Moosa Pallikkathodi Erathali vs State Of Kerala
2021 Latest Caselaw 21037 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR. JUSTICE SATHISH NINAN
      WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
                          WP(C) NO. 6854 OF 2021
PETITIONER:

              MOOSA PALLIKKATHODI ERATHALI
              AGED 46 YEARS
              S/O.MUSTHAK ALI,NATTUKAL,KALOTH,
              KONDOTTY.P.O, MALAPPURAM-673638.

              BY ADVS.
              SRI.S.SREEKUMAR (SR.)
              SRI.K.S.BAIJU
              SMT. DEVI KRIPA R.
              SMT.DHANYA BABU
              SMT.P.A.PRIYA
              SMT.NEETHU SASI
              SRI.DIPU.R



RESPONDENTS:

     1        STATE OF KERALA
              REPRESENTED BY ITS PRINCIPAL SECRETARY,
              DEPARTMENT OF CO-OPERATION,GOVERNMENT
              SECRETARIAT,THIRUVANANTHAPURAM-695001.

     2        THE REGISTRAR OF CO-OPERATIVE SOCIETIES,KERALA,
              OFFICE OF THE REGISTRAR CO-OPERATIVE
              SOCIETIES,STATUE,THIRUVANANTHAPURAM-695001.

     3        THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,(GENERAL),
              MALAPPURAM,OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE
              SOCIETIES(GENERAL),B2 BLOCK,
              CIVIL STATION,MALAPPURAM-676505.

     4        ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,
              (GENERAL)KONDOTTY,
              OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE
              SOCIETIES,(GENERAL),KONDOTTY.P.O,
              MALAPPURAM-673638.

     5        KERALA STATE CO-OPERATIVE ELECTION COMMISSION,
              REPRESENTED BY CO-OPERATIVE ELECTION COMMISSIONER,OFFICE OF
              THE KERAL STATE CO-OPERATIVE ELECTION COMMISSION,3RD FLOOR,
              CO-BANK TOWERS,VIKAS BHAVAN.P.O,
              THIRUVANANTHAPURAM-695033.
 WP(C) NO. 6854 OF 2021                  -2-


     6      THE NEDIYIRUPPU SERVICE CO-OPERATIVE BANK LTD,NO.D-1934,
            REPRESENTED BY ITS SECRETARY,KONDOTTY.P.O,
            MALAPPURAM-673638.

     7      FARSEEN ERANHIKKAL,
            S/O.SREEMAMUKOYA,MUSILAYARANGADI,
            NEDIYIRUPPU.P.O, MALAPPURAM-673638.

            BY ADVS.
            BY SMT.SHEEJA C.S., SR. GOVT. PLEADER
            SRI.P.C.MUHAMMED NOUSHIQ
            SRI.P.P.JACOB
            SHRI.ABDUL KAREEM N.
            SRI.K.M.FIROZ




     THIS   WRIT   PETITION   (CIVIL)    HAVING   COME   UP   FOR   ADMISSION   ON
20.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                         SATHISH NINAN, J.
             = = = = = = = = = = = = = = = = = =
                  W. P. (C) No.6854 of 2021
             = = = = = = = = = = = = = = = = = =
           Dated this the 20th day of October, 2021

                                J U D G M E N T

Order of disqualification of the petitioner to be a

member of the Managing Committee of the sixth respondent

society, for violation of Rule 44(1)(e) of the Co-

operative Societies Rules, is under challenge in this

writ petition.

2. Rule 44(1)(e) reads thus:-

"44. Disqualification of membership of committee.

--(1) No member of the society shall be eligible for being elected, or appointed as a member of the committee of the society under S.28 if he:-

xxxxx xxxxx xxxxx xxxxx xxxxx

(e) is employed otherwise than in an honorary capacity as legal adviser or as legal practitioner on behalf of the society or against the society which is a member of the former society."

3. As per Ext.P6 order, the Joint Registrar found

that, on the date of election, the petitioner was

employed as a legal advisor of the 6 th respondent W. P. (C) No.6854 of 2021

Society. The appeal preferred by the petitioner before

the Government resulted in dismissal as per Ext.P10

order.

