Dismissed

Former Managing Committee of Kumbla Service Co. Operative Bank Ltd. v. the Joint Registrar of Co. Operative Societies (General)

Kerala HC18 Jan 2018WA/2304/2017

Case brief

AI extract

What is this about?

Writ appeal against supersession of Kumbla Service Co-operative Bank managing committee filed by former directors. Division Bench examined documents revealing tampering to hide appointment of three peons against two vacancies. Found no perversity in lower court's dismissal of petition against bank officials.

What did the court decide?

Writ appeal failed and dismissed.

Former Managing Committee of Kumbla Service Co… — Cooperative Societies | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN &

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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THURSDAY, THE 18TH DAY OF JANUARY 2018 / 28TH POUSHA, 1939

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WA.No. 2304 of 2017 IN WPC. 29435/2017

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(AGAINST THE JUDGMENT IN WP(C) 29435/2017 OF HIGH COURT OF KERALA DATED, 10-11-2017)

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APPELLANTS/PETITIONERS:

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1 FORMER MANAGING COMMITTEE OF

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KUMBLA SERVICE CO OPERATIVE BANK LTD. C.324, REPRESENTED BY ITS FORMER PRESIDENT, SHANKARA ALVA K., KUMBALA P.O., KASARAGOD-671 321.

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2 PRANAB KUMAR ALVA U., FORMER DIRECTOR, KUMBALA SERVICE CO-OPERATIVE BANK LTD.NO.C 324, KUMBLA P.O., KASARAGOD-671321.

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3 MURALEEDHARA K.,

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FORMER DIRECTOR, KUMBALA SERVICE CO-OPERATIVE BANK

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LTD.NO.C 324, KUMBLA P.O., KASARAGOD-671 321.

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4 SADANANDA KAMATH,

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FORMER DIRECTOR, KUMBALA SERVICE CO-OPERATIVE BANK

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LTD.NO.C 324, KUMBLA P.O., KASARAGOD-671 321.

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5 KAMALAKSHA K.,

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FORMER DIRECTOR, KUMBALA SERVICE CO-OPERATIVE BANK

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LTD.NO.C 324, KUMBLA P.O., KASARAGOD-671 321.

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6 KRISHNA SHETTY U.,

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FORMER DIRECTOR, KUMBALA SERVICE CO-OPERATIVE BANK LTD.NO.C 324, KUMBLA P.O., KASARAGOD-671 321.

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7 RAMA K.,

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FORMER DIRECTOR, KUMBALA SERVICE CO-OPERATIVE BANK LTD.NO.C 324, KUMBLA P.O., KASARAGOD-671 321.

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8 VEDAVATHI,

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FORMER DIRECTOR, KUMBALA SERVICE CO-OPERATIVE BANK

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LTD.NO.C 324, KUMBLA P.O., KASARAGOD-671 321.

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9 VASANTHI,

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FORMER DIRECTOR, KUMBALA SERVICE CO-OPERATIVE BANK

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LTD.NO.C 324, KUMBLA P.O., KASARAGOD-671 321.

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10 LEELA,

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FORMER DIRECTOR, KUMBALA SERVICE CO-OPERATIVE BANK LTD.NO.C 324, KUMBLA P.O., KASARAGOD-671 321.

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11 VASANTHAKUMAR, FORMER DIRECTOR, KUMBALA SERVICE CO-OPERATIVE BANK LTD.NO.C 324, KUMBLA P.O., KASARAGOD-671 321.

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BY ADV.SRI.P.N.MOHANAN

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:2:

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WA.No. 2304 of 2017 IN WPC. 29435/2017

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RESPONDENTS:

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1. THE JOINT REGISTRAR OF CO OPERATIVE SOCIETIES (GENERAL), KASARAGOD-671 001.

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2. KARIYA,

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S/O.KORAGA, PATTU HOUSE, BAMBRANA, KASARAGOD-671 321.

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3. DAMODARAN,

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S/O.AMBADI VELICHAPPADU, ARIKADY VILLAGE, KUMBLA P.O., KASARAGOD-671 321.

