Umesan K. and ors. Vs. the Secretary, Ezhupunna South Co-op. Bank Ltd. No. 1124 - Court Judgment

Thottathil B. Radhakrishnan, J.

1. The polling for the election to the committee of the second respondent co-operative society was held from 8 a.m. to 4 p.m. on 8.2.2009 in terms of Rule 35A of the Kerala Co-operative societies Rules, 1969, hereinafter referred to as the 'Rules', following Ext.P1 notification issued by the state co-operative Election Commission. In terms of the averments of the first respondent, the Secretary of that society, the election process, including the declaration of result was over by about 9 p.m. on that day. According to him, the President of the committee which was to demit office and respondents 3 and 6 to 8 requested the Secretary in writing, to convene a meeting of the newly elected managing committee at 11 a.m. on the next day, 9.2.2009, to assume charge. Ext.R1(a) is issued under the signature of those persons expressing their desire to enter on office at 11 a.m. on 9.2.2009 itself. According to the Secretary, he drew up the notices convening the meeting as sought for and handed them over to a sub-staff of the society instructing him to serve the notices on the members of the newly elected committee before 8 a.m. on 9.2.2009. The secretary asserts on the basis of the information of the sub-staff that the petitioners declined to accept the notices and that he, thereafter, requested them over phone to attend the meeting scheduled at 11 a.m. Going by the original of the notices returned by the sub-staff to the secretary, which I have perused, the secretary had issued the notices at 10 p.m. on 8.2.2009 convening the meeting at 11 a.m. on 9.2.2009.

2. This writ petition is filed seeking a declaration that the first meeting of the newly elected committee convened on 9.2.2009 is without notice to the petitioners and the election of the third respondent in that meeting, as the President of the new committee is illegal and void. The petitioners also seek a further direction to ensure that a meeting of the newly elected committee is convened in the manner prescribed in Rule 38 of the Rules for the purposes stated in that rule. They also seek a direction to the fourth respondent Joint Registrar to take disciplinary action against the first respondent for violation of Rule 38.

3. While the petitioners contend that they were served with notices of later meeting, and in the affidavit accompanying I.A. 3259/2009, they plead that the attempt is to keep them away from the meetings consecutively, exposing them to the disqualification, the second respondent contends that in the meetings held on 14.2.2009 and 21.2.2009 the petitioners participated and subscribed their signatures, though they had written in the minutes book that they are boycotting the meetings. The Secretary justifies the President, for having scored off those writings on the premise that only the President and the Secretary are authorized to write in the minutes book.

4. On facts, the counter affidavit of the Secretary is met by the petitioners through a reply affidavit denying the allegations against them. They stand to refute that the sub-staff had taken the notices to them and that the Secretary informed them over phone, about the meeting. For the purpose of deciding this case, I proceed, taking the stand of the secretary in that regard on its face value, on such premise, the only issue arising for decision is as to whether the petitioners were given due notice of the meeting of the newly constituted committee, for its first meeting in terms of Rule 38 of the Rules.

5. Section 28(1) of the Kerala co-operative Societies Act, 1969, hereinafter referred to as the 'Act', provides that the general body shall entrust the management of the affairs of the society to a committee constituted in accordance with the bye-laws, Section 29(1)(b) provides that a general body meeting of the society shall be held for the purpose of election in the prescribed manner. Rule 35(3)(s) as well as Rule 35A(p), which is the specific rule relevant for the case in hand, provides that the result of the election shall be recorded in the minutes book of the society and attested by the Returning officer and shall also be notified immediately on the notice hoard of the society. The members so elected shall be deemed to have been elected by the general body of the society for the purpose of Clause (b) of Section 29(1) of the Act, which provision has already been noticed. Therefore, by the operation of those provisions the declaration of result of election, is the conclusion of the process by which the members of the committee are elected by the general body. This is the process that results in the constitution of the committee as enjoined by Section 28(1) of the Act. Following such constitution under Section 28, Rule 38(1) requires the secretary or Chief Executive or any other officer discharging the functions of the secretary or the Chief Executive of the society to convene the committee to elect its President and other office bearers. This has to be done within one week from the date of the constitution of the committee. The committee is required to elect its President and do certain other acts in that first meeting. The constitution of the committee being the statutory consequence of the election as noticed above, the out-going committee, including its President, is excluded from having any say in the matter of convening the first meeting of a newly constituted committee. This is why Rule 38(1) puts that authority and duty on the secretary or the chief Executive, as the case may be. Therefore, the convening of a meeting for the purpose of Rule 38(1) of the Rules cannot be at the dictates or behest of the President or members of the out-going committee, though there may be nothing illegal for the secretary or the chief Executive to accept a request from all the members of the newly constituted committee intimating a date and time convenient to all of them.