4. As on the date of conduct of election, was the

petitioner working as a legal advisor of the sixth

respondent Society or not, is the short question for

determination.

5. Heard learned learned Senior Counsel

Sri.S.Sreekumar on behalf of the petitioner,

Smt.C.S.Sheeja, the learned Senior Government Pleader,

Sri.Lakshmi Narayan, for the 5 th respondent,

Sri.K.M.Firoz, P.C.Muhammed Noushiq and Sri.N.Abdul

Kareem for the 6th respondent, and Sri.P.P.Jacob, the

learned counsel for the 7th respondent.

6. As per resolution No.9 dated 22.04.2005 of the

Administrative Committee of the Society, the petitioner

was included in the panel of legal advisors of the

Society. Ext.P1 is the election notification dated

05.10.2019. As per Ext.P1 notification, the last date W. P. (C) No.6854 of 2021

for submission of nomination was 13.11.2019. According

to the petitioner, on 12.11.2019 he submitted Ext.P2 to

the Society expressing his unwillingness to continue as

a legal advisor. He won in the election and is the

President of the Society. The 7 th respondent who is a

member of the Society filed a complaint on 02.12.2019

alleging that, even as on the date of conduct of

election the petitioner was working as a legal advisor

of the Society.

7. On the complaint, the Assistant Registrar

inspected the Society and submitted a report before the

Joint Registrar. Based on the report, hearing was

conducted by the Joint Registrar on 10.01.2020. The

Joint Registrar passed Ext.P6 order holding that, even

as on the date of conduct of election, the petitioner

was the legal advisor of the Society and thus violated

Rule 44(1)(e). Though the petitioner challenged Ext.P6

order before the Government, he was unsuccessful. W. P. (C) No.6854 of 2021

8. To conclude that the petitioner was working as a

legal advisor of the Society even as on the date of

election, the authorities mainly entered into two

findings; firstly, the resignation submitted by the

petitioner was not accepted by the Managing Committee of

the Society and therefore it cannot be held that his

services had ceased; and secondly, even subsequent to

the conduct of election, legal opinions were given by

the petitioner to the Society for grant of loan.

9. Ext.P2 is the letter of resignation of the

petitioner. There has been no decision by the Committee

accepting such resignation. The learned Senior Counsel

appearing on behalf of the petitioner would contend

that, the status of the petitioner in so far as the

Society is concerned was only that of a legal advisor,

which could always be terminated by either of the

parties by a mere communication of the intention to do

so. On Ext.P2 communication having been given to the

Society expressing his unwillingness to provide his W. P. (C) No.6854 of 2021

services any further, he cannot thereafter be said to be

the legal advisor of the Society, submits the learned

counsel. The learned counsel appearing for the 7 th

respondent-complainant would on the other hand contend

that, the resignation of the petitioner is to be

accepted by the Managing Committee in terms of Rule 38

of the Co-operative Societies Rules, and till it is

accepted, the status of the petitioner as a legal

advisor, would continue. Admittedly, there is no

procedure prescribed under the Co-operative Societies

Act or Rules regarding resignation of a legal advisor.

It being in the nature of a contract for personal

professional service, it would be open for the

petitioner to express his unwillingness to render his

services when he chooses. Even if the Society decides

not to accept it, he cannot be compelled to render the

service. Therefore, there is no substance in the

contention that, unless the resignation (as it is

termed) is accepted by the Committee he continues as its W. P. (C) No.6854 of 2021

legal advisor. I am unable to subscribe to the finding

of the authorities that, since the resignation was yet

to be accepted by the Committee the petitioner continued

as the legal advisor.

10. Now, on the facts, the authorities have entered

a finding that even subsequent to the conduct of

election, the petitioner has given legal opinions to the

Bank and hence he continued as its legal advisor. They

have relied on a legal opinion dated 22.11.2019 stated

to have been given by the petitioner to one Appukuttan

for the purpose of availing a loan from the Bank. The

genuineness of the legal opinion is disputed by the

petitioner. In the reply affidavit filed by the

petitioner before this Court, it has been stated thus:-

"It is discernible that previous legal opinion given by the petitioner was misused for taking photocopy of the same after covering it legal opinion but with the name in the letter pad and signature and created Ext.R3(b). The handwriting in Ext.R3(b) is not that of the petitioner."