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R2 & R3 BY ADV. SRI.JAWAHAR JOSE, SRI. K.S,MOHAMMED HASHIM, SPECIAL GOVERNMENT PLEADER FOR CO-OPERATIVE SOCIETY

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

P.N.RAVINDRAN, J

R.NARAYANA PISHARADI, J

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W.A.No.2304 of 2017

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Dated this the 18^th day of January, 2018

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JUDGMENT

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P.N.Ravindran, J

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The appellants are the unsuccessful petitioners in W.P. (C)No.29435 of 2017 wherein they had challenged Ext.P7 order dated 25.8.2017 issued by the Joint Registrar of Co-operative Societies (General), Kasaragod, under Section 32(1) of the Kerala Co-operative Societies Act, 1969, superseding the managing committee of the Kumbla Service Co-operative Bank Ltd. No.C.324, Kumbla P.O., Kasaragod District, hereinafter referred to as 'the bank' for short. By judgment delivered on 10.11.2017, the learned single Judge dismissed the writ petition. Hence this writ appeal.

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The order of supersession discloses that it was passed mainly for the reason that the managing committee of the bank had, instead of appointing 02 persons to the post of Peon (the notified vacancies), appointed 03 persons and later, manipulated the records to make it appear that they had appointed only 02 persons. It is also relevant in this context to note that one among the appointees, namely, Manjunatha, is the nephew of Rama (sister's son of Rama), a member of the managing committee of

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W.A.No.2304/2017

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the bank and yet another person appointed, namely Vanith Kumar, (his name was later struck off) is none other than the son of Sri.Thimmappa, another member of the managing committee of the bank. The learned single Judge, after considering the rival contentions held that on the facts, no exception can be taken to the order of supersession.

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When this appeal initially came up before us on 11.01.2018, after hearing learned counsel on both sides, we passed the following order.

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“The Administrative Committee presently in management of the Kumbla Service Co-operative Bank Ltd. shall produce the minutes book of the managing committee maintained during the year 2015 as also the attendance register for that year. The Administrative Committee shall also cause production of the entire files leading to the selection and appointment to the post of Peon which led to the supersession of the committee. Learned Special Government Pleader shall cause production of the files leading to the order of supersession. Call on 18.01.2018”.

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By that order, we adjourned the appeal for further consideration to today.

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Today, when the appeal was taken up, learned Government Pleader handed over to us the minutes book maintained by the managing committee of the bank during the year 2015 as also the attendance register for that year and the year 2016. Learned Government Pleader also handed over to us the files leading to the impugned order. The files relating to the selection,

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including a note book disclose that in the SC/ST category, the

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following candidates were ranked in the order of merit.

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*Sl.No.*	*Reg.No.*	*Name of the Candidate*	*Marks obtained in* *written test &* *interview*
1	249	Manjunatha	56+16.2=72.2
2	251	Jagannathakumar D.K.	54+14.8=68.8
3	258	Suneethakumari. V	58+9.7=67.7

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In the general category, the following persons were ranked in

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the order of merit.

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*Sl.No.*	*Reg.No.*	*Name of the Candidate*	*Marks obtained in* *written test &* *interview*
1	216	Lolakshi	56+18.2=74.5
2	231	Vanith Kumar	58+15.5=73.5
3	206	Hariprasad	61+12.4=73.4
4	249	Manjunatha (SC)	56+16.2=72.2
5	214	Sharath Kumar	54+15.1=69.1
6	251	Jagannath Kumar (SC)	54+14.8=68.8
7	258	Suneetha Kumari (SC)	58+9.7=67.7
8	213	Sathya Shankara .A	42+9.8=51.8
9	234	Shaija V.L.	40+10.4=50.4
10	223	Kishore Kumar .M	39+9.9=48.9

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This merit list of candidates is available at page 40 of a

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note book containing 298 pages serially numbered from page 1 to 298 and used to record the proceedings of the managing committee of the bank from 25.02.2015 onwards. After the selection process was completed, the managing committee of the bank that met on 22.09.2015, resolved to appoint Sri.Manjunatha, Smt.Lolakshy and

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W.A.No.2304/2017

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Sri.Vanith Kumar as Peons. The resolution initially adopted by the

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managing committee of the bank in that regard on 22.9.2015 is extracted below:

