Kerala High Court
V. Dinakaran vs The Registrar on 14 July, 2016
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 31ST DAYOF JANUARY 2017/11TH MAGHA, 1938
WP(C).No. 38904 of 2016 (K)
----------------------------
PETITIONER(S):
------------------------
V. DINAKARAN, EX. M.L.A., CHAIRMAN,
MANAGING COMMITTEE, MATSYAFED,
THIRUVANANTHAPURAM- 695 001.
BY ADV. SRI.GEORGE POONTHOTTAM.
RESPONDENT(S):
-------------------------
1. THE REGISTRAR,
FISHERIES CO-OPERATIVE SOCIETIES,
THIRUVANANTHAPURAM -695 001.
2. SRI.V. MANOMOHANAN,
FISHERIES JOINT DIRECTOR (SOUTH ZONE),
THIRUVANANTHAPURAM -695 001.
3. MR.YESURAJAN, PRESIDENT,
KOCHUTHURA FISHERIES CORPORATIVE SOCIETY,
THIRUVANANTHAPURAM.
R1 BY SRI.C.P. SUDHAKARA PRASAD, ADVOCATE GENERAL.
R3 BY ADVS. SRI.N.RAGHURAJ,
SRI.T.B.HOOD.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 25/01/2017, THE COURT ON 31/01/2017 DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 38904 of 2016 (K)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 14-07-2016 SUBMITTED BY
THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE ORDER NO.F3/11472/2016 DATED 01-10-2016
PASSED BY THE 1ST RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE ORDER NO.F3/1551/2016 DATED 02-11-2016
PASSED BY THE FISHERIES JOINT DIRECTOR.
EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 31-10-2016 ISSUED BY
THE 1ST RESPONDENT.
RESPONDENT'S EXHIBITS:-
ANNEXURE R1A COPY OF THE ENQUIRY REPORT DATED 26/12/2016.
EXT.R3A COPY OF THE REPRESENTATION SUBMITTED BY THE
3RD RESPONDENT BEFORE THE MANAGING DIRECTOR.
//TRUE COPY//
P.S.TO JUDGE
rs.
C.R.
P.B.SURESH KUMAR, J.
= = = = = = = = = = = = = =
WP.(C).No.38904 of 2016-K.
= = = = = = = = = = = = = =
Dated this the 31st day of January, 2017.
J U D G M E N T
The petitioner is the Chairman of the managing committee of the Kerala State Co-operative Federation for Fisheries Development Ltd. (the Matsyafed). The Matsyafed is the apex society of the Primary Fishery Co-operative Societies in the State. By Ext.P2, the first respondent ordered an inquiry into the affairs of the Matsyafed under Section 65 of the Kerala Co- operative Societies Act (the Act). The second respondent is the inquiry officer appointed as per Ext.P2 order. In Ext.P2 order, it is stated, among others, that complaints have been received by the first respondent against the managing committee of the Matsyafed raising serious allegations such as, misappropriation, corruption, illegal appointments, wilful disobedience and failure in complying with the lawful orders of the Registrar and the WP.(C).No.38904/2016-K. 2 Government, negligence in the matter of implementing debt relief schemes, failure and wilful negligence in completing the Plants of the Matsyafed, irregularities in the distribution grants and loans, etc.; that the preliminary enquiry conducted in this connection revealed that the allegations are of substance and therefore, it was found necessary to conduct an inquiry into the affairs of the Matsyafed in respect of matters specified therein under Section 65 of the Act. According to the petitioner, the complaints, on the basis of which the preliminary enquiry was conducted, were complaints master minded by the Minister of Fisheries in the present Government, who was the earlier President of the Matsyafed, on account of political rivalry; Ext.P2 order was issued with a view to supersede the managing committee of Matsyafed and that the same is, therefore, vitiated by mala fides. It is alleged that a complaint has been secured by the respondents for the said purpose from the third respondent, the President of one of the affiliated societies of the Matsyafed. It is also the case of the petitioner that the second respondent who is appointed as the inquiry officer as per Ext.P2 order has appointed several WP.(C).No.38904/2016-K. 3 others to conduct the inquiry as per Ext.P3 order and that the inquiry which is being conducted by the second respondent through the officers appointed by him, is illegal and without jurisdiction. It is also alleged by the petitioner that the respondents seem to have taken the stand that the inquiry is over by issuing Ext.P4 notice directing the petitioner and other members in the managing committee of the Matsyafed to offer explanations relating to the matters specified in Ext.P2 order; that it is humanly impossible to complete the inquiry ordered as per Ext.P2 within such a short span of time; that if what is pretended by them as regards the inquiry is correct, the report, if any, submitted would not be one secured in the inquiry, but one prepared at the dictates of the persons interested solely with a view to supersede the managing committee of the Matsyafed. The petitioner, therefore, challenges Exts.P2 and P3 orders in this proceedings. He also seeks a declaration that no inquiry has been conducted as provided for under Section 65 of the Act.
