S. Sankarasubban, J.
1. This Original Petition raises a very interesting issue. Petitioner in the Original Petition. Mathew Kunju was a member of the Managing Committee of Lemon Grass Oil and General Marketing Co-operative Society Limited. He ts also the delegate to the Kerala State Co-operative Marketing Federation Ltd. as the Primary Society is affiliated to the Federation. The term of office of the elected committee of the Federation was over on 22-3-1999. Before the expiry of the term, the Managing Committee of the Society was superseded by the Registrar of Co-operative Societies by order dated 27-1-1999. This was challenged before this Court and the order of supersession was stayed. But since the election could not be held before the expiry of the term, an administrator was appointed for the management of the Federation by invoking Section 33(1) of the Kerala State Co-operative Societies Act.
2. Petitioner further submits that respondents 4 to 6 are the employees of the Federation. The fourth respondent was the Branch Manager of the Branch at Delhi. There were allegations of misappropriation against him. An enquiry was conducted. He was placed under suspension. Disciplinary proceedings were initiated against him. Taking into consideration the gravity of the offence, the fourth respondent was allowed to retire voluntarily from service. Similar disciplinary proceedings were initiated against the 5th and 6th respondents. The fifth respondent was dismissed and the sixth respondent was allowed to retire voluntarily. Respondents 4 to 6 filed appeals under Rule 198(4) of the Kerala Co-operative Societies Rules before the Managing Committee. The same was pending consideration before the Committee when the Committee was in force. On 25-1-1999, the appeals filed by respondents 4 to 6 were considered by the Board and decided to give personal hearing. However, since the Committee was superseded, the same could not be given.
3. As already stated, the administration is now vested in the administrator, under Section 33(1) of the Kerala Co-operative Societies Act. According to the petitioner, the administrator has no authority to take a policy decision including appointment, dismissal or reinstatement. His contention is that the administrator cannot hear the appeals filed by respondents 4 to 6. His contention is that the administrator is fully under the control of the third respondent-Managing Director. The administrator appointed under Section 33(1) or under Section 32 is only a stop gap arrangement. He has no power or authority to hear such appeals and take decisions. The said action of the administrator cannot be treated as functions of day to day administration. Hence, the prayers in the Original Petition are for a direction restraining the administrator from hearing the appeals filed by respondents 4 to 6, under Rule 198(4) of the Kerala Co-operative Societies Rules and for other reliefs.
4. Respondents 4 and 5 filed appeals while the sixth respondent filed C. M. P. No. 31186 of 1999 to vacate the Interim order in C.M.P. No. 15917/99. An interim order was passed in the above C. M. P. as follows :
'Notice and interim direction not to give effect to any order passed by the Administrator without obtaining permission of this Court'.
In the counter affidavit filed by the respondents, they have taken the contention that the administrator is competent to hear the appeals and that the petitioner has no locus standi. A memo was filed by the Government Pleader, which shows that orders have been passed on the appeal filed by the sixth respondent. Counsel for the petitioner Shri D. Somasundaram contended that the administrator appointed under Section 33(1) or under Section 32 of the Co-operative Societies Act is appointed only to discharge the routine functions. He cannot exercise the powers and functions of the Managing Committee. Counsel further contended that this Court in the Full Bench decision reported in Hassan v. Joint Registrar of Co-operative Societies, 1988 (2) KLT 746 -- held that the administrator has no power to enrol new members. In that case, a distinction has been made with regard to the words 'power and function'. The right to hear the appeal is a power and hence, it cannot be heard by the administrator. Learned counsel also relied on a single Judge's decision of this Court reported in Raghavan Nair v. Joint Registrar of Co-operative Societies, 1998 (2) KLT 1068 ; (1999 Lab IC 528). In that decision, Radhakrishnan, J. has taken the view that the power of appointment of employees is vested in the general body and that power cannot be exercised by the administrator, except the power to appoint on a provisional basis and during the pendency of the period of administrator. Shri Rajendra Nair, on the other hand, contended that under Section 33 or Section 32, the administrator or administrative committee is entitled to exercise all or any of the functions of the committee or of any officer of the society and take all such action as may be required in the interests of the society. According to him, the decision regarding enrolment of members stands on a separate footing. But so far as the appeals filed by respondents 4 to 6 are concerned, these are all routine matters, which can be disposed of by the administrator. In the decision reported in Hassan v. Joint Registrar of Cooperative Societies, 1998 (2) KLT 746, on behalf of the Full Bench Usha. J. held as follows :
'On the other hand, we find that the Apex Court had specifically posed the question regarding the powers to enrol new members in paragraph 8 of the Judgment and held that the administrator has no power to enrol new members since such a power is not specifically given under the Act, Rules and Bye-laws and that such a power cannot be spelt out from the authority given to conduct the election'.