W. P. (C) No.6854 of 2021

11. According to the learned counsel for the

petitioner, even a copy of the alleged legal opinion was

not furnished to the petitioner by the authorities.

However, as I will immediately deal with, the

circumstances seem to point otherwise. Ext.P3 is the

notice calling upon the petitioner for hearing on the

allegation of violation of Rule 44(1)(e). On the date

fixed viz. 01.01.2020, the petitioner appeared and

submitted Ext.P4 request wherein it is stated that the

report of the Assistant Registrar and the Annexures have

not been received by him. The proceedings were

adjourned. It is thereafter that the petitioner

submitted Ext.P5 reply/objections dated 10.01.2020.

Pertinently, in Ext.P5 the petitioner does not have any

complaint that the documents were not made available to

him. Therefore, the reasonable conclusion would be that,

on the request made by the petitioner as per Ext.P4, the

relevant records were made available to him and W. P. (C) No.6854 of 2021

thereafter he has submitted Ext.P5 objections.

12. From Ext.P6 order passed by the Joint Registrar

it is evident that, the petitioner did not raise any

objections as against the genuineness of the legal

opinion dated 22.11.2019 stated to have been given to

Appukuttan by him. It does not end there; challenging

the order, the petitioner preferred appeal before the

Government. Significantly, even the memorandum of appeal

does not contain any averment or ground challenging the

legal opinion in question. A copy of the appeal

memorandum is marked as Ext.P7 in the writ petition.

There is no case in the appeal memorandum that the

petitioner has not given the legal opinion in question,

nor did he challenge the genuineness of the document.

Here it is to be remembered that, the petitioner is none

other than an Advocate by profession. If the authorities

had relied on a legal opinion which was not authored by

him, definitely that would have been a specific ground

in the appeal. It is true that, pending the appeal, on W. P. (C) No.6854 of 2021

23.11.2020, the petitioner filed an additional objection

in the appeal as Ext.P12 wherein he has stated that he

has not given any legal opinion on 22.11.2019 to

Sri.Appukuttan. However, that could only be seen as an

afterthought.

13. In the above background, the contention of the

petitioner regarding submission of letter of resignation

to the Society on 12.11.2019 is to be considered.

According to the petitioner, on 12.11.2019 he submitted

Ext.P2 to the accountant of the Society since at that

time the Secretary was not in office. The said letter

(Ext.P2) is stated to have been handed over by the

accountant to the Secretary only on 04.12.2019. Here it

is to be noticed that the 7 th respondent had filed

complaint against the petitioner on 02.12.2019. It is

immediately after the lodging of the complaint the

accountant has handed over Ext.P2 letter of resignation

to the Secretary claiming that it was received on

12.11.2019 and that by an oversight he omitted to hand W. P. (C) No.6854 of 2021

over the same to the Secretary. When such an important

document has been handed over to an Accountant, the

petitioner who knows the consequence of not submitting

the said communication would necessarily have followed

up the matter and ensured that the communication reaches

the Secretary on the same day itself or at the earliest.

The statement that, the Accountant by an oversight

omitted to hand it over to the Secretary till

04.12.2019, is hard to accept on the circumstances

noticed above.

14. Yet another important circumstance is that, in

the course of the proceedings, Sri.Unneen C.T., the

person who was holding the office as Secretary at the

relevant time, gave statement before the Joint

Registrar. The statement has two parts. In the first

part he said that the petitioner had submitted his

resignation on 12.11.2019 to the accountant to be

entrusted to the secretary and that due to an oversight

the accountant omitted to hand over the same to him and W. P. (C) No.6854 of 2021

was handed over only on 04.12.2019. He also mentioned

about the declaration submitted before him by the

accountant to the above effect. In the second part of

his statement he has categorically stated that the

petitioner had given a legal opinion dated 22.11.2019 to

one Appukuttan for the purpose of availing a loan. The

petitioner has no allegation that the said Unneen C.T.

has an axe to grind against him which prompted him to

make such a statement. That apart, the first part of the

statement is in support of the petitioner's claim to

some extent. In the circumstances, I have no reason to

disbelieve the statement of Sri.Unneen, the then

Secretary that, the petitioner had given legal opinion

to the Bank after the election.