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24	Considering the appointment for the post of peons in the existing	It is resolved to appoint Sri.Manjunatha Smt.Lolakshi
	vacancy from the Rank List published for SC/ST and General candidates as per Board Res. No.3, dtd 2.6.2014	Sri.K.Vanith Kumar as Peon in the existing vacancies in the scale of pay-6500-170/2- 6840-[80/3]-7380-190/2-7760- 2000-3-8360-240/5-9560-265- 5-10885-300/2,11485-325/2- 12175/360/4-13575-425/5-
		15700[33] from the rank list of
		SC/ST & General candidates
		published as per Res.No.3 dtd 2.6.2014. The candidates
		appointed as Peon under SC/ST category are the 1^stand 2^ndrank holders as per the list published and the candidates considered
		for appointment under general
		category of the Peon in the 1^st rank holder as per the list
		published and further resolved to
		auhtorise the President of the
		Bank to issue a appointment
		orders to the post of Peon
		consider for a appointment
		under SC/ST and General
		category in the existing
		vacancies. The period of rank list
		will be 2 years from the date of publication.

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The minutes of the meeting of the managing committee

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of the bank held on 22.9.2015 is available at pages 52 to 61 of a book containing 411 pages, numbered from 1 to 411, used to record minutes of the meetings of the managing committee from

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W.A.No.2304/2017

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24.07.2015 onwards. The aforesaid resolution is at page 61 thereof. Pursuant thereto, an order of appointment was issued to Manjunatha, son of Rama, (Serial No.1 in the list of SC/ST candidates) calling upon him to report before the Secretary of the bank on or before 01.11.2015 with the original certificates to prove his educational qualification, age, date of birth, experience, caste, etc. The office copy of the said order contains an endorsement made by Manjunatha on 01.11.2015, acknowledging receipt of the original order of appointment. The order of appointment is signed by Manunatha Alva, the President of the bank. The files contain copy of a similar proceedings dated 04.11.2015, issued to Lolakshy (Serial No.1 in the general category) and she has acknowledged its receipt on 12.11.2015. By that proceedings, she was called upon to join duty on 12.11.2015. Learned Government Pleader also handed over to us a similar proceedings dated 15.12.2015 issued to Vanith Kumar, son of Thimmappa.B, Santhipalla House, Kumbala, (Serial No.2 in the general category) calling upon him to join duty on 23.12.2015. Learned Government Pleader also made available to us the postal cover to show that the proceedings dated 15.12.2015 was sent to Vanith Kumar by registered post acknowledgment due on 16.12.2015. Learned Government Pleader also made available to us a carbon copy of the proceedings dated 15.12.2015 containing an acknowledgment by Vanith Kumar. Learned Government Pleader

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W.A.No.2304/2017

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submitted that at page 61 of the minutes book referred to above, the name of Vanith Kumar was erased using a whitener.

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The learned Government Pleader, as well as learned counsel appearing for respondents 2 and 3 submitted that if a lamp is held beneath page 61, the name of Vanith Kumar can be spelt out notwithstanding the fact that the writing has been erased using a whitener. Learned Government Pleader also brought to our notice the attendance register for the month of January 2015 and submitted that Vanith Kumar had signed the attendance register on 17.01.2016 (Sunday) and the forenoon session of 18.01.2016 (Monday), but later the name as also the signature of Vanith Kumar in the attendance register were erased using a whitener and the name of Gunavathibhai, the manager-in-charge was written and her attendance on 18.01.2016 was marked. We could see by holding a lamp beneath the name of Gunavathibhai that the name of Vanith Kumar had earlier been written and it was erased using a whitener. It is relevant in this context to note that in the resolution adopted by the managing committee of the bank on 22.09.2015, it is stated that the candidates appointed as Peon in the SC/ST category are the first and second rank holders and the candidate appointed from the general category is the first rank holders. If only two persons had been appointed from the list, it was unnecessary to refer to the rank of three persons in the resolution. The minutes of the

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W.A.No.2304/2017

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managing committee disclose that the learned Government Pleader is right in contending that after the managing committee resolved to appoint Vanith Kumar and after the order of appointment was issued and he marked his attendance, his name was erased using a whitener, to make it appear that the managing committee had not resolved to appoint him. Having regard to the totality of the facts and circumstances and after perusing the documents referred to above, we find merit and force in the submission of the learned Government Pleader that the documents maintained in the bank had been tampered with to make it appear that the managing committee had appointed only two persons against the notified vacancies.

