Kerala High Court
T.K.Porinchu vs The Registrar Of Co-Operative ... on 13 July, 2009
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10711 of 2008(A)
1. T.K.PORINCHU, MEMBER, BOARD OF
... Petitioner
2. K.G.PISHARADY, MEMBER,
3. P.B.MOIDU, MEMBER, BOARD OF DIRECTORS
4. A.P.JOSE MASTER, MEMBER,
Vs
1. THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
... Respondent
2. THE JOINT REGISTRAR OF CO-OPERATIVE
3. THE TRICHUR DISTRICT CO-OPERATIVE
4. THE ADMINISTRATIVE COMMITTEE OF
5. M.G.SUKUMARAN, MALAYIL HOUSE,
6. PROF.MURALIDHARAN, MENACHERY TOWERS,
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent :SRI.K.A.SREEJITH
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :13/07/2009
O R D E R
ANTONY DOMINIC, J.
=====================
W.P.(C) NO.10711 OF 2008 (A)
=====================
Dated this the 13th day of July, 2009
J U D G M E N T
Four members of the Board of Directors of the 3rd respondent have filed this writ petition praying to quash Ext.P12 order passed by the 1st respondent, disqualifying them. The grounds on which disqualification is ordered are the irregularities in the meeting of the Board of Directors of the Society held on 08.04.2005 when 50B class shares were allotted, the irregularities in the meeting held on 23.05.2005, when 1253 A class shares and also the irregularities in the purchase of a Dialysis machine and Arthroscopic machine.
2. Facts of the case are that complaining against the enrolment of 1253 A class members, three members of the then Board of Directors of the Society, of which the petitioners were also members, had approached this court by filing W.P.(C) No. 20259 of 2005. That writ petition was disposed of by Ext.P1 judgment directing the 1st respondent to examine their complaints. However, it was made clear that "no member on the rolls will be removed without notice to them, if seen WPC 10711/08 (A) :2 :
necessary".
3. The 3rd respondent Society sought review of the judgment by filing RP No.674 of 2005 and another member of the Board of Directors also had filed W.P.(C) No.20667 of 2005. Both the aforesaid matters were disposed of by Ext.P2 dated 02.09.2005. The review petition was rejected and the complaints of the petitioner in W.P.(C) No.20667 of 2005 were directed to be considered by the Joint Registrar of Co-operative Societies. It was further directed that the allegation of the review petitioner that the petitioners who had filed the aforesaid writ petition had not participated in the meeting held on 23.05.2005 when it was resolved to enroll 1253 members is false, shall also be considered and enquired into.
4. In pursuance to Exts.P1 and P2 judgments, the 2nd Respondent, the Joint Registrar, conducted an enquiry with notice to all concerned and Ext.P3 order was passed. On enquiry, he found that the Board of Directors in the meetings held on 08.04.2005 and 25.05.2005 enrolled 50 B class members and 1253 A class members and that the said proceedings were perfectly in order. In so far as the acquisition of the dialysis WPC 10711/08 (A) :3 :
machine and the arthroscopic machine are concerned, the 2nd respondent recommended a detailed enquiry by a competent agency.
5. At that stage, certain other members of the society approached this court and filed W.P.(C) Nos.851 of 2006 and 1074 of 2006 seeking to stall the election that had fallen due and challenging Ext.P3 order. Those writ petitions were considered and this court passed Ext.P4, a common interim order, directing the Joint Registrar to make a factual verification regarding the allegations concerning the enrollment of 1253 members and submit a report before this Court. It was also directed that the election shall go on as scheduled and that the votes of serial Nos.7828 to 9080 in the voters list shall be put in separate boxes, counted separately and that results shall not be declared without obtaining orders from this Court. Accordingly election was held on 19.02.2006, but however, results were not declared. Cases were again considered by this court on 23.02.2006, when Ext.P5 order was passed. Taking note of the dispute regarding the enrollment of 1253 A class members and also regarding the enrollment of 50 B class members and finding that going by the WPC 10711/08 (A) :4 :
results, the outcome of the enquiry ordered as per Ext.P4 and the consequential proceedings are not going to make much difference in the result of the election, this court directed the Returning Officer to declare the results. Accordingly, results were declared and on 28.02.2006, the committee, which included the petitioners herein, assumed charge.
6. The Joint Registrar completed the enquiry ordered as per Ext.P4 and submitted his report dated 14.06.2006 to this court in a sealed cover. Writ Petition (Civil) Nos.851 and 1074 of 2006, came up for final hearing and in the meanwhile, members of the Board of Directors were also impleaded as Addl.
Respondents. By Ext.P7 judgment rendered on 12.09.2007, the writ petitions were disposed of directing;
"The Registrar of Co-operative Societies (General) will take up all the matters in relation to these cases, affecting the aforesaid Society and render appropriate decision and action, as may be necessary, in accordance with law. The final decision as above shall be arrived at within an outer limit of two months from the date of receipt of a copy of this judgment. Needless to say the necessary parties will be extended opportunity of being heard".
