Kerala High Court on Co-operative Cases - A Digest of Cases in 2002

(By R. Muraleedharan, Deputy Registrar of Co-operative Societies, Mahe)

Kerala, the God's own country, is rich not only in tradition and culture, but in the field of co-operation as well. The number of path-breaking judgments delivered by the Kerala High Court over the years is the testimony as how much Kerala High Court has contributed to the co-operative law. This article is an attempt to cull out the important case laws, rendered by Kerala High Court, published in "Kerala Law Times" during the year 2002. The case laws are grouped chapter-wise to facilitate easy reference and better understanding.

Bye Laws

In the decision reported in 2002 (3) KLT 193, the Court ruled that merely based on Government circular, the Registrar cannot issue directions to the existing societies to alter their area of operation and carry out necessary amendments in the bye laws. The Court is of the view that ultimately it is for the members to decide the area of operation of the society, subject to the restrictions imposed under S.7 of the Act.

Membership

In a case reported in 2002 (2) KLT 113, the question before the Court was whether a person obtaining membership in another society while being member of similar class of society can escape action by resigning his membership in the former society at the time of initiation of action. The Court answered in negative and held that such an action is illegal, while interpreting sub-ss.(3) and (4) of S.16. The Court was not impressed by the petitioner's contention that at the time of initiation of action he has membership in only one society. Hence the disqualification relates back to the moment of membership though the cessation takes effect only from the date of removal.

Management

What is the meaning of "one-third of the total number of members of the committee" appearing in S.31(3) of the Act is decided in a decision found in 2002 (2) KLT 116. When the Director Board consisting of seven elected members, the action of the Government nominating three persons is declared invalid. Total means aggregate of more than two sums, when seven and three are added, total comes ten and one-third of it is more than three and hence nomination of three is not tenable.

For the purpose of S.33(1) tendering resignation by a member of the committee shall have the effect of terminating his membership from the committee and the resignation once tendered cannot be withdrawn. When vacancies occur by resignation of members and eventually the number of remaining members cannot constitute the quorum of the meeting of the committee, appointment of administrator is held valid, vide 2002 (2) KLT 730.

An interesting and important question came up before the Full Bench is in the absence of a specific provision in the Act, Rules and the bye laws whether the managing committee has a right to move or consider a motion of loss of confidence in the President, Vice-President or Treasurer or any other office bearer of the committee elected in accordance with R.43. After deliberating on almost all the decisions rendered by various Courts in this subject and relying on a decision of a Division Bench of Bombay High Court and a Full Bench decision of Punjab and Haryana High Court reported in AIR 1982 Bom. 216 and AIR 1991 P & H 149 respectively, the Full Bench answered in negative to the question referred to it. The Full Bench affirmed the decision reported in 1999 (3) KLT 680 and overruled the decisions in 1982 KLT 602; 1990 (1) KLT 374 and 2000 (1) KLT 319. The decision can certainly be a treatise on the subject.

When the administrator has no power to enroll new members to the society, can he remove ineligible members was answered in affirmative in a decision reported in 2002 (2) KLT 817. The Court ruled that after following the procedure prescribed under R. 16 the administrator or the administrative committee has power to remove the ineligible members.

When a member in default admits his liability and requests the society to proceed against the security, realise the dues and pay back the balance, still he is default to the society and attracts disqualification under R. 44(l)(c) is the dictum of the Court, in 2002 (3) KLT 268. Here the Court quoted with advantage the decision reported in 1981 KLT 868.

Supervision

While quashing the supersession order the Court noted that the basic principle underlying S.32 is that management of society should be by representative bodies and the exception is only their substitution by administrator. When the enquiry under S.66 is still in progress and interim report is neither complete nor comprehensive, there is no warrant to invoke S.32, vide 2002 (2) KLT 110 SN.

Election

When can the committee request for appointment of returning officer is the question that came up in 2002 (1) KLT 638. The Court is of the view that under R.35, the committee can request for appointment of returning officer for the purpose of election to a new committee only when its term is due to expire.

