IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
WP(C) NO. 19979 OF 2022
PETITIONER:
JOSEPH MATHEW
AGED 62 YEARS
S/O. JOSEPH M.J., GRACE COTTAGE, CHENGALAM SOUTH P.O.,
KOTTAYAM-686022.
BY ADVS.
GEORGE POONTHOTTAM (SR.)
NISHA GEORGE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-
OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL), KOTTAYAM DISTRICT-686002.
3 THE KUMARAKOM SERVICE CO-OPERATIVE BANK LTD. NO.2298,
KUMARAKOM, KOTTAYAM DISTRICT-686563, REPRESENTED BY ITS
SECRETARY.
4 PAVANAN K.K.,
HARI NIVAS, KUMARAKOM P.O., KOTTAYAM DISTRICT-686563.
BY ADV SHYAM S
OTHER PRESENT:
ADV. PARVATHY K (GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.07.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 19979 OF 2022
2
JUDGMENT
The petitioner retired, on attaining the age of superannuation, from the services of the 3rd respondent - Co-operative Society on 31.05.2018. He says that, even though all the retiral benefits were validly granted to him, Ext.P1 order was issued by the Joint Registrar of Co-operative Societies, ordering that an amount of Rs.2,06,937/- be recovered from him, on the allegation that, when he was appointed to the post of Secretary in the year 2014, he was not test qualified and that he attained the said qualification only in the year 2016.
2. The petitioner says that, since the Joint Registrar did not have the jurisdiction to enter into such areas, he approached the Government; but which has now culminated in Ext.P3 order confirming Ext.P1, without considering any of the relevant aspects in its proper perspective. The petitioner, therefore, prays that Exts.P1 and P3 be set aside.
3. Sri.Reginald Valsalan - learned counsel for the petitioner, further submitted that, in fact, aganst Ext.P1, an appeal had been preferred, which was decided in his client's favour, but no orders issued thereon subsequently, presumably because of Ext.P3 taken in the meanwhile. The learned counsel submitted that, therefore, it is obvious that Government has also found in favour of his client, as is WP(C) NO. 19979 OF 2022 3 clear from Ext.P4 proceedings obtained by him under the Right to Information Act; and thus that Exts.P1 and P3 are without any basis.
4. In response, Smt.Parvathy K - learned Government pleader, submitted that what is recorded in Ext.P4 are not final decisions and that Ext.P3 must be construed to be the same. She submitted that, therefore, the petitioner cannot rely on Ext.P4 to challenge Ext.P3, but admitted, to a pointed question from this Court, that Government has not considered the jurisdiction of the Joint Registrar in having issued Ext.P1 at the first instance. She explained that this was because the petitioner never raised it as an objection, which then was unnecessary for the Authority to have considered.
5. Even though the files reveal that the notices issued from this Court to respondents 3 and 4 have not been returned, I am of the view that this Court will be justified in disposing of this writ petition because the directions that I propose herein will cause no prejudice to them.
6. When I evaluate and consider the afore submissions, it is indubitable that it is the specific case of the petitioner that his statutory appeal had been considered by the Government which is recorded in Ext.P4 proceedings, wherein Ext.P1 was found to be incorrect and the petitioner's claim liable to be granted. He alleges that, however, this was not put into effect solely on account of Ext.P3 WP(C) NO. 19979 OF 2022 4 order that had been issued by the Joint Secretary of the Government in the meanwhile.
7. Be that as it may, the real issue before this Court is as to the validity of Ext.P1, which is the proceedings of the Joint Registrar, Kottayam.
8. The question whether said Authority had any jurisdiction to have embarked upon an enquiry relating to the petitioner's promotion on the ground that he was not qualified at the time when he was initially engaged, is a matter which ought to have been considered by the Competent Authority before any order akin to Ext.P3 could have been issued - whether it had been raised by the petitioner or otherwise.
9. The issues of jurisdiction goes to the root of the aspect and therefore, even if it is not raised, it can be impelled at any time thereafter, it being a question of law. However, in this case, it is prime facie clear from Ext.P2 appeal of the petitioner that this aspect had been in fact specifically raised.
10. I am also persuaded to the afore opinion because, in Ext.P4 proceedings there appears to be a record of the minutes of the Appellate Authority that Ext.P1 cannot find favour in law.
11. In the afore circumstances, I am certain that the entire matter will require to be reconsidered by the Government, taking WP(C) NO. 19979 OF 2022 5 note of the contentions of the petitioner, as also the jurisdiction of the Joint Registrar in having issued Ext.P1.
Resultantly, I order this writ petition and set aside Ext.P3; with a consequential direction to the competent Authority of the Government to reconsider the matter, adverting to Ext.P4 proceedings and after affording a fresh opportunity of being heard to the petitioner, as also to respondents 3 and 4, thus culminating in an appropriate fresh order, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment.
Needless to say, since the impugned amounts have already been realized from the petitioner, decision will also be taken as to its return, if Ext.P1 is finally found to be untenable.
SD/-
DEVAN RAMACHANDRAN JUDGE rp WP(C) NO. 19979 OF 2022 6 APPENDIX OF WP(C) 19979/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER NO.C.R.P.(1)5567/17/K.DIS.
DATED 30.5.2018 PASSED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES.
Exhibit P2 TRUE COPY OF THE APPEAL NO.326 OF 2018 FILED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 24.7.2018. Exhibit P3 TRUE COPY OF THE GOVERNMENT ORDER DATED 3.1.2022 IN G.O.(RT) NO.7/2022/CO-OP PASSED BY THE 1ST RESPONDENT.
Exhibit P4 TRUE COPY OF THE PROCEEDING RECEIVED VIDE APPLICATION UNDER RTI ACT WITH COVERING LETTER NO.CO-OP-C2/49/2022-CO-OP DATED 24.2.2022.