IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 WP(C).No. 15491 of 2005(T) -------------------------- PETITIONER(S): ------------------ K.K.ASHOKAN, KOOTTUNKAL(MANIVEENA), KARUMALOOR, MANAKKAPPADY P.O. NORTH PARAVOOR, (CHIEF ACCOUNTANT VADAKKEKKARA) SERVICE CO-OEPRATIVE BANK LTD.NO.137, PARUR). BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATION (C) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE REGISTRAR OF CO-OEPRATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. THE VADAKKETHARA SERVICE CO-OPRATIVE BANK LTD. NOP.137, VADAKKEKKARA P.O. NORTH PARAVUR, REPRESENTED BY ITS PRESIDENT. GOVERNMENT PLEADER SRI.MOHAMMED HASHIMFOR R1&2 SRI.T.K.SHAJAHAN FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.15491/05 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE RESOLUTION NO.16 DT 13.12.95. EXT.P2: TRUE COPY OF THE BOARD RESOLUTION NO.17 DT 24.5.2003. EXT.P3: TRUE COPY OF THE ORDER NO.EM(3) 39596/2003 DT 16.12.2003. EXT.P4: TRUE COPY OF THE APPEAL MEMORANDUM DT 8.1.2004. EXT.P5: TRUE COPY OF THE GOMS NO.292/05/CO0P DT 28.4.2005. EXT.P6: TRUE COPY OF THE BOARD RESOLUTION NO.4 DT 12.5.2005. EXT.P7: TRUE COPY OF THE CIRCULAR NO.5/89 DT 23.1.1989. EXT.P8: TRUE COPY OF GOVT.ORDER NO.60/2000/CO-OP/DT 28.1.2000. EXT.P9: TRUE COPY OF GOMS NO.16/89/CO-OP. DT 22.3.1989. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 15491 OF 2005 (T) ===================== Dated this the 25th day of June, 2009 J U D G M E N T Petitioner was an employee of the 3rd respondent Bank. He was only a Matriculate with JDC. However, by Ext.P1 resolution dated 13/12/95, giving the benefit of Rule 185(2) of the Co- operative Societies Rules as it stood then, the Bank resolved to promote the petitioner as Chief Accountant w.e.f. 1/1/96. 2. Petitioner assumed charge and was working in the post of Chief Accountant. Long thereafter, during the course of the audit for the year 2001-02, an objection was raised that the Bank did not obtain approval for the exemption granted to the petitioner as per Ext.P1 resolution. Thereupon, the Bank passed Ext.P2, a resolution dated 24/5/2003 and sought the approval of the 2nd respondent. The 2nd respondent considered the request of the Bank and passed Ext.P3 order dated 16/12/2003 approving Ext.P2 resolution, but however, with effect only from the date of the order. 3. Petitioner challenged Ext.P3 before the 1st respondent by filing Ext.P4 appeal. The appeal was rejected as per Ext.P5 order dated 28/4/2005. Consequently, by Ext.P6, recovery WPC 15491/05 :2 : proceedings were initiated to recover the alleged excess amount drawn by the petitioner during the period 1/1/96 to 16/12/2003. It is thereupon that the writ petition has been filed. 4. Counsel for the petitioner refers to Exts.P7 and P9 and contends that if the society is fixing a date prior to the date of the order of the Registrar, the Registrar is competent to approve the same. He also placed reliance on the judgment of this Court in Dasan v. Registrar of Co-operative Societies (2007(1) KLT 581). It is also contended that for no fault of the petitioner, he was promoted and having worked as Chief Accountant, petitioner should not be called upon to reimburse the salary paid. 5. In my view, since the relaxation granted by the Society as per Ext.P2 resolution has been approved by the Registrar as per Ext.P3 order dated 16/12/2003 and since the said approval is only with prospective effect, the main issue that arises for consideration is whether the petitioner should be made liable for refunding the alleged excess amount that he received for the period 1/1/96 to 16/12/2003. Admittedly, it was on the basis of Ext.P1 resolution passed by the Bank on 13/12/95 that the petitioner was promoted to the post of Chief Accountant w.e.f. 1/1/96.Going by Rule 185(2) as it stood then or under Rule 185(8) WPC 15491/05 :3 : as it now stands, the responsibility of seeking approval of the Registrar for a resolution passed by the society, lies entirely with the society. Therefore, the fault pointed out by the audit in not obtaining approval of the Registrar is attributable only to the Society. It is also a fact that consequent on the promotion granted as per Ext.P1, the petitioner assumed the post of Chief Accountant and has been discharging the duties that are attached to that post as well. Thus, the petitioner has discharged the liabilities of the higher post and he can in no way be blamed for the failure of the society in seeking the approval of the Registrar. In such circumstances, in my view, the petitioner cannot be saddled with the responsibility of refunding the alleged excess amount drawn by him for the period 1/1/96 to 16/12/2003, which was sought to be recovered as per Ext.P6. Therefore Ext.P6 will stand quashed. 6. The other issue that is canvassed before me is the correctness of Ext.P3 order passed by the Registrar granting approval to Ext.P2 resolution with effect from the date of the order viz., 16/12/2003. Although it is the case of the petitioner that he is entitled to have the approval effective from 1/1/96, such payer is made only on the strength of Ext.P1 resolution WPC 15491/05 :4 : dated 13/12/1995. It is a fact that for exemption as per Ext.P1 resolution, approval of the Registrar was not sought and if that be so, Ext.P1 is a totally ineffective one and no benefit can be claimed on the basis of Ext.P1. However, the fact remains that the society passed Ext.P2 resolution on 24/5/2003 and as per the law laid down by this Court in the judgment in Dasan v. Registrar of Co-operative Societies (2007(1) KLT 581), a resolution passed by the society exercising its power under Rule 185(8) of the Rules will be effective from the date of the resolution. If so, Ext.P3 to the extent it restricts approval from 16/12/2003 deserves to be set aside and Ext.P5 appellate order passed by the 1st respondent deserves to be interfered to that extent. 7. Therefore, there will be a declaration that Ext.P3 approval granted by the 2nd respondent to Ext.P2 resolution will be effective from 24/5/2003, when Ext.P2 resolution was passed. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp