Kerala High Court
K.A. Sukumaran vs The Joint Registrar Of Co-Operative ... on 3 December, 2012
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 3RD DAY OF DECEMBER 2012/12TH AGRAHAYANA 1934
WP(C).No. 28258 of 2011 (F)
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PETITIONERS:
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1. K.A. SUKUMARAN, PRESIDENT,
ADAT FARMERS' SERVICE CO-OPERATIVE BANK
LIMITED NO.R 689, P.O, PURANATTUKARA,
THRISSUR.
2. C.L.SIMON, VICE PRESIDENT,
ADAT FARMERS'SERVICE CO-OPERATIVE BANK
LIMITED NO. R 689, P.O,PURANATTUKARA,
THRISSUR.
3. K.SURESHAN, MEMBER, BOARD OF DIRECTORS
OF THE ADAT FARMERS' SERVICE CO-OPERATIVE BANK
LIMITED NO. R 689,P.O, PURANATTUKARA,
THRISSUR.
BY ADV. SRI.P.C.SASIDHARAN.
RESPONDENTS:
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1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES, THRISSUR-680 003.
2. THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES, OFFICE OF THE ASSITANT REGISTRAR
OF CO-OPERATIVE SOCIETIES, THRISSUR-680 003.
3. MOHANAN. JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES, THRISSUR-680 003.
4. T.V.RAJEEN,
ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,
THRISSUR-680 003.
W.P.(C). NO.28258/2011-F:
5. RAJENDRAN M.V,
MANAKULAM PARAMBIL, P.O, PUZHAKKAL,
THRISSUR-680 553.
*ADDL. R.6. IMPLEADED:
6. K.S. MOHANAN,
S/O. SANKARAN,
KOTTEPARAMBIL HOUSE,
P.O. CHITTILAPPALLY, THRISSUR - 680 551.
*IS IMPLEADED AS PER ORDER DT. 08/03/2012 IN I.A. 1147/2012.
R1 & R2 BY GOVT. PLEADER SMT. MADHUBEN,
R4 BY ADV. SRI.GEORGE POONTHOTTAM,
R5 BY ADV. SMT.I.SHEELA DEVI,
ADDL.R6. BY ADV. SRI.K.G.ANIL BABU.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08-11-2012, THE COURT ON 03/12/2012 DELIVERED
THE FOLLOWING:
Prv.
W.P.(C). NO.28258/2011-F:
APPENDIX
PETITIONERS' EXHIBITS:
EXT.P1: TRUE COPY OF THE REPORT
EXT.P2: TRUE COPY OF THE COMMUNICATION ISSUED IN THIS REGARD
DTD. 29/09/2009.
EXT.P3: TRUE COPY OF THE ORDER DTD. 04/03/2010.
EXT.P4: TRUE COPY OF THE COMMUNICATION DTD. 16/10/2011.
EXT.P5: TRUE COPY OF POSTAL COVER.
EXT.P6: TRUE COPY OF THE REPORT PREPARED BY THE 4TH RESPONDENT.
EXT.P7: TRUE COPY OF THE COMMUNICATION ISSUED IN THIS REGARD
DTD.20/10/2011.
EXT.P8: TRUE COPY OF THE NEWS ITEMS APPEARED IN THE MATHRUBHUMI
DAILY.
EXT.P9: TRUE COPY OF HTE NEWS ITEM APPEARED IN THE MALAYALA
MANORAMA DAILY.
EXT.P10: TRUE COPY OF THE NEWS ITEM APPEARED IN THE VEEKSHANAM DAILY.
EXT.P11: TRUE COPY OF PHOTO.
EXT.P12: TRUE COPY OF THE COMPLAINT SO PREFERRED DTD. 22/10/2011.
EXT.P13: TRUE COPY OF THE ORDER ISSUED BY THE JOINT REGISTRAR IN
CR.P.NO.6845/2011 DT. 22/10/11.
EXT.P14: TRUE COPY OF THE NOTICE ISSUED TO THE RICE MILLS OWNERS.
EXTT.P14(A): TRUE COPY OF THE NOTICE ISSUED TO THE RICE MILLS OWNERS.
EXT.P.15: TRUE COPY OF THE REPRESENTATION RECEIVED FROM THE RICE MILL
OWNERS.
EXT.P.15(A): TRUE COPY OF THE REPRESENTATION RECEIVED FROM THE RICE MILL
OWNERS.
