IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 WP(C).No. 13233 of 2011(D) -------------------------- PETITIONER(S): --------------- SHAJAN JAMES, VADAKKEL HOUSE, JOSEGIRI P.O., IDUKKI DISTRICT. BY ADV. SRI.P.P.JACOB RESPONDENT(S): --------------- 1. POTTANKADU KSHEEROLPADAKA VYAVASAYA SAHAKARANA SANGHAM LTD., NO.I 1(D), POTTANKADU P.O., IDUKKI REPRESENTED BY SECRETARY, PIN-685569. 2. RETURNING OFFICER, POTTANKADU KSHEEROLPADAKA VYAVASAYA SAHAKARANA SANGHAM LTD, NO.I 1(D), POTTANKADU P.O., IDUKKI/DAIRY EXTENSION OFFICER, MUNNAR, PIN-685569. 3. ABRAHAM K.A., KARIMATTATHIL, JOSEGIRI P.O., IDUKKI, PIN-685565. BY ADV. SRI.K.M.KURIAN FOR R1 BY ADV. SRI. SRI.T.P.GOPAKUMAR FOR R3 BY SRI.M.A.ASIF, SENIOR GOVERNMENT PLEADER FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No. 13233 of 2011 ------------------------------- Dated this the 23rd day of May, 2011 J U D G M E N T The petitioner, a member of the first respondent diary co- operative society submitted a nomination pursuant to Ext.P1 election notification issued by the second respondent, Returning Officer. When it was taken up for scrutiny on 6.5.2011, Sri.T.V.Scaria, a member of the first respondent society submitted Ext.R2(a) objection contending that the petitioner who is an employee of the society cannot contest the election. The Secretary of the first respondent society submitted Ext.R2(b) letter dated 6.5.2011 to the Returning Officer to the effect that the petitioner is a person receiving salary from the society. In proof of the said statement, the receipt evidencing payment of salary for the month of March, 2011 was also enclosed. The Secretary of the society also stated in Ext.R2(b) letter that the collection of milk in Karimattom Kada Depot is being done under the supervision of the petitioner. The Returning Officer accordingly rejected the nomination submitted by the petitioner. Hence this writ petition challenging the rejection of the nomination and seeking the following relief:- “Issue a Writ of mandamus or any other appropriate Writ, Order or direction directing the 2nd respondent to accept the nomination of the petitioner enabling to contest in the Election scheduled to be held on 27.5.2011 to elect the Managing Committee of the 1st Respondent Society W.P.(C) No.13233 of 2011 2 by modifying or setting aside the proceeding of the 2nd respondent in rejecting the nomination.” 2. The main contention raised by the petitioner is that he is not an employee of the society and has not received any amount as salary or wages from the society. It is stated that the petitioner had received salary on behalf of the third respondent, a permanent employee of the society and the Depot Manager, for the reason that he was not in a position to personally go over to the head office of the society to receive salary. It is contended that the rejection of the nomination submitted by the petitioner is therefore illegal. 3. The first respondent has filed a counter affidavit wherein it is stated that the petitioner was the Depot Manager of Karimattom Kada Depot during the period from December 2010 to 6.5.2011. Relying on Exts.R1(2) to R1(4) vouchers, it is contended that the petitioner had received the value of the milk supplied from the depot during the various periods and had also received salary and other allowances. The first respondent has also denied the allegation that the third respondent is the person in charge of Karimattom Kada Depot and the petitioner's assertion that he had received payment on behalf of the third respondent as the third respondent was not fit to travel to the head office of the society. W.P.(C) No.13233 of 2011 3 4. The second respondent has filed a counter affidavit wherein relying on Ext.R2(c) series of vouchers and receipts, it is contended that the petitioner had received salary and allowances from the society and therefore he is ineligible to contest the elections. It is contended that his nomination was therefore rightly rejected. 5. The third respondent has filed a counter affidavit virtually supporting the petitioner. He has stated that he is a heart patient, that he was unfit to travel and therefore he had authorised the petitioner, a member of the society, to receive the amounts due to him towards salary and allowances as well as the value of milk supplied from the depot. The third respondent has also stated that the petitioner is not an employee of the society. 6. I heard Sri.P.P.Jacob, learned counsel appearing for the petitioner, Sri.K.M.Kurian, learned counsel appearing for the first respondent, Sri.M.A.Asif, learned Senior Government Pleader appearing for the second respondent and Sri.T.P.Gopakumar, learned counsel counsel appearing for the third respondent. The learned counsel for the petitioner contended that respondents 1 and 2 have no case that the petitioner was appointed as Depot Manager of the Karimattom Kada Depot and have not produced any decision or order appointing the petitioner as the Manager of the Depot and therefore W.P.