IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 WP(C).No. 7298 of 2011(J) -------------------------------- PETITIONER(S): ------------------- 1. JINNY JOY,KOTTAYIL VEEDU, ACHANKUNNU, MULAYAM (PO). 2. C.S.GANAPATHY,CHANGATTATHU VEEDU, KOZHUKKULLI PO AYYAPPANKAVU. 3. M.L.BABY,MADATHUMPADI HOUSE, P.O. ERAVIMANGALAM. 4. BENNY KADALIKKATTIL, KADALIKKATTIL VEEDU, MULAYAM PO, AYYAPPANKAVU. 5. E.R.THILAKAN,EDATHARA VEEDU, POOCHATTY, PO ERAVIMANGALAM. 6. C.C.ANTONY,CHIRANGARA ILLIKKAL VEEDU, MERLIN GARDEN,EAST FORT PO. 7. P.KRISHNAN,PUTHIYAMADATHIL VEEDU, P.O. ERAVIMANGALAM. 8. P.V.SATHEESH KUMAR, PAREKKOTTU VALAPPIL VEEDU, MOORKKANIKKARA, KOZHUKKULLI P.O. 9. GEORGE MOOPPATTIL, MOOPPATTIL VEEDU, CHERUMKUZHI PO, ASARIKKAD. 10. P.BALAKRISHNAN,PUTHUVATHU VEEDU, MINOR ROAD, PO NADATHARA. 11. A.P.VARKEY,MULAM KUZHI VEEDU, PO ASARIKKAD. 12. ELIAKUTTY KURIAN,MELUKUNNEL VEEDU, PO ASARIKKAD. svs .........2/-... ...2... WPC.NO.7298/2011 13. M.I.VASU,MOORAYIL VEEDU, POOCHATTU, PO ERAVIMANGALAM. 14. P.C.JOSE,POOVATHINGAL VEEDU, ANCHERY PO. BY ADV. SRI.C.E.UNNIKRISHNAN RESPONDENT(S): -------------------- 1. STATE OF KERALA,REP.BY ITS SECRETARY TO GOVERNMENT,DEPARTMENT OF CO-OPERATION SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. JOINT REGISTRAR(GENERAL) OF CO-OPERATIVE SOCIETIES,THRISSUR 680 001. BY GOVT.PLEADER SRI.BASANT BALAJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 7298/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE OBJECTION. P2: COPY OF THE ORDER DATED 23/11/2010. P3: COPY OF THE MEMO OF APPEAL DATED 14/02/2011. P4: COPY OF THE LETTER DATED 18/02/2011. P5: COPY OF THE LETTER DATED 07/03/2011. P6: COPY OF THE STAY PETITION. P7: COPY OF THE EXTRACT OF DISPATCH CUM STAMP ACCOUNT REGISTER OF THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.7298 of 2011 ------------------------------- Dated this the 9th day of March, 2011 J U D G M E N T The petitioners are members of the managing committee of the Nadathara Farmers Service Co-operative Bank Ltd. No.3499. An enquiry under section 66 of the Kerala Co-operative Societies Act was conducted into the affairs of the said society. Based on the report of the enquiry, proceedings were initiated against the petitioners under section 68 of the Kerala Co-operative Societies Act, which resulted in Ext.P2 order of surcharge dated 23.11.2010. Aggrieved thereby, the petitioners filed Ext.P3 appeal before the Government under section 83 (1)(e) of the Kerala Co-operative Societies Act. The appeal was presented on 16.2.2011. The Government however noticed certain defects in the appeal and sent Ext.P4 letter dated 18.2.2011 to the third petitioner herein requesting him to rectify the defects within 15 days failing which he was cautioned that the appeal itself will be rejected, treating it as a defective one. It is submitted that the defects were rectified and Ext.P3 stay petition was also filed praying for stay of further proceedings pursuant to the order impugned in the appeal. In this writ petition, the petitioners seek a direction to the Government to hear and dispose of Ext.P3 appeal expeditiously. The petitioners also W.P.(C) No.7298 of 2011 2 seek a stay of further proceedings pursuant to Ext.P2 order pending disposal of the appeal on the ground that even though the appeal filed from Ext.P2 is pending, the Joint Registrar of Co-operative Societies is taking steps to disqualify the petitioners invoking the power under rule 44 of the Kerala Co-operative Societies rules. 2. By Ext.P2, the petitioners have been surcharged and directed to pay the sum of Rs.42,248.79 each. Under section 83(1) (e) of the Kerala Co-operative Societies Act, an appeal lies from the order of the surcharge passed to the State Government. Therefore, even though the petitioners have wrongly styled the appeal as one filed under section 83(1)(j), the Government is competent to entertain the appeal filed from Ext.P2. Ext.P4 letter establishes beyond doubt that the petitioners have filed an appeal before the Government. In such circumstances, I am of the opinion that if as claimed by the petitioners, the defects noticed in Ext.P4 have been rectified and the appeal is otherwise in order, the Government should hear and dispose of the appeal expeditiously. In the facts and circumstances of the case and having regard to the fact that the petitioners will be visited with adverse civil consequences, if pending disposal of the appeal the W.P.(C) No.7298 of 2011 3 order impugned in the appeal is given effect to and further proceedings are taken, I am of the opinion that till such time as the appeal is heard and disposed of, the operation of the order impugned in the appeal should be kept in abeyance. I accordingly dispose of the writ petition with a direction to the Government to hear and dispose of Ext.P3 appeal, if the defects noticed by the Government in Ext.P4 letter have been rectified and the appeal is otherwise in order and is one filed within time, expeditiously and in any event within four months from the date on which the petitioner produces a copy of this judgment before the Government or the Secretary to Government otherwise receives a certified copy of this judgement. Till such time as orders are passed as directed above, the operation of Ext.P2 order shall stand stayed. The Government shall before passing orders, afford one among the petitioners whom they may nominate as their representative or the lawyer engaged by the petitioners and the second respondent an opportunity of being heard. If notwithstanding service of notice, the petitioners do not co-operate with the hearing of the appeal, it will be open to the Government to dispose of the appeal without giving the W.P.(C) No.7298 of 2011 4 petitioners an opportunity of being heard. The contentions of the petitioners on the merits are kept open. P.N. RAVINDRAN, JUDGE. nj.