Mansoor vs State Of Kerala
2023 Latest Caselaw 12418 Ker

Kerala High Court

Mansoor vs State Of Kerala on 22 November, 2023

Author: V Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
    WEDNESDAY, THE 22ND DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA, 1945
                        WP(C) NO. 37719 OF 2023
PETITIONERS:

     1     MANSOOR
           AGED 47 YEARS
           S/O UNEEN, AGED 47 YEARS, JUNIOR CLERK, ANAKKAYAM SERVICE
           CO-OPERATIVE BANK LTD NO. F880 ANAKKAYAM P.O., MALAPPURAM
           RESIDING AT ARAKKAL HOUSE, ANAKKAYAM P.O., MALAPPURAM,
           PIN - 676509.

     2     JAFFAR
           AGED 43 YEARS
           S/O MUHAMMEDALI, JUNIOR CLERK, ANAKKAYAM SERVICE
           CO-OPERATIVE BANK LTD NO. F880 ANAKKAYAM P.O., MALAPPURAM
           RESIDING AT PALLIKKADAN HOUSE, ANAKKAYAM P.O., MALAPPURAM,
           PIN - 676509.

           BY ADVS.
           N.ANAND
           RAJESH O.N.

RESPONDENTS:

     1     STATE OF KERALA
           DEPARTMENT OF COOPERATION, SECRETARIAT, THIRUVANANTHAPURAM
           REPRESENTED BY ITS SECRETARY, PIN - 695001.

     2     THE JOINT REGISTRAR
           CIVIL STATION MALAPUURAM, PIN - 676505.

     3     THE UNIT INSPECTOR
           MANJERI UNIT, OFFICE OF THE ASSISTANT REGISTRAR OF
           COOPERATIVE SOCIETIES MANJERI, MALAPPURAM, PIN - 676121.

     4     THE ANAKKAYAM SERVICE CO-OPERATIVE BANK LTD NO. F880
           ANAKKAYAM P.O., MALAPPURAM, PIN - 676509.

           SRI. THAJUDEEN IMAM, GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION           ON
22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 37719 OF 2023                  2




                                      JUDGMENT

The petitioners herein have approached this Court challenging

Ext.P6 order dated 21.10.2023 issued by the Government.

a) The records disclose that the petitioners herein are working as

Junior Clerk in the 4th respondent Society. Ext.P1 would disclose that an

enquiry under Section 65 was initiated against the petitioners herein. The

specific contention raised before this Court is that Ext.P1 report which is

dated 26.6.2019 prepared by the 3rd respondent, was not served on the

petitioners herein.

b) On receipt of a copy of the report, they approached the

Government and preferred Ext.P2 appeal by invoking the provisions of

Section 83(1)(j) of the Co-operative Societies Act. Reliance is placed on

Ext.P3 challan dated 21.11.2019, and it is submitted that an appeal fee of

Rs.1000/- was paid. According to the petitioner, the appeal was admitted

and registered sometime in the last week of November 2019. They state

that after about four years, without even issuing notice to the petitioners,

the appeal was dismissed by Ext.P6 order. While dismissing the appeal,

three reasons have been stated therein. The first reason is that the report

was dated 26.6.2019 and that the appeal was preferred much beyond the

period of 60 days, that is, on 20.11.2019 and therefore is time barred.

The second reason is that the petitioner ought to have remitted a sum of

Rs.2,000/- by way of fees in terms of Section 125 a(1) of the Act. The

petitioner, admittedly, had paid only a sum of Rs.1000/-. The third reason

is that the certified copy of the report has not been placed along with the

appeal.

2. The learned counsel appearing for the petitioners would refer

to Rule 125(5) of the Rules, and it is argued that on receipt of the appeal,

the Appellate Authority was required to examine the papers first and

ensure that the persons preferring the appeal or the application has the

locus standi to do so and the same has been preferred within the specified

time limit and it confirms to the provision of the Act and the Rules. He

would refer to Rule 124(6) and submit that the Appellate Authority could

have intimated the appellant and asked him to remedy the defects, if any,

or to furnish additional information as may be necessary. According to the

learned counsel, the above course was not followed, and without even

serving summons to the petitioners, Ext.P6 order was issued almost after

four years on 21.10.2023. According to the learned counsel, the manner

in which the appeal was disposed of is clearly illegal and contrary to law

and procedure.