EXT.P.16: TRUE COPY OF THE UNDERTAKING FROM THE MILLS OWNERS.
W.P.(C). NO.28258/2011-F:
EXT.P.17: TRUE COPY OF COMMUNICATION OF ONE OF THE RICE MILL OWNERS
DTD. 07/11/2009.
EXT.P.18: TRUE COPY OF THE NOTIFICATION DTD. 14/12/2009.
EXT.P.19: TRUE COPY OF THE PHOTOGRAPHS EVIDENCING THE PUBLIC NOTICE.
EXT.P.20: TRUE COPY OF LIST OF NEW A CLASS MEMBERSHIP LIST.
EXT.P.21: TRUE COPY OF THE CHALAN.
EXT.P.22: TRUE COPY OF THE AGREEMENT M/S. K.K.R. AGRO MILLS PRIVATE
LIMITED.
EXT.P.23: TRUE COPY OF LETTER TO THE SOCIETY.
RESPONDENTS' EXHIBITS:
EXT.R1.A: TRUE COPY OF THE ORDER NO. CRP.6845/11 DTD. 22/10/2011.
EXT.R1.B: TRUE COPY OF THE RESOLUTION NO. 26 DTD. 17/09/2011.
EXT.R1.C: TRUE COPY OF THE RESOLUTION NO.20 DTD. 22/02/2011.
EXT.R1.D: TRUE COPY OF THE RESOLUTION NO.19 DTD. 10/02/2011.
EXT.R1.E: TRUE COPY OF THE RESOLUTION NO.21 DTD. 22/02/2011.
EXT.R1.F: TRUE COPY OF THE RESOLUTION NO.40 DTD. 09/02/2011.
EXT.R1.G: TRUE COPY OF THE RELEVANT RECORDS RELATING TO THE LOAN
ACCOUNTS OF THE PRESIDENT AND SRI. PIOUS, LEELA.K.K.
AND SINIMOL.
EXT.R1.H: TRUE COPY OF THE COMMUNICATION FROM REGISTRAR OF CO-OP.
SOCIETIES DT. 16/10/11.
EXT.R1.I: TRUE COPY OF THE MINUTES OF THE BOARD OF DIRECTORS HELD
ON 13/08/2011.
EXT.R1.J: TRUE COPY OF THE REMUNERATION STATEMENT.
EXT.R1.K: TRUE COPY OF THE AGREEMENT ENTERED IN THE YEAR 2006.
EXT.R1.L: TRUE COPY OF THE STATEMENT CONTAINING THE TRANSACTIONS OF
DIFFERENT MILLS.
EXT.R1.M: TRUE COPY OF THE REPRESENTATION.
W.P.(C). NO.28258/2011-F:
EXT.R1.N: TRUE COPY OF THE DETAILS OF THE PAYMENT SCHEDULE.
EXT.R1.O: TRUE COPY OF THE CERTIFICATE.
EXT.R1.P: TRUE COPY OF RESOLUTION ADOPTED ON 17/05/2010.
EXT.R1.Q: TRUE COPY OF RESOLUTION ADOPTED ON 20/09/2010.
EXT.R1.R: TRUE COPY OF RESOLUTION ADOPTED ON1 7/07/2010.
EXT.R1.S: TRUE COPY OF RESOLUTION DTD. ON 18/11/2009.
EXT.R4.A: TRUE COPY OF THE CHEQUES WITH THE ENDORSEMENT OF THE BANK
CONCERNED.
EXT.R6.A: TRUE COPY OF THE REPRESENTATION SUBMITTED BY R6 BEFORE THE
ADMINISTRATIOR DTD. 25/10/2011.
//TRUE COPY//
P.A. TO JUDGE
Prv.
A.M.SHAFFIQUE, J.
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W.P.(C) No. 28258 of 2011
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Dated this the 3rd December, 2012
J U D G M E N T
The writ petition is filed by a few members of the Managing Committee of Adat Farmers Service Co-operative Bank Limited, Thrissur, on behalf of the Board of Directors challenging the action of 1st respondent superseding the society under section 32(3) of the Cooperative Societies Act (hereinafter referred to as 'the Act'). The main contention urged by the petitioners is that though power is vested with the Registrar, under S. 32(3) of the Act for ousting an elected Managing Committee when section 32 (1) of the Act contemplates that before exercising an act of supersession, notice has to be issued to the Managing Committee by the Joint Registrar exercising power of the Registrar, the present action of invoking jurisdiction vested in it under section 32 (3) of the Act, is arbitrary and illegal.
2. It is further contended that proper enquiry as contemplated under sections 65 or 66 of the Act was not conducted in relation to the affairs of the Bank, without which no proceedings could be taken under section 32 of the Act. It is also W.P.(C) No. 28258 of 2011 2 the contention of the petitioners that the irregularities now noticed by the Joint Registrar in Ext.P13 order are all frivolous and with reference to matters which relates acts or deeds of the previous managing committee. The petitioner also relies upon various documents produced to indicate that the reasons stated for exercising supersession does not fall under any of the sub clauses (a) to (d) of section 32(1) of the Act and hence the proceedings are bad in law.
3. The 1st respondent had filed a counter affidavit supporting the action taken by the 1st respondent under S. 32(3) of the Act. It is the contention of the first respondent that the managing committee was involved in several acts which were contrary to the bye-laws, by which loss had been caused to the Society. The counter affidavit also narrates the specific instances of the irregularities committed by the managing committee which according to him was found out during inspection. It is contended that the society had suffered huge losses and unless the act of supersession is not exercised under section 32(3) of the Act by the first respondent, it may not be possible for the authorities to conduct a detailed investigation in this matter and to take action W.P.(C) No. 28258 of 2011 3 against the defaulters and persons in management. According to the 1st respondent during a periodical inspection it was found that the managing committee had acted in excess of their power. It is admitted that it was not a regular enquiry. Still it is contended that the supervisory power of the respondent under S. 66 (1) of the Act is wide enough to ensure the orderly conduct of the society and gather information and during the said process if it is found that necessary safeguards are required to be made in respect of the society, it is well within the powers of the respondent to invoke section 32(3) of the Act.
4. The petitioner has filed a reply affidavit taking strong objections to the factual situations mentioned in the counter affidavit and reiterating the contentions that they were not responsible for the alleged irregularities mentioned in Ext.P13. They have also produced several documents to substantiate their contentions. The 4th respondent has filed a counter affidavit inter alia supporting the stand taken by the Joint Registrar in exercise of the power under section 32(3) of the Act. The 4th respondent also contends that after the 4th respondent has assumed charge and when the cheques given by certain persons, were W.P.(C) No. 28258 of 2011 4 presented, the same were dishonoured.
5. A further reply affidavit is filed by the petitioner producing Exts.P21 and P23 to indicate that there was no necessity to present the cheques for collection as the practice was to return the cheques when the payments were made.
6. Heard the learned counsel appearing for the parties concerned. The main thrust of the argument of the learned counsel for the petitioner is that though the Registrar has power under S. 32 (3) of the Act to supersede the duly elected managing committee of the Society, the said power can be exercised, under normal circumstances only after notice to the managing committee and after hearing their explanation as provided under S. 32(1) of the Act. The right of the Registrar to supersede the managing committee without notice is only an exception to the general rule which has to be exercised with great caution and only if sufficient reasons are available to invoke such a provision. In so far as the statute itself provides that notice has to be given to the managing committee to explain the alleged irregularities noticed by them during inspection, failure to issue notice amounts to clear violation of natural justice and also negation of W.P.(C) No. 28258 of 2011 5 a right available to the managing committee under the statute. For that reason the power under section 32(3) should be exercised only under special circumstances and for reasons enumerated under clauses (a) to (d) of section 32(1).
7. On the other hand, it is argued by the Special Government pleader appearing for the official respondents that Ext. P13 order by itself would indicate the reasons why the power is exercised under S. 32(3). The defaults or irregularities pointed out by itself would indicate the nature of mismanagement committed by the managing committee and unless they are superseded with immediate effect, there is every opportunity of manipulation of the records and the society will continue to function in a manner not envisaged under the provisions of the Act and Rules framed thereunder. On the basis of the Judgment in State of Kerala vs Sudarsanan (1997(2) KLT 522) it is contended that an enquiry under section 65 or 66 is not required to take action under section 32 of the Act. Similar arguments are raised by the 4th respondent also.
8. Though several judgments are relied upon by either side I am only relying upon those judgments which are necessary to be W.P.(C) No. 28258 of 2011 6 considered in the facts of the case.
9. An attempt has been made by learned counsel for the petitioner to substantiate that the grounds narrated as irregularities in Ext.P13 are only matters which could have been explained, I do not think that it will be possible for this court to go into each of these allegations and to arrive at a finding regarding the same as the same involves disputed questions of fact which cannot be gone into by a writ court. I am only venturing to consider whether there is any arbitrariness, malafides, irregularity, jurisdictional error or illegality in Ext. P13 order.
10. Section 32 (1) of the Act is couched in very wide terms which reads as under:
"32. Supersession of Committee - (1) If the Registrar, after an inquiry by himself or through his subordinates or on a report of the financing bank, or the Vigilance and Anticorruption Bureau of the Government or the Vigilance Officer or otherwise is satisfied that the Committee of any society -
(a)persistently makes default or is negligent in the performance of the duties imposed on it by this Act or W.P.(C) No. 28258 of 2011 7 the rules or bye-laws or does anything which is prejudicial to the interests of the society; or
(b)wilfully disobeys or fails to comply with any lawful order or direction issued under this Act or the rules; or
(c) makes any payment contrary to this Act or the rules or the bye-laws or causes any loss or damage to the assets of the society by breach of trust of wilful negligence; or
(d)misappropriates or destroys or tampers with the records or causes the destruction of records to cover up any misconduct or malpractice, he may, after giving the committee an opportunity to state its objections, if any, by order in writing, remove the committee and, appoint a new committee consisting of not more than three members of the society in its place or, appoint not more than three administrators, who need not be members of the society, to manage the affairs of the society for a period not exceeding six months, as may be specified in the order, which period may, at the discretion of the Registrar, be extended from W.P.(C) No. 28258 of 2011 8 time to time, so however that the aggregate period does not exceed one year.
(2)The Registrar shall consult the financing bank and Circle Co-operative Union or State Co-operative Union as the case may be before passing an order under sub-s. (1).
(3) Notwithstanding anything contained in sub-s.(1) or sub-s.(2) it shall not be necessary to give an opportunity to the committee to state its objections and to consult the Unions and financing banks, in cases where the Registrar is of the opinion that it is not reasonably practicable to do so, subject however to the condition that in such cases the period of supersession shall generally be for six months and in case a new committee, cannot be constituted or enter upon office in accordance with the bye-laws of the society within the period of supersession the period may be extended for a further period not exceeding six months __
(a)in the case of a co-operative society only after consulting the Circle Co-operative Union concerned; and W.P.(C) No. 28258 of 2011 9
(b)in the case of an Apex Society or a Central Society only after consulting the State Co-operative Union".
Therefore under section 32(1) of the Act it is possible for the Registrar after an enquiry by himself or through his subordinates or on a report of a financing bank or the vigilance and Anti-corruption Bureau and the Government or the Vigilance officer or "otherwise is satisfied" that the committee of any society, acts in a manner prescribed by clauses (a) to (d) of sub- section (1) of S.32 of the Act, he may after giving notice to the committee for explaining the alleged defaults noticed by him in the enquiry remove the committee from the management.
11. The argument that only after conducting an enquiry under section 65 or 66 and the Rules framed thereunder, an action as contemplated under section 32(1) or (3) can be taken may not survive in view of the Division Bench pronouncement in State of Kerala vs Sudarsanan (supra) wherein it is held as under:
"The condition precedent for exercising the power under S. 32 is that the Registrar on materials placed before him should be satisfied that the grounds mentioned in S. 32 exist for supersession of the committee. It is not necessary for this W.P.(C) No. 28258 of 2011 10 purpose that the Registrar or the Assistant Registrar should exercise the powers under Ss. 63, 64, 65 and 66 of the Act. No doubt, in the present case, enquiry was made under S. 66 of the Act. Under S. 66(5) of the Act, the Registrar can direct the Society or its officers to take such action as may be specified in such order within the time that may be mentioned in such order. But, on inspection, if it is found that the committee has committed such irregularities or that there has been neglect of the orders issued by the Registrar or that huge losses have been occurred due to the negligence of the committee, it cannot be said that the Assistant Registrar, should under S. 65 of the Act, direct the society to cure the defects. If the circumstances are so serious the Assistant Registrar can report the matter to the Registrar to take suitable action individually under S. 32 of the Act".
12. However sub-section (3) enlarges the said power of the registrar to supersede the committee without notice to the committee as provided under sub-section (1) or sub-section (2) "in cases where the Registrar is of the opinion that it is not reasonably practicable to do so". Therefore the power for superseding an elected committee is available under 32(3) of the Act, without even complying with the procedure prescribed W.P.(C) No. 28258 of 2011 11 under sub-section (1) or (2), provided the Registrar is of the opinion that it is not reasonably practicable to do so, thereby meaning "it is not reasonably practicable to give an opportunity to the committee to state it objections". As rightly contended by the learned counsel for petitioner sub section (3) of section 32 of the Act is in the form of an exception to subsection (1), as sub- section (1) in clear terms directs that an order of supersession can be made only after notice to the committee, which is in accordance with principles of natural justice, that is by giving an opportunity to be heard before passing an order, whereas sub-section (3) permits the Registrar to exercise the right of supersession without notice. Therefore when the statute itself provides a deviation from the general principle of giving a right to be heard which is statutorily recognized under sub-section (1), necessarily the Registrar has to exercise the power under sub-section (3) only in circumstances wherein the giving of notice is not "reasonably practicable" .
13. What exactly is the scope of the right given to the Registrar under S.32(3) of the Act to avoid the procedure under s. 32(1) will decide the fate of this case. It is not in dispute that W.P.(C) No. 28258 of 2011 12 the power under sub section (3) of section 32 of the Act, is to be exercised only with great care and caution and not as a matter of course. It is not a power to be exercised if the Registrar is of the opinion that no notice is required. His opinion should be formed on an appreciation of facts wherein it becomes impracticable to issue such notice. What are the circumstances under which such power can be exercised is not specifically mentioned in the provisions of the Act or the Rules framed thereunder.
14. While considering the question of dispensation of notice before superseding of the Managing committee and whether the issuance of notice was not reasonably practicable it is worthwhile to make a reference to the constitution bench judgment in Union of India v. Tulsiram Patel, ((1985) 3 SCC
398) which reads as under:
"129. The next contention was that even if it is not reasonably practicable to hold an inquiry, a government servant can be placed under suspension until the situation improves and it becomes possible to hold the inquiry. This contention also cannot be accepted. Very often a situation which makes it not W.P.(C) No. 28258 of 2011 13 reasonably practicable to hold an inquiry is of the creation of the concerned government servant himself or of himself acting in concert with others or of his associates. It can even be that he himself is not a party to bringing about that situation. In all such cases neither public interest nor public good requires that salary or subsistence allowance should be continued to be paid out of the public exchequer to the concerned government servant. It should also be borne in mind that in the case of a serious situation which renders the holding of an inquiry not reasonably practicable, it would be difficult to foresee how long the situation will last and when normalcy would return or be restored. It is impossible to draw the line as to the period of time for which the suspension should continue and on the expiry of that period action should be taken under clause (b) of the second proviso. Further, the exigencies of a situation may require that prompt action should be taken and suspending the government servant cannot serve the purpose. W.P.(C) No. 28258 of 2011 14 Sometimes not taking prompt action may result in the trouble spreading and the situation worsening and at times becoming uncontrollable. Not taking prompt action may also be construed by the trouble-makers and agitators as a sign of weakness on the part of the authorities and thus encourage them to step up the tempo of their activities or agitation. It is true that when prompt action is taken in order to prevent this happening, there is an element of deterrence in it but that is an unavoidable and necessary concomitance of such an action resulting from a situation which is not of the creation of the authorities. After all, clause (b) is not meant to be applied in ordinary, normal situations but in such situations where it is not reasonably practicable to hold an inquiry.
130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold"
the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are W.P.(C) No. 28258 of 2011 15 "not reasonably practicable" and not "impracticable".
According to the Oxford English Dictionary "practicable" means "Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible". Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform : capable of being put into practice, done or accomplished:
feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner: to a fairly sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to W.P.(C) No. 28258 of 2011 16 enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual W.P.(C) No. 28258 of 2011 17 may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief W.P.(C) No. 28258 of 2011 18 Commercial Superintendent, Northern Railway, Varanasi. The Senior Commercial Officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline mostly relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant with the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the W.P.(C) No. 28258 of 2011 19 principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge of the matter.
131. It was submitted that where a delinquent government servant so terrorizes the disciplinary authority that neither that officer nor any other officer stationed at that place is willing to hold the inquiry, some senior officer can be sent from outside to hold the inquiry. This submission itself shows that in such a case the holding of an inquiry is not reasonably practicable. It would be illogical to hold that the administrative work carried out by senior officers should be paralysed because a delinquent government servant either by himself or along with or through others makes the holding of an inquiry not reasonably practicable.
