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A.Jayathilakan Vs. State of Kerala - Court Judgment

SooperKanoon Citation

Court

Kerala High Court

Decided On

Judge

Appellant

A.Jayathilakan

Respondent

State of Kerala

Excerpt:


.....of 2014 (j) --------------------------- appendix petitioner(s)' exhibits ------------------------------------- exhibit p1: true copy of the order under section682) of kerala co- operative societies act dated3012.2013 and served on them on the2d and3d march2014 exhibit p2: true copy of the judgment dated285.2012 in wa no.439 of2012 exhibit p3: true copy of the plaint in arc no.26 of2012on the file of the kerala co-operative arbitration court, thiruvananthapuram. exhibit p4: true copy of the order dated317.2012 of the2d respondent. exhibit p5: true copy of the judgment dated177.2013 in wpc no.21949 of2012 exhibit p6: true copy of the notice udner section682) of the kerala co-operative societies act dated177.2013 issued by the2d respondent. exhibit p7: true copy of the reply to exhibit p6 dated138.2013 given by petitioners. exhibit p8: true copy of the circular no.37 of1990dated1711.1990 issued by the registrar of co-operative societies. true copy ps to judge k.vinod chandran, j................................................................ wpc no.8092 of 2014 ............................................................... dated this, the 1st day of april 2014 judgment the.....

Judgment:


IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE1T DAY OF APRIL201411TH CHAITHRA, 1936 WP(C).No. 8092 of 2014 (J) PETITIONERS:

1. A.JAYATHILAKAN MEMBER NO.2812, PRESIDENT CHEMMARUTHY SERVICE CO-OPERATIVE BANK LTD., VARKALA THIRUVANANTHAPURAM, RESIDING IN SATHYALAYAM CHEMMARUTHY.

2. S.PRAKASH MEMBER NO.5686 CHEMMARUTHY SERVICE CO-OPERATIVE BANK LTD., VARKALA THIRUVANANTHAPURAM RESIDING AT MUTHANA MELA PAYKAVEEDU, VARKALA.

3. R.RADHAKRISHNAN UNNITHAN MEMBER NO.655 CHEMMARUTHY SERVICE CO-OPERATIVE BANK LTD., VARKALA THIRUVANANTHAPURAM, RESIDING AT KULATHU VEEDU VARKALA.

4. S.CHITHRA MEMBER NO.12739 CHEMMARUTHY SERVICE CO-OPERATIVE BANK LTD., VARKALA THIRUVANANTHAPURAM, RESIDING AT CHANDRAKANTAM, PONGIL KALLAMBALAM.

5. R.VALSALAKUMARY MEMBER NO.3654 CHEMMARUTHY SERVICE CO-OPERATIVE BANK LTD., VARKALA THIRUVANANTHAPURAM, RESIDING AT PANAYIL VEEDU VARKALA.

6. A.AMEERUDEEN MEMBER NO.1005+9 CHEMMARUTHY SERVICE CO-OPERATIVE BANK LTD., VARKALA THIRUVANANTHAPURAM, RESIDING IN MAJEED MANZIL, THOKADU VARKALA.

7. MANOJ BABU MEMBER NO.1641 CHEMMARUTHY SERVICE CO-OPERATIVE BANK LTD., VARKALA THIRUVANANTHAPURAM, RESIDING IN MANOVILASAM MUTTAPALAM P.O.

8. G.SATHYASEELAN MEMBER NO.4056 CHEMMARUTHY SERVICE CO-OPERATIVE BANK LTD., VARKALA THIRUVANANTHAPURAM, RESIDING IN SATHYAVILASOM PALAYAMKUNNU P.O. BY ADVS.SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU WPC809214 -2- RESPONDENT(S): ---------------------------- 1. STATEOF KERALA REPRESENTED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM-695001.

2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) THIRUVANANTHAPURAM, OFFICE OF THE JOINT REGISTRAR THIRUVANANTHAPURAM-695 001. GOVERNMENT PLEADER MR.JOSEPH GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON0104- 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8092 of 2014 (J) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1: TRUE COPY OF THE ORDER

UNDER SECTION682) OF KERALA CO- OPERATIVE SOCIETIES ACT DATED3012.2013 AND SERVED ON THEM ON THE2D AND3D MARCH2014 EXHIBIT P2: TRUE COPY OF THE JUDGMENT

DATED285.2012 IN WA NO.439 OF2012 EXHIBIT P3: TRUE COPY OF THE PLAINT IN ARC NO.26 OF2012ON THE FILE OF THE KERALA CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM. EXHIBIT P4: TRUE COPY OF THE ORDER

DATED317.2012 OF THE2D RESPONDENT. EXHIBIT P5: TRUE COPY OF THE JUDGMENT

DATED177.2013 IN WPC NO.21949 OF2012 EXHIBIT P6: TRUE COPY OF THE NOTICE UDNER SECTION682) OF THE KERALA CO-OPERATIVE SOCIETIES ACT DATED177.2013 ISSUED BY THE2D RESPONDENT. EXHIBIT P7: TRUE COPY OF THE REPLY TO EXHIBIT P6 DATED138.2013 GIVEN BY PETITIONERS. EXHIBIT P8: TRUE COPY OF THE CIRCULAR NO.37 OF1990DATED1711.1990 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES. TRUE COPY PS TO JUDGE K.VINOD CHANDRAN, J.

