Secretary of the petitioner Society until she retired in the year 2000. It is stated that the Society was running a Neethi Store and that in the audit conducted for the period 1997-2000, shortage in stock worth Rs.84,986/-was reported and the 3rd respondent was found to be responsible for the loss. At that stage the 3rd respondent reached the age of superannuation. In view of the shortage of stock and the case of the petitioner Society that the 3rd respondent was responsible, her WP(c).Nos.15174/06 & 17812/07 2 terminal benefits towards PF and DCRG were not released. It would appear that the 3rd respondent filed a complaint before the Assistant Registrar on 8.11.2001. According to the petitioner society, without giving them copy of the complaint or giving them any notice or an opportunity of hearing, the Assistant Registrar passed Ext.P1 order exonerating the 3rd respondent from the liability and directing the petitioner to release the amounts from others responsible. 3. Aggrieved by Ext.P1, Society submits that they preferred an appeal before the first respondent. After hearing both sides, the Government passed Ext.P2 order, rejecting the appeal and directing the Society to disburse the benefits to the 3rd respondent. It was in these circumstances, WP(c). No.15174/06 was filed by the Society. 4. During the pendency of the aforesaid writ petition, the 3rd respondent Smt. P.V. Sumathy filed WP(c).No.17812/07 seeking a direction to the Society to pay the benefits that are due to her, in pursuance to Exts.P1 and P2 referred to above. 5. When the writ petitions were take up for hearing the main contention raised by the counsel for the petitioner in WP(c).Nos.15174/06 & 17812/07 3 WP(c).No.15174/06 was that the dispute between the parties is one coming within the scope of Section 69 of the Co-operative Societies Act and at the relevant time it was beyond the jurisdiction of the Registrar, to have decided the dispute. On this basis, it is contended that Ext.P1 orderwas without jurisdiction and therefore their appeal against Ext.P1 ought to have been allowed by the Government and that the first respondent ought not have rejected the same. Yet another contention that is raised that both sides have filed ARCs and that it was during the pendency of the proceedings that the impugned orders were issued. 6. In so far as the contention that the Registrar was devoid of jurisdiction to decide the issue is concerned, what is to be noticed is that Ext.P2 appellate order does not reflect that such a contention was either raised or urged before the Government, when the appeal was filed by the petitioner in WP (c).No.15174/06 or when the appeal was heard by the Government. Although the contention of the counsel for the petitioner was that this ground was pleaded, the memorandum of appeal is not produced and in any case even WP(c).Nos.15174/06 & 17812/07 4 if it was pleaded, it is obvious from Ext.P2 order that this point was urged. There is no case to the contrary in the writ petiton also. If that be the factual position, I am not inclined to permit the petitioner to raise the plea of lack of jurisdiction for the first time in the writ petition. Yet another aspect which needs to be noticed from the impugned orders namely Exts.P1 and P2 referred to above is that the society itself had passed a resolution entrusting the responsibility of running the Neethi store in question to two members of the Board of Directors and it was despite this, that the petitioner was attempted to be made liable. 7. In view of the above, I am not in a position to take a view different from what was taken by the departmental authorities and the Government. In view of the above, I do not think that this court should exercise the discretionary jurisdiction to interfere with Exts.P1 and P2, even if the ARCs are still pending. Accordingly, WP(c).No.15174/ will stand dismissed. Consequently WP(c).No.17812/07 will stand disposed of directing the Society to release the terminal benefits that are WP(c).Nos.15174/06 & 17812/07 5 due to the petitioner. This shall be done as expeditiously as possible and at any rate within 6 weeks from the date of production of a copy of the judgment. (ANTONY DOMINIC) JUDGE vi/ WP(c).Nos.15174/06 & 17812/07 6