132. It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated W.P.(C) No. 28258 of 2011 20 against a government servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance, after the service of a charge-sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case also the disciplinary authority would be entitled to apply clause
(b) of the second proviso because the word "inquiry"
in that clause includes part of an inquiry. It would also not be reasonably practicable to afford to the government servant an opportunity of hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it the government servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in the service rules analogous thereto, the exclusionary W.P.(C) No. 28258 of 2011 21 words of the second proviso operate in their full vigour and the government servant cannot complain that he has been dismissed, removed or reduced in rank in violation of the safeguards provided by Article 311(2).
133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.
134. .......................The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not W.P.(C) No. 28258 of 2011 22 reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances".
"138. Where a government servant is dismissed, removed or reduced in rank by applying clause (b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by clause (3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the W.P.(C) No. 28258 of 2011 23 court. The court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal. In order to decide whether the reasons are germane to clause (b), the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in W.P.(C) No. 28258 of 2011 24 the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court-room, removed in time from the situation in question. Where two views are possible, the court will decline to interfere".
Though the Supreme Court was considering the expression "not reasonably practicable" in the light of Article 311(2) of the Constitution of India, the said judgment would through light into the statutory provision in the present case also, wherein notice and enquiry is dispensed before superseding an elected body.
15. Two questions arise for consideration, one is, what is the reason stated by the concerned authority in Ext. P 13 in order to support the order that it was not reasonably practicable to issue notice and secondly, whether reason stated in Ext.P13 is enough to invoke section 32(3) of the Act.
16. Ext.P13 inter alia relates to the allegation that when a preliminary inspection was conducted by the Assistant Registrar (General) serious defaults were observed in relation to the W.P.(C) No. 28258 of 2011 25 conduct of business and the functioning of the bank. Accordingly an inspection was conducted with the help of Junior Inspector and Senior Inspectors. A report is obtained which inter alia disclosed that the society suffered loss of several crores of rupees on account of the illegal decisions taken by the present managing committee. The allegations in the report according to the first respondent are serious defaults for which action is warranted to be taken under S.32 of the Act. Therefore according to him the committee has no right to continue in management of the society and therefore he is exercising the power under S.32(3) of the Act. It is further stated that it is not practicable to issue notice under S. 32(1) of the Act which will result in the committee continuing the mistakes and the defaults and they would also manipulate the records. It is pursuance of the said satisfaction of the factual situation that he has passed the orders superseding the committee and an administrator is appointed.
17. True that Ext.P13 discloses serious allegations. As already indicated I am not going into the correctness of the said allegations. But the question is whether such serious allegations by itself are enough for superseding an elected body or is it that W.P.(C) No. 28258 of 2011 26 should there be something more for the first respondent to satisfy itself before invoking sub section (3) of section 32 of the Act. A reading of section 32(3) by itself would indicate that notice to the committee can be dispensed with only if it is not reasonably practicable to do so, thereby meaning not reasonably practicable to issue notice. The gravity of the allegations cannot be the criteria to decide whether it is not reasonably practicable to do so. It should be some factor that prevents the 1st respondent in serving the notice and hearing their objections under section 32 (1) of the Act. In Union of India v. Tulsiram Patel, ((1985) 3 SCC 398) (supra) Supreme Court found that what is requisite to find that an inquiry is not practicable is the opinion of a reasonable man taking a reasonable view of the prevailing situation. Some instances by way of illustration were also stated. Those are (i) where the government servant through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so (ii) where the government servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the W.P.(C) No. 28258 of 2011 27 disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held (iii) where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. It is also held that the reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Though these are some of the instances highlighted in the said judgment, it could be seen that subsequent judgments also considers the reasonable practicability as impossibility to conduct an enquiry either due to prevention or due to factors which are imminent on account of the particular type of issue involved in the matter.
18. It will be useful to refer to Southern Railway Officers Association v. Union of India, (2009) 9 SCC 24, in which the Supreme Court held as under:
"19. The second proviso appended to Article 311, however, makes three exceptions in regard to constitutional requirement to hold an enquiry, clause
(b) whereof provides that in a case where the W.P.(C) No. 28258 of 2011 28 disciplinary authority is satisfied that it is not reasonably practicable to hold such enquiry, subject of course to the condition that reasons therefor are to be recorded in writing. Recording of reasons, thus, provides adequate protection and safeguard to the employee concerned. It is now well settled that reasons so recorded must be cogent and sufficient. Satisfaction to be arrived at by the disciplinary authority for the aforementioned purpose cannot be arbitrary. It must be based on objectivity".