6. In the case in hand, Ext. R1(a) is a request only by five among the nine members of the newly constituted committee which the secretary has, going by his counter affidavit, treated as those who constitute a majority in the elected committee. The secretary further goes on to contend that it was permissible as per the bye-laws of the society to hold such a meeting, Clause 38A of the bye-laws was referred to, on behalf of the secretary in this context. That provides that meetings of the committee have to be convened as and when it is necessary for the working of the society and that there should not be a gap of more than one month between two meetings. Emergent meetings can be held, if the President or one-third of the members of the committee or the authorized officer of the co-operative Department requires the calling of such a meeting. The said clause also enjoins that for an emergent meeting, normally, every member should be given three days' notice and in peculiar circumstances, meeting can be convened with a shorter notice period. Firstly, I have to note that Clauses 31 to 44 of the bye-laws relate to the Board of Directors (committee). Those provisions are conceived for the purpose of the meetings of the committee in the regular course. But, the meeting for the purpose of Rule 38(1) is not a meeting that would be governed by the clauses in the bye-laws, but fundamentally, by the statutory directions contained in Rule 38(1). Therefore, firstly, the aforesaid provision in the bye-laws is not an answer. Secondly, even if the said bye-law provision is looked into, it enjoins a notice of at least three days for even emergent meetings, except in peculiar circumstances, when a rule governing the meetings; the frequency of such meetings; and the notice for such meetings, is provided in a bye-law classifying meetings into those which have to be held at least once in a month; extra-ordinary ones for which normally three days' notice has to be given; and meetings under special circumstances which may be held even on shorter notice period, the special circumstances under which the third category of meetings would fall, are those which have to be classified as a slot which is of more importance or that which is more emergent than those which are otherwise emergent. If the assets of the society or materials dealt with it face unexpected calamities of nature like fire, tempest etc. or imminent emergencies like burglary, trespass and encroachment etc. arise, the situation may be one which could be described as a contingency more acute than emergent. Except in such categories, the rule of three days' notice contained even in the bye-law provision relied on by the secretary cannot be excluded.

7. The case in hand, as already noted, is confined to Rule 38(1) of the Rules. Is the delivery of a notice shown to have been drafted at 10 p.m. on one day with direction to deliver it at 8 a.m. on the next day, sufficient notice for convening a meeting at 11 a.m., that too, of a newly elected committee of a co-operative society to enter on office? is it reasonable notice? Notice is an intimation giving information regarding the convening of a particular meeting at a particular time and date in a particular place. That notice is given to a person who is entitled to participate in that meeting, to intimate about that meeting, to attend, having due regard to the purpose. It is not a call to race against a timer or a stopwatch tuned for a sprint drill. To be available on short notice or at a moment's notice or even at 24 hours' notice is just not conceived in Rule 38(1). That amount of emergency or haste is not situationally warranted or required, for the convening of the newly elected committee, for the first time. The requirement of Rule 38(1) is that the Secretary or the chief Executive shall convene the committee within one week. A reasonable notice, having regard to the purpose and context of that Rule, is a notice providing a reasonable time to enable the members of the committee to come prepared to attend the first meeting of an elected committee. They are also to elect the President and other office bearers of the society and draw up resolutions authorizing the officers concerned to take charge from the out-going office bearers. The legislative dictate to the secretary or the chief Executive to convene the new committee within one week advises against holding that such a meeting could be held even without 24 hours' notice. It is, therefore, unreasonable to compel the members of a committee, the result of the election of which was declared at 9 p.m. on one day, to be present at 11 a.m. on the next day to take charge following a notice drafted at 10 p.m. on the date of publication of the result, with direction for its service at 8 a.m. on the day on which the meeting is slated to be held. If I were to put the situation in hand on a canvass in frame, it would be a picturesque bundle of confusions of nine members running around to get ready after 8 a.m. to run to the place of meeting, to be there at 11 a.m. Even if the newly elected members would be residents in the immediate locality, reasonableness does not accept it as a fair proposition to expect them to do so. The test of reasonableness applies, since the convening of the committee is an administrative action and a statutory action of the Secretary in terms of Rule 38(1). There was fair room for at least a day's notice, or two days' notice or three days' notice, even going by the bye-law provision relied on by the Secretary. The impugned action of having convened the meeting on such short notice is, therefore, wholly unreasonable, irrational and arbitrary.

8. It was suggested, though faintly, that the period fixed for the first meeting of the committee in terms of Rule 38(1) has already run out and therefore, it would be void if such a meeting is held after that period. Plainly, this is illogical. The statutory provision contained in Rule 38(1) is a legislative direction to the Secretary or the Chief Executive to convene the meeting. He shall do it within one week. His failure to do so would not, as a necessary consequence, deprive the elected committee's right to enter on office, following the election. The secretary or the chief Executive is not to tilt the balance of the democratic functioning of the society. If he were to wield a Damocles's sword for the purpose of a meeting under Rule 38(1), he could well carry the power to annihilate the very democratic process.

9. The situation in hand is the making of the Secretary and the committee cannot be deprived of its rights. Above all that, the power of this Court to grant relief on the facts and in the circumstances of a case and to mould the reitef to provide redressal in the real sense, is unlimited, though its exercise would be only with great care and caution. Greater the power; greater would be the restraint, on facts, the committee ought to have the opportunity to hold its first meeting. The rights of the members of the society have also to be secured. In the result, this writ petition is allowed as follows:

i. It is declared that the meeting of the committee elected pursuant to Ext.PI resolution, shown to have been held on 9.2.2009 is illegal and void.

ii. It is ordered that, by the force of this judgment, the meeting of the said committee shall be held at 11 a.m. on 13.4.2009 at the bank hall of the second respondent, as one convened by the secretary of that society. The parties shall take this judgment as a notice of such meeting.

iii. Foil owing the interim order dated 31.3.2009, it is ordered that the committee would be entitled to process the applications of the members of the second respondent society for benefit of one time settlement and attendant circulars, the period for which would have, otherwise, expired on 31.3.2009. In terms of that interim order, it is ordered that as a special case, the fourth respondent will ensure that the benefits of those circulars are extended to the members of the society. The entitlement of such relief to the members of the society shall not be foreclosed merely because of the delay that has happened by virtue of the situation leading to the issuance of this judgment. The committee will also be entitled to receive applications for extending such benefits till 30.4.2009 and process them and the benefits shall stand extended accordingly.

iv. The applications for loans, if any, acted upon, by the persons who had shown to have assumed office, following the purported meeting dated 9.2.2009, would be considered for ratification by the committee that would enter office on 13-04-2009, at the earliest.