In the nature of the aforesaid disposal the reports provided in sealed cover and the departmental file have not been perused by this Court and are hereby returned to the Learned Special Government Pleader for Co- operation".
WPC 10711/08 (A) :5 :
In pursuance to Ext.P7 judgment the 1st respondent issued Ext.P8 notice fixing hearing on 05.12.2007, which was postponed to 12.12.2007, when the parties were heard.
7. Petitioners submit that long thereafter, they were served Ext.P9 order dated 19.03.2008 issued by the 2nd respondent making reference to an order dated 31.12.2007 passed by the 1st respondent in pursuance to Ext.P7 judgment and appointing an Administrative Committee. Ext.P9 states that in the order dated 31.12.2007, the 1st respondent had cancelled the resolutions dated 08.04.2005 and 25.05.2005 enrolling members in the society and that the 1st respondent had held that the four members of the Board of Directors, who are the petitioners herein, had acted against the interest of the society and rendered themselves ineligible to continue as members in view of Rule 44(1)(j) of the Rules and that therefore, the four persons were disqualified as per Rule 44(2)(c) of the Rules. Similarly as a consequence of a cancellation of the resolution dated 08.04.2005 enrolling 50 B class members, it has been held that two members of the Board of Directors representing B Class members have also lost their membership. Accordingly, it is held WPC 10711/08 (A) :6 :
in Ext.P9 that the Board of Directors, having a total strength of 11, lost quorum and on that basis an Administrative Committee was appointed.
8. On receipt of Ext.P9 order, on 24.03.2008, 8 members of the Board of Directors of the Society filed W.P.(C) No.9726 of 2008. On 27.03.2008, this court passed an interim order directing the respondents to serve a copy of the proceedings of the Registrar of Societies dated 31.12.2007 which was not served on the petitioners therein until then. Accordingly they were served order dated 31.12.2007 passed by the 1st respondent and it was thereupon that producing the order dated 31.12.2007 as Ext.P12, this writ petition was filed on 28.03.2008 with the aforesaid prayers.
9. Now, I shall deal with the contentions raised. The petitioners contended that Ext.P12 has been issued relying entirely on the report submitted by the Joint Registrar on an enquiry held under Section 65 of the Kerala Co-operative Societies Act (hereinafter referred to as `the KCS Act' for short) and the Ext.R1(b) report submitted by the Joint Registrar pursuant to Ext.P4 common order passed by this Court in W.P.(C) Nos.851 WPC 10711/08 (A) :7 :
and 1074 of 2006. In so far as these reports are concerned, it is the case of the petitioners that both these reports were not disclosed to them at any point of time and therefore, these reports could not have been relied on against them.
10. It was contended that by Ext.P12, resolutions passed on 08.04.2005 and 25.05.2005 were set aside without issuing notice to the committee as required under Rule 176 of the KCS Rules. It was also argued that when the resolutions were set aside, 1253 A class members and 50 B class members of the society were removed and that their removal could not have been ordered otherwise than in compliance with the directions in Ext.P1 and Ext.P7 judgments and Rule 16 of the Rules. According to the petitioners, in Ext.P12 they have been found to be disqualified to continue their membership on the ground that, according to the 2nd respondent, they had rendered themselves liable to be expelled from the membership of the Society as provided in Clause 11C of the Bye-laws. It is contended that power under Clause 11C is vested only in the general body and that the said power could not have been usurped by the Registrar. It is also their case, that notice proposing disqualification as provided WPC 10711/08 (A) :8 :
under Rule 44(3) was not given to the affected parties.
11. Counsel also contended that by Ext.P12 order, Ext.P3 order passed by the Joint Registrar is cancelled. It is contended that the Joint Registrar was exercising the powers of the Registrar and therefore Registrar, being only an authority of equal jurisdiction, could not have cancelled Ext.P3 order of the Joint Registrar. According to him the power of cancellation conferred on the Registrar is only under Rule 176 of the Rules, which could not have been exercised in relation to Ext.P3. It was his contention that both in Ext.P6 report of the Vigilance Department and in Ext.P12, it was reported that those who were complaining against the resolution passed by the Society on 25.05.2005 themselves had participated in the meeting and had received the sitting fee, and therefore their case of absence in the meeting and fabrication of documents were unworthy of acceptance. He also contended that once the fact that the meeting was held on 25.05.2005 is accepted, there is no basis for the conclusion that records were fabricated for giving membership to 1253 applicants. Counsel also contended that there was no allegation of any irregularity in relation to the meeting held on 08.04.2005 WPC 10711/08 (A) :9 :
when 50 B class members were enrolled.
12. On behalf of the Administrator, it was pointed out that the writ petition itself is liable to be dismissed as alternate remedy of appeal provided under Section 83(1)(j) of the Act was available to the petitioners. It was argued that the mere non disclosure of the reports relied on in Ext.P12 will not invalidate the order for violation of principles of natural justice, unless the petitioners have succeeded in pleading and proving that by the said omission, prejudice has been caused to them. It was also argued that once grounds to suffer expulsion from membership as provided under Clause 11C of the bye-laws is made out, that is sufficient to attract disqualification under Rule 44(1)(j) and that no formal order of expulsion was necessary for ordering disqualification.