3. In response, the learned Government Pleader would refer to

Section 83(i)(j), and it is submitted that the appeal could be preferred

against an order passed by the Registrar. What has been challenged by the

petitioner is a report under section 65 and not an order. He would further

submit that in terms of the provisions of the Act, the petitioners had to

remit a sum of Rs.2,000/- at the time of preferring the appeal. The same

was also not done. It is further submitted that as per the provisions of the

Act, the appeal had to be preferred within a period of 60 days from

20.6.2019 and there being no provision for condoning the delay, the order

passed is in order. It is further submitted that though it is contended at

the time of hearing that the copy of the report was served on the

petitioners only much later, there is no material to substantiate the same.

It is further submitted by the learned Government Pleader that in so far as

certain others against whom the enquiry under Section 65 was conducted,

a report under 68(1) was passed, which was challenged before a learned

Single Judge. It is submitted that the challenge was repelled in W.P.(C)

No.22982 of 2020. Though an appeal was preferred before the Division

Bench as W.A No.1747 of 2020, the same was also rejected. According to

the learned Government Pleader, in that view of the matter, no purpose

would be served in directing the reconsideration of the appeal by the

Government. The learned Government Pleader also submits that the

assertion that a copy of the report was not served to the petitioners is not

correct.

4. I have considered the submissions advanced and have gone

through the records. I find that in the instant case, what is under

challenge is a report dated 26.06.2019. The appeal admittedly was filed

on 20.11.2019. Rule 124 of the Rules provides for the presentation and

disposal of appeals and revisions. Sub Rule (5) and (6) are of some

relevance and the same reads as under:-

Rule 124: Presentation and disposal of appeals and revision, before other authorities.

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(5) Immediately on receipt of the appeal or application for revision the appellate or revising authority shall as soon as possible, examine the papers filed and ensure that;

(a) the person presenting the appeal or the application has the locus standi to do so.

(b) it is made within the prescribed time limit.

(c) and it conforms to all the provisions of the Act and these Rules.

(6) The appellate or revising authority may call upon the appellant or the applicant for revision to remedy the defects, if any, or furnish such additional information as may be necessary within a period of fifteen days of the receipt of the notice to do so. If the appellant or the applicant for revision fails to remedy to the defects or furnish the additional information called for, within the said period, the appeal or the revision petition may be dismissed.

5. The provision says that on receipt of the appeal or application

for revision, the appellate or revising authority shall, as soon as possible,

examine the papers filed and ensure that the person presenting the appeal

or the application has the locus standi to do so, that it is made within the

prescribed time limit and it conforms to all the provisions of the Act and

these Rules.

6. As per Rule 6, the appellate or revising authority may call

upon the appellant or the applicant for revision to remedy the defects, if

any, or furnish such additional information as may be necessary within a

period of fifteen days of the receipt of the notice to do so. If the appellant

or the applicant for revision fails to remedy to the defects or furnish the

additional information called for, within the said period, the appeal or the

revision petition may be dismissed.

7. In the instant case, Ext.P6 rejecting the appeal on certain

technical defects was issued after about four years. There is no case for

the respondents that the petitioner was called upon to cure the defects as

provided under Rule 124(6) of the KCS Rules. After having kept the appeal

under cold storage for about four years, the respondent was not justified

in dismissing the same without calling upon the petitioner to cure the

defects, if any, and without notice. The respondent could have directed the

petitioner to pay the excess court fee or bring the fact that the appeal is

time-barred to their notice within a reasonable time. The above course not

having been followed, the impugned order cannot be sustained.

This petition is allowed. Ext. P6 order is quashed. Ext. P2 appeal

shall be taken back on file, and the 1st respondent is directed to

reconsider the matter with notice to the petitioners and in accordance with

law. All contentions are left open.

This Writ Petition is disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE Sru

APPENDIX OF WP(C) 37719/2023

PETITIONERS EXHIBITS Exhibit P1 A TRUE COPY OF THE RELEVANT PORTION OF THE REPORT DATED 26.06.2019 PREPARED BY RESPONDENT NO. 3 IN NO. 02/2019/MJ.

Exhibit P2 A TRUE COPY OF THE APPEAL DATED 20.11.2019 PREFERRED BY THE PETITIONERS BEFORE RESPONDENT NO. 1.

Exhibit P3 A TRUE COPY OF THE CHALLAN DATED 21.11.2019 ISSUED BY THE ASSISTANT TREASURY OFFICER, DISTRICT TREASURY, THIRUVANANTHAPURAM.

Exhibit P4 A TRUE COPY OF THE RELEVANT PORTION OF THE REPORT SUBMITTED TO RESPONDENT NO.2 DATED 31.08.2020 IN NO. 261/2020.

Exhibit P5 A TRUE COPY OF THE REPLY DATED 08.02.2023 PREFERRED BY PETITIONER NO.1 TO RESPONDENT NO.

Exhibit P6 A TRUE COPY OF THE ORDER DATED 21.10.2023.