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It is evident from the minutes of the meeting of the managing committee of the bank that met on 22.09.2015 that they had decided to appoint three persons. Otherwise it was not necessary to refer to the rank of three persons in the minutes. That apart, we have also seen the original of the proceeding dated 15.12.2015 appointing Vanith Kumar and the acknowledgment signed by him in token of having received the original of the said proceedings. The attendance register also discloses that he had signed the attendance register in January, 2016. It is thus evident that the managing committee of the bank has tampered with documents to cover up their illegal act, namely the act of appointing

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W.A.No.2304/2017

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03 candidates as against 02 notified vacancies, thereby attracting clause (d) of sub section (1) of Section 32 of the Act. The learned single Judge has in our opinion rightly non-suited the writ petitioners. It is settled law that in an intra court appeal, the Division Bench can interfere only if the view taken by the learned single Judge is perverse. In the light of the materials on record, it cannot be said that the conclusions arrived at by the learned single Judge are not warranted. The view taken by the learned single Judge cannot also be said to be perverse.

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Though it was contended before us that in a case falling under clause (a) of sub section (1) of Section 32, mere default or failure to comply with the provisions of the Act, cannot be a ground for supersession, and it should be shown that there was persistent or willful negligence, that contention does not merit acceptance, in the light of the facts stated above. If that contention is accepted, a managing committee which has tampered with a document can get away by saying that though we have committed a default, it is not persistent. That apart, on the terms of clause (a) of sub-section (1) of Section 32 of the Act, negligence in the performance of duties is also a ground for supersession. Negligence need not be persistent. We also likewise find no merit in the contention of the learned counsel for the writ petitioners that even assuming that a third candidate had been appointed as against two vacancies, the remedy

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lies before the Co-operative Arbitration Court under Section 69 of the Act. We are afraid, the mere fact that a person aggrieved can invoke the jurisdiction of the Co-operative Arbitration Court, cannot be a reason to hold that the Joint Registrar of Co-operative Societies should turn a Nelson's eye to the misconduct or default committed by the managing committee and desist from taking action under Section 32(l) of the Act. In our opinion, when such default or misconduct is made out, the Joint Registrar has a duty to take appropriate action and cannot keep quite under the pretext that if someone is aggrieved by the irregular appointment, he/she may invoke the jurisdiction of the Co-operative Arbitration Court. Likewise, we also find no merit in the contention of the learned counsel for the writ petitioners that even assuming that in an enquiry under Section 66 of the Act, some deficiency or defects have been noticed, the only order that can be passed is an order to set right the mistake or rectify the defect. In a case like this, where in the enquiry conducted under Section 66 of the Act, tampering of records is detected, no purpose will be served by directing the managing committee to restore the documents to its original state. We cannot also ignore the fact that the person illegally appointed is none other than the son of a member of the managing committee of the bank. We therefore find no reason or justification to accept the contention based on Section 66 of the Act.

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Though it was submitted before us that unless a lenient view is taken, the appellants will be disqualified from contesting in the elections, we are of the opinion that it is not a ground to test the validity of the order of supersession. If the petitioners are aggrieved by the provision regarding disqualification, their remedy lies in challenging the constitutional validity of the said provision in other appropriate proceedings. So long as there is no challenge to the provision of law, which stipulates for disqualification, the consequences must necessarily follow. The validity of an order of supersession cannot in our opinion be tested with reference to the consequences that follow, if the order has been made for valid reasons. We are therefore left with no other alternate but to dismiss the writ appeal.

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We accordingly hold that there is no merit in the instant writ appeal. The writ appeal fails and is dismissed. No costs.

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Sd/- (P.N.Ravindran, Judge)

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Sd/- (R. Narayana Pisharadi, Judge)

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//True Copy//

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P.A. To Judge

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vpv/ss

Former Managing Committee of Kumbla Service Co. Operative Bank Ltd. v. the Joint Registrar of Co. Operative Societies (General)

Case brief

What is this about?

What did the court decide?

Former Managing Committee of Kumbla Service Co. Operative Bank Ltd. v. the Joint Registrar of Co. Operative Societies (General)

Case brief

What is this about?

What did the court decide?

What the court decided

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