13. On behalf of the 5th respondent, one of the complainants, it was asserted that they did not participate in the meeting of the committee held on 25.05.2005. According to the learned counsel, the power exercised by the Registrar while issuing Ext.P12 was the power under Rules 16(4) and 44(3) of the Rules. Therefore the mere fact that the Rule 44(1)(j), is quoted in WPC 10711/08 (A) :10 :
the order does not render the order illegal for that reason. Regarding the plea of the petitioners that the reports under Section 65 and Ext.R1(b) were not disclosed to them, counsel contended that following Ext.P7 judgment of this Court, the whole issue was to be considered by the Registrar and it was open to the Registrar to rely on those documents. In so far as Ext.P6 vigilance report is concerned, counsel contended that it is an incomplete report prepared without notice to the 5th respondent. Regarding the contention of the petitioners that Ext.P3 could not have been cancelled by the Registrar exercising his powers under Rule 176 of the Rules, learned counsel contended that Ext.P3 was under challenge in WP(C) No.851 of 2009 and that in Ext.P7 judgment, this court directed the Registrar to consider the entire issues which included the validity of Ext.P3 order as well.
14. On behalf of the 6th respondent, another complainant, it was argued that if for any technical reason, Ext.P12 is interfered with, that will result in the members who were enrolled on 08.04.2005 and 25.05.2005 continuing as members of the society. It was stated that since for the reasons stated in Ext.P12 their admission to the society was illegal, interference with WPC 10711/08 (A) :11 :
Ext.P12 will only result in resurrection of illegal membership. According to the learned counsel, the Agenda item of the meeting held on 23.05.2005 which was adjourned and held on 25.05.2005 did not contain admission of members, but the same was smuggled in, misusing the residuary item enabling introduction of items with the leave of the President. According to the counsel, introduction of a policy matter into the agenda in the manner it has been done is impermissible and reliance was placed on the judgment in Kodiyathur Panchayat v. District Panchayat Officer, Calicut (1977 K.L.T. 80). Answering the contention that in Ext.P12 it has been found that respondents 5, 6 and others who complained against the meeting of 25.05.2005 had participated in the said meeting and had received the sitting fee and therefore are estopped from contending otherwise, the learned counsel contended that the said finding is factually erroneous. According to him, even in the absence of an appeal filed by them against the said finding, they are entitled to canvass its incorrectness. To this context, counsel placed reliance on the judgment in Ravinder Kumar Sharma v. State of Assam (2000 (2) K.L.J. NOC 13).
WPC 10711/08 (A) :12 :
15. Learned Special Government Pleader supported
Ext.P12 order. According to her, the Registrar was to consider the entire issues with regard to the enrollment of 50 B class members and 1253 A class members and also regarding the acquisition of the Dialysis machine and Arthroscopic machine. These issues were to be considered pursuant to Ext.P7 judgment in the light of Ext.P3 order, Ext.R1(b) report and the report under Section 65 of the Act. It is stated that in pursuance to the judgment, by Ext.P8, hearing was scheduled on 05.12.2007, which was adjourned to 12.12.2007, when objections were filed by all and the parties were also heard. It is stated that considering the aforesaid material and the other evidence before him, the Registrar passed Ext.P12 order. Reference was made to paragraphs 18 to 20 regarding the admission of 1253 A class members, the findings in paragraphs 20 to 24 regarding the 50 B class members and also paragraph 24 regarding the acquisition of the equipments. It was stated that in view of the findings in Ext.P12, the Registrar was competent to take action in terms of Rule 44 of the KCS Rules.
Another plea raised was that since Ext.P8 notice was given, there was no necessity to give any further notice as contemplated in WPC 10711/08 (A) :13 :
Rule 44 (3) of the Rules before issuing Ext.P9.
16. On behalf of the additional 7th respondent, the invalidity of the admission of members was the point canvassed.
It was also contended that the petitioners should pursue the appellate remedy as available to them.
17. Before proceeding to deal with the contentions raised by the parties, I feel it appropriate to deal with a very disturbing issue arising in this writ petition in relation to the conduct of Sri. Suresh Babu, Additional Registrar of Co-operative Societies, who passed Ext.P12 order.
18. In paragraph 13 of the writ petition, it is averred that "the decisions stated to have been taken on 31.12.2007 was not actually taken on the day as stated in the order. The officer, who heard the matter contacted by the counsel who appeared on behalf of the petitioners even on 10th of March 2008. The reply given then was to the effect that the order is not ready. Challenging Ext.P9 order the petitioners filed writ petition before this court on 24.03.2008. On that day parties were ready to resist the said writ petition with the order so passed by the WPC 10711/08 (A) :14 :
Registrar on 31.12.2007 even though the copy of the said order was not served on the petitioners, who are the really affected by the order. Finally this court had to pass an order dated 27.03.2008 directing the Special Government Pleader to furnish a copy of the order dated 31.12.2007. On 27.03.2008, petitioners have received the order despatched from the office of the Registrar on 25.03.2008".