19. In Mohanachandran Nair v. Andoorkonam Service Co operative Bank Ltd (2004 (2) KLT 1062) a learned single Judge of this court held as under:
"It may be seen that under S.32(1), the Registrar has to satisfy himself as to the merits of the case whereas under S.32(3) he has also to form an opinion as to the impracticability of the procedural formality of giving an opportunity to the Committee to state its objections. In other words, the requirement of invocation of S.32(3) should be such that, apart from the gravity of the W.P.(C) No. 28258 of 2011 29 situation, the service of notice and consultation should also be impracticable. Notice is not an empty formality to be casually dispensed with. It is a notice to state objections. Therefore, only if in view of a situation of immence or emergency which cannot brook the delay due to notice and situations where it is not feasible or practicable to serve notice, the same can be dispensed with. In any case, being an extremely rare situation, the Registrar should record the reasons for the opinion on impracticability.
20. It is not in dispute that already an inspection had been conducted by the Assistant Registrar (General) and all information relating to the alleged irregularities had been obtained. Admittedly it is not an enquiry under sections 65 or 66 of the Act wherein there are sufficient opportunity for the managing committee to explain the allegations. The only reason stated in Ext.P13 is that there is an opportunity for continuation of the alleged irregulartities if the committee continues to function and that there is an opportunity for manipulation of the materials.
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21. The allegations made available in Ext. P13 does not in anywhere indicate that the committee had manipulated any records. Going by the counter affidavit filed in the case it is indicated that the officers were prevented from conducting inspection. There is no such allegation in Ext.P13. It is also stated that the administrator was prevented from entering into the head office of the bank at the instance of the superseded managing committee. This apparently is an event which happened after the order under section 32(3) which cannot be taken as a reason for dispensing with notice of hearing.
22. It might be true that an order of supersession can be passed without notice but the point involved is whether it was not reasonably practicable to issue such a notice and hearing them. The only reason stated is that there is opportunity for further irregularities being committed and manipulation of records. Going by the judgments referred above, I do not think that making a vague statement in Ext.P13 that there is chance of manipulation of records or for continuing the irregularities is not sufficient enough to show that it is not reasonably practicable to issue notice and hearing them.
W.P.(C) No. 28258 of 2011 31
23. What is relevant is whether it is practically not possible to issue notice and give an opportunity to explain. It is not the gravity of allegations or irregularities noticed during inspection that matters, to avoid issuance of the notice. Notice contemplated under Section 32(1) can be dispensed only if it is not practical to issue notice to the managing committee and not based on the allegations in the report. Despite the fact that there are serious allegations, only in an instance where it is not practically possible to issue notice to the managing committee on account of various factors like failure of the managing committee in not accepting notice, the members of the managing committee not available to receive notice that an immediate seizure of all the books of the bank is required for verification etc. that such serious attempt can be made to supersede an elected body. The fact that the statute itself had given an opportunity in the form section 32(1) to the managing committee to explain the irregularities or the mistakes or the defaults which are brought to their notice during inspection by itself indicates that it is not the allegations in the report that matters in order to avoid a notice but the practical difficulty in issuing notice to the members of the W.P.(C) No. 28258 of 2011 32 committee.
24. It is stated that there is chance that the records to be manipulated. Already inspection was conducted and reports were prepared and therefore there is no reason for the apprehension that the records will be manipulated. That apart there is no indication in Ext.P13 regarding the nature of manipulation that could possibly be done in regard to the records maintained. In other words no details are specified in Ext.P13 to indicate that it is not reasonably practicable to issue notice.
25. Therefore notice can be dispensed with under sub- section (3) of section 32 of the Act and the committee can be superseded only if there is practical difficulty in service of notice and hearing their objections. The reasons stated in the report does not satisfy such a view.
26. Under such circumstances I am of the view that the writ petition is only to be allowed as follows .
(i) Ext.P13 is quashed.
(ii) It is declared that the supersession of the managing committee without invoking the procedure under section 32(1) is bad in law.
W.P.(C) No. 28258 of 2011 33
(iii) It is open for the first respondent to take action in accordance with S. 32(1) of the Act after complying with the prescribed procedure.
(iv) The managing committee which has been superseded shall be permitted to continue in office and discharge its functions.
A.M.SHAFFIQUE, JUDGE.
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