2. A statement has been filed on behalf of the first respondent reiterating the contents in Ext.P2 order. It is recited WP.(C).No.38904/2016-K. 4 in the statement that misappropriation of huge amounts, unauthorised appointments, malpractices in the construction and installation of machineries in the factories of the Matsyafed, nepotism and corruption of the members of the managing committee, etc. were revealed in the report of the preliminary enquiry conducted and it is on account of the said reason that a detailed inquiry under Section 65 of the Act has been ordered as per Ext.P2. It is also recited in the statement that since it was found that the inquiry officer alone cannot conduct the inquiry having regard to the enormous volume of the work involved, the inquiry officer was permitted to constitute a team by the first respondent and Ext.P3 order was issued by the inquiry officer in the said circumstances. According to the first respondent, Exts.P2 and P3 orders do not, therefore, suffer from any illegality.
3. It is seen that a memo has been filed by the learned Special Government Pleader on 18.01.2017 stating that the inquiry ordered as per Ext.P2 order has been completed during the pendency of the writ petition. The report of the WP.(C).No.38904/2016-K. 5 inquiry ordered as per Ext.P2 has also been produced along with the memo.
4. Heard the learned counsel for the petitioner as also the learned Advocate General for the respondents.
5. Relying on the provisions contained in Section 65 of the Act, especially the expression 'by a person' therein, the learned counsel for the petitioner contended that only one officer can be appointed to conduct an inquiry under the said provision. According to the learned counsel, in so far as the second respondent was appointed as the inquiry officer as per Ext.P2 order, the inquiry ordered under the said provision should have been conducted and completed by the second respondent himself and since the inquiry has not been conducted by the second respondent himself, the report cannot be acted upon for any purpose whatsoever. Reliance was placed by the learned counsel on the maxim delegatus non potest delegare, in support of the said contention. It was also contended by the learned counsel for the petitioner that the petitioner has not been given an opportunity of hearing before the report was submitted by the WP.(C).No.38904/2016-K. 6 second respondent.
6. Per contra, the learned Advocate General pointed out that the officers mentioned in Ext.P3 order are officers deployed by the first respondent for the purpose of enabling the second respondent to conduct the inquiry ordered as per Ext.P2. Relying on the provisions contained in Section 12 of the Interpretation and General Clauses Act, 1125, the learned Advocate General contended that the words in the singular shall be construed in appropriate cases as plural as well while interpreting statutes and therefore, it cannot be contended that the inquiry is vitiated merely for the reason that the same has been conducted by a group of officers. The orders issued by the first respondent deploying officers mentioned in Ext.P3 order for the inquiry ordered as per Ext.P2 were also made available by the learned Advocate General at the time of hearing.
7. The learned counsel for the third respondent contended that the Matsyafed is a mighty establishment having several offices in the State and since it was found impossible for one officer to conduct an inquiry in the nature of one ordered as WP.(C).No.38904/2016-K. 7 per Ext.P2 within a reasonable time, the first respondent has deployed officers to help the second respondent to conduct the inquiry by collecting the requisite information. According to the learned counsel, such deployment of officers will not go against the maxim delegatus non potest delegare.
8. I have considered the rival submissions made by the learned counsel for the parties on either side. The contention of the learned counsel for the petitioner that only one officer can be appointed for an inquiry under Section 65 of the Act cannot be accepted at all. As conceded by the learned counsel for the petitioner himself, in a mighty establishment like the Matsyafed, having several offices throughout the State, an inquiry of the instant nature cannot be completed by one officer within a reasonable time. As such, if the interpretation given to the provision by the learned counsel for the petitioner is accepted, the mechanism provided for under Section 65 of the Act would fail in cases of this nature. An interpretation which would negate the intendment of the legislature and frustrate the statutory provision cannot be accepted [See Gurpreet Singh Bhullar v. WP.(C).No.38904/2016-K. 8 Union of India, (2006) 3 SCC 758]. I have, therefore, no hesitation to hold that the expression 'by a person' contained in Section 65 of the Act does not preclude the competent authority from appointing more than one officer for conducting an inquiry under Section 65 of the Act. A similar view has been taken by this Court in WP.(C).No.23163 of 2009.
9. 'Delegatus non potest delegare' - a delegate who is authorised by the principal cannot, in turn delegate his authority to a delegate of his own, is a principle well settled. The principle is that a discretion conferred by statute is prima facie intended to be exercised by the authority on whom the statute has conferred it and not by any other authority. The maxim does not embody a rule of law. It indicates only a rule of construction of a statute or other instrument conferring an authority. As such, the application of the maxim depends on the provisions in the statute. The orders made available to me by the learned Advocate General by which the first respondent has deployed officers for the purpose of conducting the inquiry ordered as per Ext.P2 indicate that the officers referred to in Ext.P3 were officers deployed for assisting WP.(C).No.38904/2016-K. 9 the second respondent for completing the inquiry. The conduct of the second respondent in getting the ministerial work involved in the inquiry done through others would not amount to sub- delegation attracting the principle, delegatus non potest delegare. It is apposite in this context to refer to a passage from the decision of the Apex Court in Sidhartha Sarawgi v. Kolkata Port [(2014) 16 SCC 248]. The passage runs thus:
"So long as the essential function of decision making is performed by the delegate, the burden of performing the ancillary and clerical task need not be shouldered by the primary delegate. It is not necessary that the primary delegate himself should perform the ministerial acts as well. In furtherance of the implementation of the decision already taken by the primary delegate as per the delegation, ministerial or clerical tasks may be performed by authorised officers. The complexity of modern day administration and the expansion of functions of the State to the economic and social spheres have made it necessary that the legislature gives wide powers to various authorities when the situation requires it. Today's governmental functions are a lot more complex and the need for delegation of powers has become more compelling. It cannot be expected that the head of the administrative body performs each and every task himself."
In the light of the said decision of the Apex Court, the argument WP.(C).No.38904/2016-K. 10 advanced placing reliance on the maxim, delegatus non potest delegare also fails.
10. Coming to the contention raised by the learned counsel for the petitioner that the petitioner was not afforded an opportunity of hearing by the inquiry officer, I must mention that the statute does not contemplate the inquiry officer to give an opportunity of hearing before the report of inquiry under Section 65 of the Act is submitted. An opportunity of hearing is not required to be given also for the reason that the report of inquiry does not affect the rights of parties. The rights of the parties would be affected only when the report is acted upon for a purpose. Going by the scheme of the statute, the report of inquiry can be relied on for the specific purposes referred to in the statute and the opportunity of hearing is contemplated only when the report of inquiry is acted upon for the specific purposes referred to in the statute. Further, it is seen that though the petitioner and other members of the managing committee have been given an opportunity of hearing by the inquiry officer by issuing Ext.P4 notice, they refused to appear before the inquiry WP.(C).No.38904/2016-K. 11 officer on the ground that the inquiry is not one conducted in accordance with the provision contained in Section 65 of the Act. The petitioner, in the circumstances, cannot be heard to contend that he was not given an opportunity of hearing before the report was submitted by the inquiry officer.
For the aforesaid reasons, there is no merit in the writ petition and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Kvs/-
// true copy //