19. Taking note of the above averments in the writ petition, the files were ordered to be produced and this court passed order dated 04.06.2008 to retain the files in the safe custody of this court. It was also directed that Sri. Suresh Babu, shall file an affidavit as to when he drafted, approved and sent the original of Ext.P12 order and as to the dates on which he held charge of the post of Registrar of Co-operative Societies. Accordingly, Sri. Suresh Babu filed affidavit dated 07.06.2008 and paragraphs 4 and 5 being relevant, are extracted below for reference:
"It is respectfully submitted that I was in charge of the post of Registrar of Co-operative Societies from
20.11.2007 to 31.12.2007. While I was in charge of the post, hearing of the parties were conducted in compliance WPC 10711/08 (A) :15 :
with the direction of this Honourable Court in judgment dated 12.09.2007 in W.P.(C)Nos. 851/06, 1074/06 and C.C.83/06. Even though the first hearing of the matter was posted on 28.11.07 due to some inconvenience it was postponed to 12.12.07. All the parties were informed about the postponement. On 12.12.2007 they were heard in detail. All the documents in connection with the matters were collected. After going through all the documents and evidence in connection with the matter I prepared a draft order on 31.12.2007, the last day on which I was in charge of the office. I signed the draft order on that day itself. Then it was sent to the Confidential Assistant for typing. The typing and correction by me of the order took some more time. My busy schedule in connection with the work relating to Legislative Assembly Session and being out of Station for attending campaign in connection with the programme "Sahakarana Navarathna Keraleeyam - Sadasadamanam Kudissika Nivaranam", Deposit Mobilisation Campaign 2008 and revitalisation of Sahithya Pravarthaka Sahakarana Sangam (SPCS) have caused some delay for looking into the matter by me. The approaching financial year ending also was a reason. The final typed copy of the order was placed before me on 15.3.2008 by the concerned Officials. The same was signed and sent to the Despatch Section on 17.3.2008.
It is further submitted that the usual practice followed in Government Department with regard to the date of final order in a proceedings is that of the date on which the draft order is approved. In the present case on 31.12.2007 I approved the draft order. So Ext.P12 order is passed on the date 31.12.2007. The delay in issuing the order was not deliberate or intentional. It was due to my busy schedule and administrative exigency." (emphasis supplied)
20. Subsequently, Sri. Suresh Babu appeared before this court on 13.06.2008 and was questioned in detail and this court WPC 10711/08 (A) :16 :
passed an order directing that the computer which was used for typing Ext.P12 order shall be kept under the control of the Registrar directly to ensure that there was no further deletion of documents or any manipulation of the hard disk and other hardware or software. Again this court passed order dated 16.06.2008, and paragraph 3, being relevant, is extracted below for reference:
"On the basis of submissions made on either side, the Additional Director of CDAC, Vellayambalam, Thiruvananthapuram is requested to examine the machine that Jerry used for preparing the version available at pages 861 onwards, having in view what is stated above. Effort will be made to identify whether the said document was created originally in that machine or whether the document was copied into the machine and saved, modified or later deleted. It shall also be ascertained as to how many times the said document has been modified. Such further details as may be necessary to identify whether the said document has been created in the said machine shall also be made available. The Registrar of Co-operative Societies will ensure the availability of Jerry and if necessary, Sri. Suresh Babu, to identify the machine in which the work in question was carried out to enable the Additional Director of CDAC to do the needful to give effect to this order and place a report before this Court on or before 20-6-2008 in a sealed cover. To aid such process, the Government File No.M.T.(1)49795/2007 shall be made available to the Additional Director, CDAC along with a copy of this order. The file is hereby returned to the learned Special Government Pleader for Co-operation".
WPC 10711/08 (A) :17 :
21. Again, Order dated 25.07.2008 was passed directing Sri. Suresh Babu to make available his tour diary, if he maintains one. It was also directed that Sri. Jerry shall explain when draft of the order was made by him and handed over to Sri. Suresh Babu for correction. Accordingly, an affidavit and a statement were filed by them on 30.07.2008. The relevant portion of the affidavit filed by Sri. S. Jerry reads as under:
"6. It is submitted that my computer was having a Malayalam Software called Sulipi. In that computer I typed the manuscript one or two days prior to 15.3.2008. After that corrections was made and matter was copied to Microsoft word in the same computer. From that final copy was taken and placed before Additional Registrar on 15.3.2008. In that final copy, again certain corrections were made by Additional Registrar and the same was entered in the computer. On 17.3.2008 fair copy of order was taken and placed before Additional Registrar for signature. After 17.3.2008 no entry other than change in the address of some of the persons to whom the above order has to be dispatched is made by me in connection with this matter.