In paragraph 8 of the above decision, the Full Bench quoted the definition of the words 'powers and functions' under the Karnataka Act. Radhakrishnan, J. In the decision Raghavan Nair v. Joint Registrar of Co-op. Societies, 1998 (2) KLT 1068 : (1999 Lab IC 528), after referring to the various provisions of the Act, in paragraph 8, observed thus (at page 531 of Lab IC) :
'As per the Act, as already mentioned, the final authority, so far as the society is concerned, is the general body, which entrusts the management of the 'affairs of the society' to an elected committee. The committee so elected has to manage the affairs of the society and has got power to effect appointments. Administrator or administrators or a administrative committee is or are appointed by the Registrar and not by the general body. A committee, or administrator or administrators appointed by the Registrar is or are entrusted with the management of affairs of the society by the Registrar and not by the general body'.
It is also held in the above decision thus :
The power to effect appointment in a cooperative society is vested in the general body. When it constitutes an elected body, the same is vested in the elected body, which owe its existence to the general body. Administrator or administrators is or are only expected to manage the affairs of the society and to exercise the functions of the committee and not expected to exercise 'powers' of the elected committee. Therefore, the principle laid down by the Full Bench is squarely applicable to the case of appointment as well during the tenure of the administrator or administrators or committee'.
5. I don't think, on the facts of this case, I need go to the correctness of the decision of Radhakrishnan, J., because learned counsel for the respondents contended that the learned Judge has assumed that the power of appointment vests with the Managing Committee and is not a function of the Managing Commitlee. In the present case, we are only concerned with the question whether the administrator is entitled to dispose of the appeals filed by respondents 4 to 6.
6. Rules, concerning the employees in the Co-operative Societies come under the head Establishment in Chapter V, Rule 183 prescribes age limit. Rule 184 speaks about probation. Rule 185 deals with promotions. Rule 186 prescribes qualifications for various posts. Rule 188 deals with staff pattern. Rule 198(3) deals with the authority competent to impose the various penalties on different categories of employees. This show that so far as the Secretary/Manager or other Chief Executive Officer and all employees holding posts higher than that of Senior Clerk/Senior Assistant/ I grade Assistant/ Equivalent other employees with same or identical scale of pay, penalties of censure, fine and withholding of increments (a to c) can be imposed by the President or Chairman, while withholding of promotion, recovery from pay of the whole or part of any pecuniary loss caused to the society by negligence or breach of orders or otherwise, reduction to a lower rank, compulsory retirement and dismissal from service (d to h) can be imposed by the Sub-Committee or Executive Committee. With regard to all other employees, the Secretary or the Manager or other Chief Executive Officer can impose the punishments under a to c while the President can impose the punishments under d to h. Rule 198 (4) provides an appeal. It says that an appeal shall lie against every order Imposing a penalty to the competent appellate authority shown in the table.
