Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI THURSDAY, THE 11TH DAY OF JULY 2024 / 20TH ASHADHA, 1946 RP NO. 520 OF 2024 AGAINST THE JUDGMENT DATED 10.01.2021 IN WP(C) NO.13983 OF 2020 OF HIGH COURT OF KERALA REVIEW PETITIONER: LIQUIDATOR AGED 36 YEARS PERINTHALMANNA TALUK RURAL HOUSING CO-OPERATIVE SOCIETY LTD. NO.M270, PERINTHALMANNA, MELATTOR UNIT INSPECTOR, CO-OPERATIVE ASSISTANT REGISTRAR (GENERAL) OFFICE, MINI CIVIL STATION, PERINTHALMANNA, MALAPPURAM DISTRICT, BAIJU MON, AGED 36 YEARS, S/O.AMMUKUTTY, KODENGAL PARAMBIL, CHUNDAMPATTA, KULUKKALLOOR, PALAKKAD DISTRICT, PIN - 679322 BY ADV K.RAKESH RESPONDENTS:
1 VENUGOPALAN V.V. AGED 62 YEARS, S/O.ACHUTHAN, VELOOR VALAPPIL HOUSE, PERINTHALMANNA P.O., MALAPPURAM DISTRICT, PIN - 679322 2 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 3 THE REGISTRAR OF CO-OPERATIVE SOCIETIES JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P.O., THIRUVANANTHAPURAM, PIN - 695014 4 THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, D/O.THE ASSISTANT REGISTRAR, (GENERAL), OF CO-OPERATIVE SOCIETIES, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN - 679322 5 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) MALAPPURAM, MALAPPURAM DISTRICT, PIN - 679322 -2- 6 THE PERINTHALMANNA TALUK RURAL HOUSING CO-OPERATIVE SOCIETY LTD. NO.A270, PERINTHALMANNA, MALAPPURAM DISTRICT, REPRESENTED BY ITS ADMINSTRATOR, PIN - 679322 7 PART TIME ADMINISTRATOR THE PERINTHALMANNA TALUK RURAL HOUSING CO-OPERATIVE SOCIETY LTD., NO.A270, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN - 679322 8 KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD KALA NIVAS, T.C.NO.27/156, 157, NEAR AYURVEDA COLLEGE, KUNNUMPURAM, P.B NO.85, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN - 695001 BY ADVS. NIRMAL V NAIR SURAJ.S(K/689/2000) THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
11.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -3-
O R D E R
(Dated this the 11th day of July 2024) This Review Petition is filed by the additional 8 th
respondent in W.P.(C) No.13983/2020 to review the judgment
dated 10.01.2024. The review petitioner is the liquidator appointed to the 5th respondent-Society in W.P.(C) No.13983/2020. I.A No.1/2023 was filed on 07.03.2023 to implead the review petitioner herein as the additional 8 th respondent. Notice was ordered on 03.04.2023. The endorsement by the registry shows that the service is not complete on Additional 8th respondent till 20.09.2023. But on 25.09.2023, it was recorded that ‘the learned Government Pleader takes notice for the additional 8 th respondent and seeks an adjournment’.
2. The case of the review petitioner is that he is the Unit Inspector of the Co-operative Department and appointed as the Liquidator of the 6th respondent-Society. On receipt of -4- notice from this Court, he went to the office of the Advocate General, and submitted the statement of facts to the Government Pleader. But the learned Government Pleader could not represent the Liquidator of the Society, and thus, there was no
representation for the review petitioner, and the entire facts
could not be brought before this Court before passing the
judgment under review. If the entire facts were brought before
the Court, the judgment would not have been passed by this Court. It is stated in the Review petition that the 1 st respondent committed serious malpractice and falsification of records, causing a severe financial burden to the Society. An enquiry under Sections 65, 66 and 68(1) Kerala Co-operative Societies Act (for short, the Act) was completed, and a sum of Rs.92,65,515/- is due from the 1st respondent for which proceedings have been initiated, and the 1 st respondent filed W.P.(C) No.4847/2021 before this Court and has obtained a stay. That writ petition is still pending. Moreover, Crime No.18/2017 -5- is pending against the 1st respondent in Perinthalmanna Police Station for the offences punishable under Sections 420, 468, and 471 IPC and he was arrested by the Crime Branch and which is now pending as C.C No.520/2022 on the files of the
J.F.C.M-I, Perinthalmanna. It is without noticing all these facts
that W.P.(C) No.13983/2020 was allowed, and the review petitioner was denied the opportunity to place on record the contentions against the 1st respondent. Therefore, he seeks a review of the judgment dated 10.01.2024.
3. The counsel for the 1st respondent seriously opposed
the review petition, contending that this Court had taken into consideration all the legal facts and relying on the judgment of this Court in Mohanan Nair P.G. v. Omallur Service Co-operative Bank Ltd. No. Q 228 and Others [2022 KHC 433], allowed the writ petition on the ground that the 1 st respondent’s pensionary benefits could not be withheld under Rule 198 of the Kerala Co- operative Societies Rules, since no disciplinary proceedings have
-6- been initiated against the petitioner and are pending. Therefore,
even if this review petition is allowed, the petitioner’s contention that, huge misappropriation had been made by the 1 st respondent and it is because of that the pensionary benefits withheld, cannot be sustained. Unless and until, the disciplinary proceedings are initiated against the 1st respondent under Rule 198, the benefits cannot be withheld.
4. The Government Pleader appearing for respondents 2 to 5 supported the review petitioner and submitted that the proceedings under Section 68(1) of the Act is a conclusive
finding that there has been misappropriation by the 1 st respondent. He has challenged the same before this Court and has obtained a stay of the further proceedings. So unless and until, the said writ petition is disposed of, the retirement benefits of the 1st respondent cannot be disbursed. Ultimately, if it is found that the proceedings initiated against the 1 st respondent are legally sustainable, the amounts due to the
-7- Society can only be recovered from the benefits due to the 1 st respondent. Therefore, prayed that the review petition be allowed.
5. It is a fact that only a statement has been filed by the 4th respondent in the writ petition, in which it is submitted
that after the enquiry under Section 65 of the Act, an order
under Section 68(1) was issued stating that the 1 st respondent had committed serious financial corruption to the tune of Rs.92,65,515/-. The additional 8th respondent being the official liquidator, was not represented by the Government Pleader, as he was arrayed as a respondent in the capacity of a liquidator. Thus it is clear that the additional 8th respondent, who is now directed by the judgment under review to quantify and pay the pensionary benefits, was not heard before the judgment was passed.
6. Order XLVII Rule 1 of the Code of Civil Procedure deals with ‘Application for review of judgment’. Any person -8-
aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred or by a decree or order from which no appeal is allowed, or by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his
knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or, for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of
judgment to the court which passed the decree or made the
order.
7. Thus, the review can be filed for any sufficient
reason other than error apparent on the face of the record or the mistake or discovery of a new important matter. Denial of the opportunity to the additional 8th respondent to project his -9-
case before this Court is a sufficient reason for review of the judgment. Principles of natural justice which prescribes that before any order is passed against a person, he should be heard. The proceedings of this case shows that the review petitioner was not heard before the judgment was passed. This constitute sufficient reason for review of the judgment. Therefore, I am of the considered opinion that this review petition is to be allowed and I do so. The judgment passed by this Court in W.P. (C)No.13983/2020 dated 10.01.2024 is reviewed and is recalled.
The review petition is allowed as above. Sd/- BASANT BALAJI JUDGE JS