............................................................... WPC No.8092 of 2014 ............................................................... Dated this, the 1st day of April 2014 Judgment The petitioners are all members of the present Managing Committee of Chemmaruthy Service Co-operative Bank Limited, Thiruvananthapuram, who have been proceeded against under Section 68 of the Kerala Co-operative Societies Act. Ext.P1 has imposed surcharge on the present Managing Committee members as also the erstwhile members.

2. The petitioners contend that the surcharge proceedings have been issued on the basis of an allegation that there were appointments made to the Bank in the year 2002-03 in excess of the sanctioned posts. The direction to terminate the persons, who were so appointed, was not heeded to by the respective members, who were elected to the Managing Committee during various periods. Subsequently, the Registrar of Co-operative Societies passed an order directing the Bank to terminate all such employees and also to recover the amounts WPC No.8092 of 2014 2 paid as salary to those employees, from such employees. The aggrieved individuals, who were so terminated, were before this Court with two Writ Petitions as WP(C) Nos.32154/09 and 35931/09. However, the Writ Petitions were disposed of directing the employees to approach the Arbitration Court and the Judgment of the learned single Judge was unsuccessfully challenged in WA No.439/12.

3. The petitioners contend that the proceedings initiated by the terminated employees are pending before the Arbitration Court and without finalisation of the same, no recovery could be effected from such employees. Under such circumstances, the recovery now sought to be effected under Section 68 of the Act is premature, is the contention. There is also a further contention that the present Managing Committee members are not responsible since immediately on their assuming office on 23.08.2009, it was the present Managing Committee, who terminated the employees on 10.11.2009.

4. The above contention is disputed by the learned Government Pleader, relying on Ext.P6 notice. Ext.P6, in fact, indicates that the termination of the employees, was effected on WPC No.8092 of 2014 3 09.11.2008, i.e., prior to the present Managing Committee having assumed office. It is also submitted that the Managing Committee, after assuming office, paid salary to those employees for two months, despite their termination having been effected on a prior date. It is these amounts, that are sought to be recovered under Section 68 of the Act, from the members of the present Managing Committee, is the contention of the Government.

5. Admittedly, there are disputed questions, which may not be proper to be adjudicated in a petition under Article 226 of the Constitution of India. Though the petitioners contend that all the Managing Committee Members have been proceeded against only for two months' salary, it is seen that the first petitioner, who is the present President of the Committee, has been proceeded against for an amount of Rs.54,682/- while all the other petitioners have been proceeded against for recovery of an amount of Rs.11,332/- each. Hence obviously, the first petitioner had been a Member in one of the previous Managing Committees also. That again would be a question of fact, which could be best agitated before the Appellate Authority as provided under Section 83(1)(j) of the Co-operative Societies Act. WPC No.8092 of 2014 4 6. The petitioners contend that Ext.P1 order which was passed on 30.12.2013, was communicated to the petitioners only on 01.03.2014. In such circumstances, going by the limitation provided under Section 83(2) of the Act, the 60 days' period has to be computed from 01.03.2014 if the petitioners are able to establish the date of service. In the circumstance of there being no appointment of an Administrator till now, the petitioners shall, if so advised, invoke the remedy provided under Section 83 (1)(j). There shall be an interim stay of operation of Ext.P1 till 30.04.2014 within which time, the petitioners would be entitled to approach the Appellate Authority and also seek interim orders from the Appellate Authority.

7. It is made clear that the interim stay has been granted only in the circumstance of the petitioners having approached this Court under Article 226 of the Constitution of India and having not yet invoked the appellate remedy provided under the Act as also noticing the fact that there is still time as provided under the Act, to approach the Appellate Authority, if the date of service is established. It is also made clear that this Court has not looked into the merits of the contentions raised in the Writ WPC No.8092 of 2014 5 Petition and it would be for the Appellate Authority to consider and pass orders on the appeal as also the interim application filed by the petitioners before it. The Writ Petition is disposed of without any order as to costs. K.VINOD CHANDRAN, JUDGE sta WPC No.8092 of 2014 6


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