7. Now, respondents 4 to 6 have filed appeals before the Board of Management. The Board of management was superseded. The question is whether the administrator, who is to exercise all the functions of the Board of Management, can dispose of the appeals. Both Sections 33 and 32 (4) say that the Committee or administrator or administrators, subject to the control of the Registrar and to such instructions .as he may from time to time give, have power to exercise all or any of the functions of the committee or of any officer of the society and take all such action as may be required in the interests of the society. It is not because the general body has entrusted with the Executive Committee that it was held that the power to enrol members does not vest with the administrator. It is true that the general body has entrusted the administration with the Board of Management. The administrator comes into the picture when certain contingencies arise when the Executive Committee is not able to function further.
8. The Co-operative Societies discharge many functions and for the efficient discharge of the functions the employees, are appointed. Rules are framed by the State under the Co-operative Societies Act, so far as the employees are concerned. Rule 184 deals with probation. Rule 184(2) says that at the end of the prescribed or extended period of probation, as the case may be the appointing authority shall regularise the appointment if the probationer is found suitable for such appointment. Rule 185 deals with promotions to higher categories. Rule 185 (2) says that it shall be competent for the committee of a society to relax the qualifications of an employee, whether appointed before or after the commencement of these rules, for the purpose of promotion, in deserving cases, with prior approval of the Registrar and for reasons to be recorded. If the argument of the petitioner is accepted, then so long as the administrator continues, no employee can be promoted and probation cannot also be declared.
9. Be that it may, we are here concerned with Rule 198 of the Kerala Co-operative Societies Rules. It cannot be said that the conferment of the right of hearing the appeal before the Board of Management is a power and not a function. The appeal is filed against the order of the Original Authority and the Appellate Authority have to see whether the order challenged by the appeal is correct and if it is not correct, pass proper orders. Learned counsel wants me to equate this function to a power as stated in the decision of the Full Bench reported in Hassan v. Joint Registrar of Co-operative Societies, 1998 (2) KLT 746.
10. The provisions of Rule 188 deals with disciplinary proceedings with regard to the employees of the Society. These provisions have been introduced by virtue of the power given under Section 109 of the Co-operative Societies Act. The Rules prescribe the various authorities, who are to pass orders regarding the punishments and also stipulates the Appellate Authority, who are to hear such matters. These authorities, according to me, are the creations of the Rules. By virtue of the Rules, the Original Authority and the Appellate Authority are given the function on duty to hear disciplinary matters against the employees. In many cases, function is given to the Board of Management, because it is the ultimate body. It is not given to the Board of Management by virtue of any power given by the General body or by the Bye-laws. It is only given by the Rules. The Board of Management is a fluctuating body. After the term of a particular Board is over, another Board may be constituted. The administrator comes into play when the Board of Management was superseded to exercise the function of the Board of Management. I see no reason why the appellate power to be exercised by the Board of Management cannot be exercised by the administrator. There is no policy involved in these matters. Admittedly, the administrator is to hear appeals against the order of a Lower Authority and the duty of the Appellate Authority is to find out whether the order passed by the Lower Authority is correct in accordance with law and if it is wrong, set aside and pass orders according to law. Hence, I am of the view that there is nothing preventing the administrator from hearing the appeals. It was then submitted that the administrator is appointed by the Government or Registrar and in many cases his actions are not impartial. I don't think, this general accusation can be taken into account in the Interpretation of Rule 198 of the Co-operative Societies Rules. Suffice it to say if in the exercise of such appellate power, the administrator does not act Impartially or bona fide, then it is always for the Registrar to correct such orders under his powers in view of Rule 176 of the Co-operative Societies Rules.
11. In the present case. If the administrator had already passed orders in the appeals filed by respondents 4 to 6, then it can be given effect to. If the administrator has not passed any orders so far, then the appeals are to be heard by him, if the administrator is continuing even now. If the newly elected body is in charge, then the appeals in respect of which no orders have been passed by the administrator can be disposed of by the Managing Committee without delay.
12. Original Petition is disposed of as above.