15. On the above discussions, it could only be

concluded that the finding of the authorities that the

petitioner was continuing as a Legal Advisor of the

Society even as on the date of election is justified. W. P. (C) No.6854 of 2021

16. The learned Senior Counsel for the petitioner

raised an argument that, the legal opinion dated

22.11.2019 referred to by the authorities is a mere

photostat copy which could not have been relied upon.

Only a copy certified in terms of Rule 32 read with

Section 103 could have been accepted, submits the senior

learned counsel. The copy of a document certified under

Rule 32 is by virtue of Section 103 elevated to the

status of primary evidence. The legal opinion in

question is a document collected by the Assistant

Registrar in the course of inspection on the complaint

of the Additional 4th respondent. The secondary evidence

was admitted and relied on without any objection. It

having been admitted, its admissibility cannot be

challenged at this stage since the objection would only

amount to an objection regarding the satisfaction of the

conditions for admission of secondary evidence. Of

course, mere admission of a document is not proof of it.

Here, the content of the document as such is not of much W. P. (C) No.6854 of 2021

relevance; the only question is, did the petitioner give

legal opinion after the election. As found by me

earlier, independent of the disputed document there are

sufficient circumstances to find that the petitioner

continued as legal advisor of the Bank even after the

election, thus attracting Rule 44(1)(e). Therefore, the

said contention is of no avail to the petitioner.

No grounds are made out to interfere with the

conclusion arrived at by the authorities. The writ

petition fails and is dismissed.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge APPENDIX OF WP(C) 6854/2021

PETITIONER EXHIBITS

EXHIBIT P1 THE TRUE COPY OF THE NOTIFICATION WTH NO.O1/1470/2019/E(1),S.C.E.C,DATED 05.10.2019,ALONG WTH ORDER THEREON

EXHIBIT P2 THE TRUE COPY OF THE LETTER DATED 12.11.2019 SUBMITTED BY THE PETITIONER TO THE SECRETARY OF THE 6TH RESPONDENT

EXHIBIT P3 THE TRUE COPY OF THE NOTICE WITH NO.JRMPM/5307/2019-CRP(1), DATED 24-12-2019

EXHIBIT P4 THE TRUE COPY OF THE REQUEST DATED 01.01.2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT

EXHIBIT P5 THE TRUE COPY OF THE WRITTEN ARGUMENT NOTE DATED 10.01.2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT

EXHIBIT P6 THE TRUE COPY OF THE ORDER WITH NO.JRMPM/5307/2019/CRP(1)DATED 1.2.2020

EXHIBIT P7 THE TRUE COPY OF THE APPEAL DATED 13-02-2020 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXHIBIT P8 THE TRUE COPY OF STAY PETITION DATED 13.02.2020 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

EXHIBIT P9 THE TRUE COPY OF THE JUDGMENT IN WP(C)NO.5102/2020 DATED 02.03.202

EXHIBIT P10 THE TRUE COPY OF THE ORDER WITH NO.G.O(ORD)NO.102/2021/CORP,DATED 09.02.2021

EXHIBIT P11 THE TRUE COPY OF THE COMMUNICATION DATED 13-

11-2020 ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER AS PER RTI ACT

EXHIBIT P12 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 23-11-2020.

APPENDIX/WP(C) 6854/2021

Exhibit P13 TRUE COPY OF THE APPLICATION SUBMITTED BY UNDER RTI ACT BY ONE NOUSHAD MULLUNGAL.

Exhibit P14 TRUE COPY OF THE LETTER DATED 01/09/2021, ISSUED BY THE 6TH RESPONDENT ALONG WITH RELEVANT PAGE OF LOG BOOK OF 6TH RESPONDENT VEHICLE.

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