(C) No.13233 of 2011 4 the contention of respondents 1 and 2 that the petitioner is a paid employee of the society is not tenable. Relying on the counter affidavit filed by the third respondent, the learned counsel for the petitioner contended that he had received salary and allowances and also the value of the milk supplied from Karimattom Kada Depot on behalf of the third respondent, that he had only acted as an agent of the third respondent and therefore it cannot be said that he is a paid employee of the society. The learned counsel for the petitioner also contended that the building where Karimattom Kada Depot is located belongs to the third respondent and the rent for the building was also paid to him as can be seen from Ext.R1(2) receipt dated 3.2.2011. The learned counsel for the petitioner contended that in such circumstances, as the third respondent is the owner of the building and the receipt evidencing payment of rent was also signed by the petitioner as the agent of the third respondent, it cannot be said that the petitioner is an employee of the first respondent society. 7. Per contra, Sri.M.A.Asif, the learned Senior Government Pleader appearing for the second respondent contended that the petitioner was in charge of Karimattom Kada Depot during the period from December, 2010 to 6.5.2011 and had received salary and the value of the milk supplied from the depot as Depot Manager W.P.(C) No.13233 of 2011 5 and therefore it is evident that he is an employee of the society and ineligible to contest the elections. The learned counsel for the first respondent also contended that if as claimed by the third respondent, he was unfit to travel, there is no reason why he should have claimed and drawn travelling allowance at the rate of Rs.80/- per month. Sri.T.P.Gopakumar, learned counsel appearing for the third respondent on the other hand submitted that he and not the petitioner is the Depot Manager and the petitioner had received the rent for the building and salary due to him on his behalf as authorised by him. 8. I have considered the submissions made at the Bar by the learned counsel appearing for the either side. Though respondents 1 and 2 have alleged that the petitioner is a paid employee of the first respondent society, they have not produced any cogent material to substantiate the said contention. The date on which the petitioner was appointed as the Depot Manager is not forthcoming and the resolution by which he was appointed is also not placed on record. Respondents 1 and 2 have also not referred to any notification inviting applications. As per Circular No.18 of 1991 dated 7.6.1991 issued by the Registrar of Co-operative Societies appointments in Co-operative Societies cannot be made except after W.P.(C) No.13233 of 2011 6 inviting applications and holding a written test and interview. The written test has to be conducted by an outside agency. Respondents 1 and 2 have no case that the petitioner was appointed as Depot Manager after such selection process. In any case, the order appointing the petitioner as the Depot Manager has not been produced. Even in Ext.R2(b) letter dated 6.5.2011, the Secretary of the first respondent society has not stated that the petitioner is an employee of the society. Respondents 1 and 2 have also not denied the case set out by the petitioner and the third respondent that it is the third respondent who is the Depot Manager of Karimattom Kada Depot. They have also not denied the allegation that the building where the depot is located belongs to the third respondent. The third respondent has on the other hand categorically stated that the petitioner had received salary and allowances and the value of milk supplied from the depot on his behalf as authorised by him. Further, the final voters list prepared by the Administrator and handed over to the Returning Officer and published by the Returning Officer discloses that the petitioner is a member of the society. As a member of the society, the petitioner cannot be appointed as its employee. There is a clear prohibition in that regard in Rule 16 of the Kerala Co-operative Societies Rules. From the materials on record, it cannot be said that W.P.(C) No.13233 of 2011 7 the case set out by respondents 1 and 2 that the petitioner is a paid employee of the first respondent society has been made out. Such being the situation, the Returning Officer should not have rejected the nomination submitted by the petitioner. I am therefore of the opinion that the petitioner is entitled to succeed. I accordingly allow the writ petition and set aside the order passed by the second respondent rejecting the nomination submitted by the petitioner. Consequently, respondents 1 and 2 shall include the name of the petitioner in the list of persons who have submitted valid nominations and in the ballot paper. Necessary steps in that regard shall be taken before the elections are held as scheduled on 27.5.2011. P.N. RAVINDRAN, JUDGE. nj.