Karnataka High Court
The Kumta Urban Co. Operative Bank Ltd vs The Joint Registrar on 23 November, 2023
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WP No. 79138 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 79138 OF 2013 (CS-RES)
BETWEEN:
THE KUMTA URBAN CO-OPERATIVE BANK LTD.,
R/BY ITS GENERAL MANAGER,
GOVIND S/O. KESHAV NAYAK, AGE: 53 YEARS,
OCC: GENERAL MANAGER (IN-CHARGE),
R/O. KUMTA-581343.
...PETITIONER
(BY SRI SURESH N. KINI, ADVOCATE)
AND:
THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETY,
OFFICE OF THE CO-OPERATIVE SOCIETY REGISTRAR,
ALI ASGAR ROAD, BANGALORE
...RESPONDENT
MOHANKUMAR
B SHELAR
(BY SMT. KIRTILATA R. PATIL, HCGP FOR RESPONDENT)
Digitally signed by
MOHANKUMAR B
SHELAR
Date: 2023.12.16
13:42:51 +0530 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI OR DIRECTION OR ORDER
QUASHING THE IMPUGNED ORDER PASSED BY THE RESPONDENT
DATED 27.04.2013 PRODUCED HEREWITH AND MARKED AS
ANNEXURE-D.
THIS PETITION, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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WP No. 79138 of 2013
ORDER
The petitioner is an Urban Co-operative Bank. This writ
petition is directed against the order dated 27.04.2013 passed
by the respondent. In terms of the impugned order, the
respondent has ordered an enquiry under Section 34 of the
Karnataka Co-operative Societies Act, 1959 (for short, 'the Act,
1959') and directed the Assistant Registrar of Co-operative
Societies to submit a report within sixty days from the date of
the order. This order is called in question on the premise that
pursuant to the earlier direction issued by the respondent, an
enquiry was conducted by the Assistant Registrar of Co-
operative Societies and a report was submitted to the
respondent. The respondent vide his order dated 27.07.2012
has accepted the report and directed the petitioner/Bank to
comply the deficiencies noticed in the said report.
2. Learned counsel for the petitioner-Bank would submit
that the enquiry was held in respect of five charges and a
report was also submitted by the Assistant Registrar of Co-
operative Societies after holding the enquiry and in the report
dated 28.05.2012, the Assistant Registrar has given a finding
that except charge No.4, all other charges are not proved. The
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Charge No.4 is relating to misappropriation of an amount of
Rs.28,177/- by the former Manager of the petitioner-Bank. The
petitioner-Bank has not chosen to question the said report and
accepted and submitted the compliance report dated
11.09.2012. This compliance report is pursuant to the order
dated 27.07.2012 passed by the respondent.
3. There is no dispute that the deficiencies pointed out in
the report of enquiry under Section 64 of the Act, 1959 dated
28.05.2012 is complied. The respondent after receipt of the
report by the petitioner-Bank has passed the impugned order
once again directing the Assistant Registrar of Co-operative
Societies to hold enquiry in respect of some charges on which
enquiry was ordered on earlier occasion.
4. Learned counsel for the petitioner would submit that
once the enquiry report was accepted by the respondent, he
has no jurisdiction to review his own order accepting the
enquiry report, and to pass one more order in respect of the
same points referred to in the same matter.
5. Learned AGA appearing for the respondent would
submit that under Section 64 of the Act, 1959, enquiry is only a
fact finding enquiry. Merely because once the enquiry is
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concluded, the authorities are not precluded from holding one
more enquiry in respect of same matter for which the enquiry
was ordered earlier. Learned AGA would also submit that the
principle of res judicata would not apply to the proceedings
under Section 64 of the Act, 1959. In support of her
contention, the reliance is placed on the Judgments of Hon'ble
Apex Court in the case of Smt. G. Bharthi and Another vs. The
Assistant Registrar of Co-Operative Society and Another,
reported in ILR 2005 KAR 1502 and in the case of Ramu Dada
Panade vs. State of Karnataka and others, reported in (1989)
1 Kant LJ 143.
6. This Court has perused the aforementioned Judgments
and also contentions raised at the bar and perused the records.
7. From the records, it is apparent that there was an
order to hold enquiry under Section 64 of the Act, 1959 to
enquire into certain matters referred to in the said order. The
enquiry was held. Out of the five matters referred to in the said
order directing enquiry, the authority holding enquiry has given
a finding that four allegations are not established. As far as
Charge No.4 is concerned, the Enquiry Officer has given a
finding that Rs.28,177/- is misappropriated by the Manager of
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the petitioner-Bank and a report was submitted to the
respondent. The respondent accepted the report and directed
compliance, the petitioner-Bank complied the order by
recovering the said amount of Rs.28,177/- from the Manager of
the petitioner-Bank. This compliance was reported to the
respondent. The respondent instead of accepting the
compliance report or verifying as to whether there is
compliance of the earlier order under Section 64 of the Act,
1959, has passed another order to hold fresh enquiry in respect
of the same matter for which enquiry was already held.
8. As can be noticed from the said order, the respondent
directed fresh enquiry in respect of same matter for which the
enquiry was already held and report was accepted. In other
words, the Assistant Registrar of Co-operative Societies has
reviewed his own order. It is a settled principle of law that the
power of review is to be conferred by statute.
9. Learned AGA has not pointed out any provisions of the
Act, 1959, which enables the authority under the Act, 1959 to
review his own decision. This being the position, this Court is
unable to accept that the Assistant Registrar had the power to
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review his own order. This Court has also perused the
Judgments cited by the learned AGA.
10. In the case of Smt.G. Bharthi's (supra), this Court
has decided the question whether the person against whom the
enquiry under Section 64 of the Act, 1959 is ordered, can be
permitted to represent him by a legal practitioner. In this
context, the Court has held that it is a fact finding enquiry and
the legal practitioner's presence is not required and person
cannot be permitted to engage the legal practitioner. This
Judgment does not assist the respondent as this is not the
question involved in this case.
11. As far as the judgment in Ramu Dada's case supra, it
is to be noticed that Section 30 proceeding was initiated under
the Act, 1959, the action was challenged by filing a writ
petition. During pendency of the said writ petition, the order
initiating proceedings under Section 30 was withdrawn and
later a proceeding under Section 64 was initiated. In this
context, this Court has held that principle of res judicata does
not apply to the administrative matter. As could be noticed
here that the facts are entirely different, enquiry under Section
64 of the Act, 1959 was once concluded and report was
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accepted. This being the position, unless the provision of the
Act, 1959 enables the authorities to review his own decision,
there cannot be further order to hold enquiry in respect of the
same matter which was already concluded. Hence, this Court
proceed to pass the following :
ORDER
(i) Writ petition is allowed.
(ii) The impugned order dated 27.04.2013
passed by the respondent at Annexure-D is
quashed.
Sd/-
JUDGE
CKK/ct-an