7. It is submitted that the busy schedule of Additional Registrar of Co-operative Societies in connection with the work relating to Legislative Assembly Session and being out of office for attending campaign in connection with the programme "Sahakarana Navarathnam Keraleeyam - Sathsathamana Kudissika Nivaranam", Deposit Mobilisation Campaign 2008 and revitalization of Sahithya Pravarthaka Sahakarana Sanghom (SPCS) have caused some delay for typing Ext.P12 order because the manuscript can be typed only with the help of Additional Registrar of Co-operative WPC 10711/08 (A) :18 :
Societies (Credit). The delay in typing Ext.P12 order was not deliberate or intentional. It was due to administrative exigency existed in office.
8. In the circumstances, it is humbly prayed that this Honourable Court may be pleased to condone the delay if any caused by me in typing the Ext.P12 order". (emphasis supplied)
22. Annexures A1 to A3 to the statement dated 30.07.2008 filed by Sri.Suresh Babu, are his tour diary, which are extracted below for reference:
ANNEXURE A1 TOUR DIARY OF K.V. SURESH BABU, ADDITIONAL REGISTRAR OF CO- OPERATIVE SOCIETIES (CREDIT), O/o. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM FOR THE MONTH OF JANUARY 2008 DATE & MODE OF TIME FROM TO CONVEYA DISTANCE PURPOSE OF VISIT NCE 16-1-2008 Thiruvananth Kozhikode & Rail 414 Km Proceeded to attend the 8.45PM-6.15 apuram Halt "Sathasathamanam AM(17-1-08) Keraleeyam" meeting at Kozhikode 17-1-2008 Halt at Attended the Meeting Kozhikode 17-1-2008 Kozhikode Thiruvanant Rail 414 Km Return Journey to Head 7.05Pm-9 hapuram Quarters am(18-1-08) 31-1-2008 Thiruvananth Alappuzha Vehicle 157 Km Proceeded to Alappuzha - 5Amto3pm apuram (KSCB) Attended Inaugural function of `Sathasathamanam Keraleeyam' & proceeded to Thiruvalla 31-1-2008 Thiruvalla Thiruvanant Vehicle 128 Km Attended the meeting on 3pmto11pm hapuram (KSCB) financial assistance distribution at Thiruvalla & return journey to Head Quarters WPC 10711/08 (A) :19 :
ANNEXURE A2 TOUR DIARY OF K.V. SURESH BABU, ADDITIONAL REGISTRAR OF CO- OPERATIVE SOCIETIES (CREDIT), O/o. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM FOR THE MONTH OF FEBRUARY 2008 MODE OF DATE & TIME FROM TO CONVEYA DISTANCE PURPOSE OF VISIT NCE 29-2-2008 Thiruvanant Kannur Rail 504 Km Proceeded to Kannur 7.25pm-5.50am hapuram - Deposit (1-3-08) Mobilisation Campaign - State Level Inauguration ANNEXURE A3 TOUR DIARY OF K.V. SURESH BABU, ADDITIONAL REGISTRAR OF CO- OPERATIVE SOCIETIES (CREDIT), O/o. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM FOR THE MONTH OF MARCH 2008 MODE OF DATE & TIME FROM TO CONVEYA DISTANC PURPOSE OF VISIT NCE E 1/3/2008 Halt at Attend the inaugural 5.50am-9pm Kannur function of Deposit Mobilization Campaign
- State Level Inauguration 2-3-2008 Kannur Thiruvanant 504 Km Return Journey to Head 9pm-7.30am hapuram Quarter (2-3-2008)
23. He has also stated that in January 2008, he attended meetings and conferences on 16th to 18th and 31st January 2008. In February, he attended conferences on 11th, 13th, 15th, 21st, 22nd and 28th February 2008. He also claims to have attended meetings on 6th and 13th of March 2008 as well. He has also disclosed about the other discussions and the number of files he had attended and also the work he did in respect of answering the WPC 10711/08 (A) :20 :
legislative assembly, interpellation etc.
24. In the order dated 05.09.2008, this court noticed that the Centre for Development of Advanced Computing (CDAC) had returned the documents received from the office of the Registrar of Co-operative Societies following the earlier directions and accepted the analysis report forwarded under cover of their letter dated 01.09.2008 on record. While returning the file which led to the impugned order to the Special Govt. Pleader, this court retained the draft of Ext.P12 order which was available at pages 861 to 923 of the file.
25. In the report of CDAC, after explaining the investigation, suspect device details and analysis set up, the Observations and Conclusion made by the CDAC, and Annexure 1, reads as under:
"Observations (For details, refer annexure) Analysis was done on the bit stream copy of the Hard Disk seized from the Office of Registrar, Co-operative Societies, Thiruvananthapuram as directed by the Hon'ble High Court of Kerala.
1) We analyzed all files from the file list with extensions .doc, .txt, .jpeg, .psd, .pmd, .cdr, and .tiff for evidences related to the request in the forwarding note using Cyber Check 3.1 and Encase Version 3.20.
2) The image files in the bit stream copy were analyzed using WPC 10711/08 (A) :21 :
the gallery view option of the analysis tool to see whether some scanned copies of the said document is available in the hard disk.
