Thottathil B. Radhakrishnan, J.
1. W.P(C).22100/05 is by two members of the Board of Directors of Kottukal Service Co-operative Bank Ltd. No. T 196, hereinafter referred to as the 'Bank'. W.P(C).31344/ 05 is by the President of the said Bank.
2. W.P(C).22100/05 is filed challenging the legality of a resolution of the Board of Directors of the Bank, stating that the petitioners in W.P(C).22100/05 are disqualified and have lost their membership in the Board of Directors of the Bank. The primary contention raised in support of the said Writ Petition is that under Rule 44(3) of the Kerala Co-operative Societies Rules, hereinafter referred to as the 'Rules', the Joint Registrar, exercising powers of the Registrar, has to take a decision on the question of disqualification and it is only following such a decision by the said statutory authority, would a member be treated as disqualified.
3. Though the petitioner in W.P(C).31344/05 is not a respondent in W.P(C).22100/05, I have heard his learned Counsel in connection with W.P(C).31344/05 also, the said matter being intricately connected with the other.
4. That an order under Rule 44(3) is necessary to hold a person as disqualified is not in dispute.
5. Learned Counsel for the petitioner in W.P(C).31344/05 urges that going by the ratio of the decision of this Court in Mary Thomas v. Jerome Thomas 1995 (1) KLT 674 and on a plain reading of Rule 44(3) of the Rules, disqualification will take effect from the date of incurring the disqualification and not the date on which the order is made under Rule 44(3) by the Registrar. This argument requires to be considered.
6. Rule 44(3) of the Rules reads as following:
If any person is or becomes disqualified to be a member of the committee, the Registrar may on his own motion or on a representation made to him by any member of the society or by its Financing Bank by an order in writing declare that he shall cease to be a member of the committee of the society concerned from the date of such disqualification. Before passing an order, the Registrar shall give such person an opportunity to state his objections, if any, against the proposed action and if the person wishes to be heard he shall be given an opportunity to be heard.
7. In Mary Thomas's case, this Court had categorically laid down that once a person has incurred the disqualification enumerated under Rule 44, it is not within any discretionary province of the Registrar to refuse to issue an order disqualifying such a person. The word 'may' occurring in Sub-rule (3) of Rule 44 is essentially a command to the Registrar that he shall, on finding that a person is disqualified in terms of Rule 44, make a declaration to that effect, however, that he may act either suo motu or on a petition by any person. This is the ratio of Mary Thomas's case.
8. Coming to the contents of Rule 44(3), which is the basis of the arguments of the learned Counsel for the petitioner in W.P(C).31344/05 as to the date of effect of disqualification, certain crucial aspects require to be noticed. Rule 44 enumerates various disqualifications. Rule 44(3) specifically provides that the Registrar may (shall), by an order in writing, declare that he shall cease to be a member of the committee concerned from the date of such disqualification. This means, the declaration as to disqualification takes effect from the date of incurring the disqualification in terms of the various disqualifications enumerated in the earlier provisions of Rule 44. The question that immediately falls for consideration is as to what is the impact of such a declaration as to disqualification. The penalty of disqualification of a person has necessarily to be personal and the liability on account of disqualification will have to be burdened upon the person disqualified only. It cannot, at any rate, be extended to the institution in which he holds office, until the date on which the order is passed under Rule 44(3), declaring the disqualification. This is because, the acts in the institution cannot be permitted to be depend upon the disqualification of a member of the committee. It will not be in the interest of any institution to permit any such disqualification to affect any action taken by the member as part of the institution, until an order of disqualification has been passed under Rule 44(3) declaring the disqualification of the member.
9. Going by the above said proposition of law, it can be easily noticed that the petitioners in W.P(C).22100/05 would continue to hold office as members of the Board of Directors of the Bank, until a declaration under Rule 44(3), if any, is issued, if it is ultimately held that they are disqualified. Such a view gets further intrinsic support from the statute itself since an order under Rule 44(3) envisages a pre-decisional hearing.
10. As of now, it is the admitted position that the competent authority exercising the power of Registrar in relation to the Bank in question has not issued any declaration under Rule 44(3) as against the petitioners in W.P.(C).22100/05. Accordingly, it is hereby declared that the decision of the society impugned under W.P(C).22100/05 would have no bearing on the right of the petitioners in W.P(C).22100/05 to continue to hold office. This declaration will not, in any manner, impair the authority of the officer exercising the powers of the Registrar to take such action as may be envisaged, relatable to the petitioners in W.P(C).22100/05.
11. The petitioner in W.P(C).31344/05 faced a no confidence motion at the instance of some of the members including the petitioners in W.P(C).22100/05. Though I had issued an interlocutory order at 10.30 a.m. on 11.11.2005, directing that the no-confidence motion shall stand deferred till 16.11.2005, it is pointed out that the meeting was, as a matter of fact, convened and the no-confidence motion was carried with a majority of six out of nine members. This means that the resolution was carried and the petitioner in W.P(C).31344/05 was obliged under Rule 43A to resign.
12. However, it is urged on behalf of the petitioner in W.P(C).31344/05 that the no-confidence motion was liable to be interfered with by this Court owing to the pendency of W.P(C).22100/05. Firstly, no confidence motion is part of the democratic institution of a co-operative society and the tabling of the same, whether it be moved or carried, cannot be interfered with by the writ court, at any rate, on the facts and circumstances of this case. The pendency of W.P(C).22100/05 also did not make any difference since there were no orders by this Court interdicting the statutory authority proceeding under Rule 44 from considering any disqualification attributable to the petitioners in W.P(C).22100/05. To that extent, W.P(C).31344/05 fails.
13. Be that as it may, a plain reading of Rule 44(3) would show that the Registrar has to act on his own motion or on a representation made to him by any member of the society, regarding alleged disqualification of a member of the committee. It appears that there is no representation made by any member of the bank to the Registrar concerned to exercise authority under Rule 44(3). That a copy of the resolution of the Board to the effect that the petitioners in W.P(C).22100/05 are disqualified have been forwarded to the Registrar concerned, is disputed. If the Registrar has received any such material, it is well within his domain, having regard to the clear terms of Rule 44(3), to consider such material and take necessary action as may be warranted on the facts and circumstances of the case in terms of Rule 44(3) of the Rules.
These Writ Petitions are disposed of as above. All interlocutory orders and orders, if any, passed by the statutory authorities referable to these Writ Petitions will stand vacated forthwith. All other contentions relatable to the legality of the no confidence motion are left open.