3) We found two document files in the bit stream copy of the seized Hard Disk which have the content as in the specimen document submitted along with the forwarding note.
Conclusion
1) We found two document files in the bit stream copy of the seized Hard Disk which have contents as in the specimen document submitted along with the forwarding note.
2) The details and contents of the identified files are attached in Annexure 1 of this report.
3) The files are attached in Annexure 2 of this report.
4) The properties of file "Thrissur DCH.doc" show that it was created on "03/10/08 11:47:23AM" and the properties of file "THRISSUR DC HOSPITAL (REPORT).doc" show that it was created on "03/11/08 05:20:36PM".
5) We couldn't find any evidence to show that the file was copied into the machine and saved, modified or later deleted.
6) The properties of the file "THRISUR DC HOSPITAL (REPORT). doc" show that this file was modified and saved 39 times. The details are attached in Annexure 3.
7) The properties of the file "Thrissur DCH.doc" show that this file was modified and saved only once. This could be because the file was created using some other applications. One such application "SULIPI" was installed in the machine. The file details are attached in Annexure 4. We created one file using SULIPI and the properties of this file show that it was modified only once.
8) The file "THRISSUR DC HOSPITAL (REPORT).doc" seems to be the edited version of the file "Thrissur DCH.doc".
WPC 10711/08 (A) :22 :
Annexure 1
Note: The details of the identified files are given here and contents are attached in Annexure 2 of this report.
File 1
File name THRISSUR DC HOSPITAL (REPORT).doc
Short Name THRISS~1.DOC
File Ext doc
Description File, Archive
Last Accessed 06/12/08 10:57:13AM
Last Written 03/22/08 12:09:02PM
File Created 03/11/08 05:20:36PM
Entry Modified 03/22/08 01:25:29PM
Logical Size 122,368
Physical Size 122,880
File Type Word Document
File Category Document
File Identifier 26,617
Starting Extent 0C-C369234
Physical Location PS:2953935, SO:0
Full Path C\Documents and Settings\user\My Documents\
THRISUR DC HOSPITAL(REPORT).doc
File Content
The above mentioned file is attached in Annexure 2 of this report.
File 2
File name THRISSUR DCH.doc
Short Name THRISS~2.DOC
File Ext doc
Description File, Archive
Last Accessed 06/14/08 10:58:11AM
Last Written 03/15/08 05:09:04PM
File Created 03/10/08 11:47:23AM
Entry Modified 03/17/08 12:27:46PM
Logical Size 47,104
Physical Size 49,152
File Type Word Document
WPC 10711/08 (A) :23 :
File Category Document
File Identifier 10,656
Starting Extent 0C-C1923401
Physical Location PS:15387271, SO:0
Full Path C\Program Files\Microsoft Office\Office\ Thrissur
DCH.doc
File Content
The above mentioned file is attached in Annexure 2 of this report."
26. The aforesaid facts show that Sri. Suresh Babu, author of Ext.P12, held charge of the post of Registrar of Co-operative Societies only during the period from 20.11.2007 to 31.12.2007. He claims to have gone through all the documents and evidence and prepared a draft order on 31.12.2007, approved and signed the draft on that day itself. According to him, on 31.12.2007 itself, the draft signed by him was sent for typing to Sri. S. Jerry, his Confidential Assistant. Thereafter he was busy with his official works and the final order was placed before him on 15.03.2008 and the same was signed with the date 31.12.2007 and sent to the despatch section on 17.03.2008. According to him, as per the usual practice followed by the Government Departments, the date on which the draft is approved is the date of final order and asserts that draft of Ext.P12 was approved on 31.12.2007 and therefore Ext.P12 order was passed on 31.12.2007.
WPC 10711/08 (A) :24 :
27. Affidavit of Sri. S. Jerry discloses that the first time he typed the order was one or two days prior to 15.03.2008 and final copy was taken on 15.03.2008 and placed before the Additional Registrar. It is stated that in that final copy again corrections were carried out by the Additional Registrar which were entered in the computer and on 17.03.2008 fair copy of the order was taken and placed before him for signature.
28. A combined reading of these two affidavits show that it is the case of Sri. Suresh Babu that he prepared the manuscript of the order on 31.12.2007 and had sent it to his Confidential Assistant for typing and the typing and correction took time. He has no case that in the final copy placed before him on 15.03.2008 any further correction was carried out. As against this, in the affidavit filed, Jerry has no case that he received the manuscript, immediately after 31.12.2007. The story that the final copy placed before the Registrar on 15.03.2008 was corrected by the Additional Registrar also is an addition by Sri. Jerry. Both Suresh Babu and Jerry admits that the manuscript allegedly prepared and signed on 31.12.2007 is not available. If the draft available in the files is taken as the manuscript, that WPC 10711/08 (A) :25 :
could not have been typed before March 2008, since most of the pages are printed on the reverse side of notice dated 03.03.2008 of a meeting scheduled on 18.03.2008. Therefore, if as claimed by Sri. Suresh Babu, he had signed the draft prepared by him on 31.12.2007, and that is the date on which he passed the order, the original signed by him is missing from the files. On the other hand if what is available in the file is the draft that he had prepared, this draft was prepared only in March 2008 and is a backdated one.
29. If as claimed by him, Sri.Suresh Babu has prepared the draft order on 31.12.2007, it is improbable and unbelievable that he would left the order with Jerry, without any follow up, till he typed it out only in the 2nd week of March 2008. Sri. Suresh Babu made an attempt to explain the so called delay in passing the order, referring to his occasional tours, meetings, files he had attended etc. The tall claims made by him in this behalf are belied by the tour diary produced and the averments in the statement dated 30.07.2008. It is evident that the story of tours he has undertaken, the meetings that he participated or the files he dealt with, are only after thoughts to sustain the false claim of having WPC 10711/08 (A) :26 :
drafted Ext.P12 order on 31.12.2007. In any case, if Jerry typed the order only in March 2008, the official commitments of Suresh Babu, explained in his statement, could not have contributed to the delay.
30. Annexure 3 and 4 to the report of CDAC show that the properties of the file "THRISSUR DC HOSPITAL (REPORT).doc" was modified and saved 39 times. This suggests that even if a draft was prepared on 31.12.2007, that has undergone drastic changes and if so, it is too unrealistic to say that the order should carry the date on which the first draft was allegedly prepared. Further, Annexure 1 to the report of CDAC shows that the file Thrissur District hospital Doc was last written and entry was modified even on 22.3.2008. This also contradicts the averments in the affidavit of Suresh Babu that final print of Ext.P12 was taken on 15.3.2008 and that the said order was signed and sent to the despatch section on 17.03.2008. The affidavit of Jerry says that after 17.03.2008, change in the address of persons to whom the order was to be sent were made. This again, if true, proves the felicity of Suresh Babu's case that the order was sent to despatch section on 17.03.2008. That apart, this report of CDAC also indicates that WPC 10711/08 (A) :27 :
Ext.P9 could not have been issued by the 2nd respondent on 19.03.2008, since the said order is issued relying entirely on Ext.P12, which is found have been modified even on 22.03.2008.
31. These facts would show that Ext.P12 is a backdated document created by Sri. Suresh Babu after ceasing to be in charge of the office of Registrar of Co-operative Societies and that false affidavits have been filed and deliberate attempt was made to mislead this court. Such reprehensible conduct of high ranking officers cannot be condoned and they should answer the charges for their deliberate misconducts. For the incorrect averments in paragraph 8 of the counter affidavit filed on behalf of the 1st respondent, Smt.P.K. Nirmala, Dy. Registrar (Credit) is also liable for action. However, I refrain myself from initiating action against her. Similar, is the case of Jerry, but however, I do not propose to pass any order against him also, since he must have been acting at the dictates of his master.
32. Having considered the submission made by the respective counsel, I am satisfied that my finding about Ext.P12 order itself should vitiate the whole proceedings. However, since other issues have been canvassed by both sides, I consider it WPC 10711/08 (A) :28 :
appropriate to deal with them also.
33. Ext.P12 order discloses that the same has been issued entirely relying on the findings in the report under Section 65 of the Act and Ext.R1(b) report submitted pursuant to the directions of this court in Ext.P4 order. Rule 66 of the KCS Rules deals with the procedure for the conduct of enquiry under Section 65 of the Act. Sub Rule 5 inter alia provides that once a report is received, the Registrar shall pass such orders thereon as may be considered just, after giving a reasonable opportunity of being heard to the society, person or persons concerned. Thus, Rule 66 sets out the procedure for the conduct of enquiry and sub Rule 5 contemplates that action in pursuance to a report submitted is to be taken by a separate order which is required to be passed by the Registrar after giving a reasonable opportunity to the society or the person concerned. This necessarily includes a duty to disclose the report to those persons who are affected by the report. In this case, the fact that the report was not disclosed to the society or the petitioners, is not disputed either by the learned Government Pleader or the Counsel appearing for the party respondents. If so, for that reason itself, Ext.P12 order is illegal.
WPC 10711/08 (A) :29 :
34. In so far as Ext.R1(b) report is concerned, that was submitted pursuant to Ext.P4 order passed by this court in W.P.(C) Nos.853 and 1026 of 2009. The report was submitted to this court in sealed cover and when the writ petitions were disposed of by Ext.P7 judgment, the report was returned to the Special Government Pleader without perusing them. This fact is mentioned in the judgment itself. This report was not disclosed to any of the parties during the course of the enquiry, but is relied on in Ext.P12 order. The principle that in a proceeding against a person, a document, the contents of which was not disclosed to him, cannot be relied on to his prejudice, is too well settled a principle of natural justice and needs no reiteration. (See in this connection the Apex Court judgment in Khan Singh v. State Transport Appellate Tribunal (AIR 1988 SC 18). It was argued that the mere violation of principles of natural justice will not invalidate the order unless prejudice is caused. In my view, in these proceedings, prejudice is self evident and therefore this argument does not carry any weight. Consequently, for this reason as well Ext.P12 order deserves to be held illegal.
WPC 10711/08 (A) :30 :
35. A reading of Ext.P12 order shows that the resolution dated 08.12.2005 granting B Class membership and dated 25.05.2005 granting A Class membership have been rescinded by the 2nd respondent, as a result of which, the aforesaid members have been removed from the membership of the society. As far as the power of the Registrar to rescind resolution passed by the society is concerned, such power can be exercised only in terms of Rule 176 and only with notice to the committee of the society concerned. It is not the case of the Registrar that the procedure for exercising the power under Rule 176 has been complied with while canceling the resoluition. In so far as removal of members is concerned, first of all in Ext.P1 judgment this court had directed that no member on the rolls will be removed without notice to them. In Ext.P7 judgment in W.P.(C)Nos.851 and 1074 of 2006 also it was directed that parties affected will be extended an opportunity of being heard. Both these directions have not been complied with. That apart, Rule 16 (4) of the KCS Rules conferring power on the Registrar to remove member of a Society also provides that such removal shall only be with notice to the member concerned. These requirements also have not been WPC 10711/08 (A) :31 :
complied with. The justification offered in Ext.P12 appears to be that the members were wrongly admitted and therefore they need not be put on notice. In my view, this is an absolutely unsustainable justification and the directions of this court in Exts.P1 and P7 judgments and the procedural formalities laid down in the rules could not have been bypassed by this explanation. In any case, if the statute requires something to be done in a particular manner it can be done only in that manner or not at all. In this case, admittedly, the procedural formalities have not been complied with.
36. It was argued that, if a person suffers a disqualification under the bye-laws, there is no requirement of putting him on notice. If I am to accept this contention, the statutory prescriptions contained in Rule 44 of the Rules dealing with disqualification of member of committee will have to be ignored, in as much as sub rule 3 specifically provides that the Registrar may pass an order under the Rule only after giving the person concerned an opportunity to state his objection against the proposed action and that if the person wishes to be heard, he shall be given an opportunity to be heard. Sri. P.C. Sasidharan, WPC 10711/08 (A) :32 :
appearing for the Administrator argued that the existence of a ground to suffer disqualification under the bye-laws is sufficient to attract Rule 44 (1)(j) and that no formal order of removal is necessary. Having considered this submission I feel that this plea is only to be rejected for the reason that the same is opposed to the Act and the Rules. In any case, if I am to accept this plea, the entire members of the committee will be left at the mercy of the Registrar who will have uncontrolled power to disqualify members of an elected committee on his whims and fancies.
37. I should also notice that one of the contentions raised was that if Ext.P12 is interfered with that will result in resurrection of illegal memberships granted by the society. I am not prepared to shut my eyes to illegalities committed by the statutory authorities and to uphold an illegal order passed to the prejudice of the petitioners, accepting this contention. As far as the contention that the allotment of membership could not have been introduced in the Agenda of the meeting held on 23.05.2005, which was adjourned and held on 25.05.2005 is concerned. I don't consider it necessary to deal with this contention, since such a ground was not relied on in the impugned order and as the WPC 10711/08 (A) :33 :
validity of the order has to be tested in the light of the reasons stated therein. Having regard to the above findings, it is also not necessary to deal with the contentions raised by the respondents about the alleged incorrect finding in the impugned order about their having participated in the meeting held on 25.05.2005.
38. Another contention which was seriously canvassed was that the remedy available to the petitioners was to have pursued the appellate provisions provided in the statute and not to invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. True, statute provides an alternate remedy but the rule of alternative remedy is only a self imposed restriction and is not a statutory or constitutional mandate. In this case, I have not had to resolve any disputed questions of fact incapable of being resolved in this proceedings. That apart, the writ petition having been admitted, several interim orders have been passed, parties have filed affidavits and arguments were heard on the entire controversy and I do not think that at this distance of time, this court should decline to examine the controversy and relegate the petitioners to pursue statutory remedies.
WPC 10711/08 (A) :34 :
39. In the result the writ petition will stand disposed of.
(1) Ext.P12 order passed by the 1st respondent will stand set aside.
(2) Secretary to Government, Department of Co-operation is directed to take note of the findings in this judgment against Sri.Suresh Babu, Addl. Registrar of Co-operative Societies in creating a fabricated pre-dated document. The Secretary shall take appropriate action in the matter with the seriousness it deserves and a report in this behalf shall be filed before this court within one month of receipt of a copy of this judgment.
(3) Registrar (General) will forward a copy of this judgment to the Secretary to Government, Department of Co-operation, Government of Kerala.
(4) The file, the draft order dated 31.12.2007 retained by this court and the report of CDAC shall be returned to the Special Government Pleader for Co-operation for further action in the matter as directed above.
Writ petition will stand allowed as above.
ANTONY DOMINIC, JUDGE
WPC 10711/08 (A) :35 :