In a decision reported in 2002 (3) KLT 386 the Court held that the rejection of nomination papers of the candidates for the only reason of not specifying the constituency as to whether it is general or reserved is not proper. In the absence of any specification regarding a reserved constituency, a nomination which is otherwise valid in all respects has only to be treated as candidate of a general seat.

Appeal

Parties aggrieved by awards or orders passed by Registrar or his nominee under Ss. 69 or 70 of the Act should invoke the remedies under the Act and cannot invoke jurisdiction of civil court is the crux of the decision reported in 2002 (1) KLT 73 SN.

The Division Bench of the Court held in 2002 (1) KLT 857 that when a society acts in violation of orders passed by Registrar or Government under the Act, the High Court can under Art. 226 see whether the society follows those circulars and orders.

In 2002 (2) KLT 36 SN the Court ruled that under R.99(2) an agent duly authorised can be permitted to present a revision petition before the tribunal.

Whether in an appeal by an employee, can the punishment be enhanced is an interesting question that came up before a Division Bench in 2002 (3) KLT 89 V. The Court is of the view that only punishment mentioned in R.198 can be imposed. In an appeal by an employee, punishment should not be enhanced in the absence of enabling provision in the rules, even if the punishment already imposed cannot be confirmed. The Court went on to say that an employee should not be put to more disadvantage by filing an appeal. Hence the matter was remitted to appellate authority for reconsideration of the punishment.

Miscellaneous and Service

When an employee of a co-operative urban bank has misappropriated money and where the misappropriation is established, it must be treated very differently and reinstatement must be without backwages and other remuneration, vide 2002 (1) KLT 21 SN. This view is in tune with two decisions of the Apex Court reported in (2000) 10 SCC 280 and AIR 1989 SC 149.

The Government or the Joint Registrar has no power to direct the co-operative bank to suspend its employees under R. 198(6) is the decision reported in 2002 (1) KLT 880.

In a matter of disciplinary proceedings initiated against an employee, a third party is not entitled to invoke the appellate jurisdiction under R.198, vide 2002 (2) KLT 216.

In a decision reported in 2002 (3) KLT 405, the Court ruled that under Rr.186 and 187, the Public Service Commission cannot insist that experience of the incumbents who were employees of member societies should be in same cadre. The Commission is not competent to prescribe additional requirements not contemplated by the rules for selection and experience can be in any cadre in the member societies.

In Search of Advocacy*

(By T.P.Kelu Nambiar, Senior Advocate, High Court of Kerala, Ernakulam)

The topic of this address is christened by me. There is an inevitable brashness in choosing this topic, 'In Search of Advocacy'. 'Advocacy at Risk' would also be an appropriate term. This topic is boldly unusual.

I am now delivering a carefully drawn up script. It is in the direction of an "Operation Save Advocacy/Legal Profession". I am on an 'Advocacy Hunt'. Where has advocacy gone; where is advocacy hiding. Let us find out, where.

Advocacy is the life-line of the legal profession. For effective advocacy, I believe, a lawyer should be comfortable in the English language. Therefore, make a strong pitch for the study of English. Try to make your mind your dictionary in English. Lord Denning said: "To succeed in the profession of law, you must seek to cultivate command of language; words are the lawyer's tools of trade. As a pianist practises the piano, so the lawyer should practise the use of words in writing and by word of mouth". Students of law are unborn lawyers; they should be taken care of, as it is done in the case of unborn children. Therefore, try to secure a higher score in English language; and make advocacy easy. Advocacy, remember, is the dynamic aspect of law practice. And, advocacy is not a commodity available for purchase.

Both hard work and neat arguments are essential. A case has to be argued with precision, without indulging in unlimited arguments. A court-house is not the theatre of the absurd. Lord Reid said, in Rondel's case, that far more cases have been lost by going on too long than by stopping too soon. Lord Templeman considered torrents of words by advocates, oppressive. Oral marathon by loquacious lawyers goes unappreciated. Do not frontload your case with untenable contentions.

Remember, in these days some Judges order 'cut' when lawyers are performing, because they expect 'quick-fixes' in cases. Some other Judges are laid-back with immobile countenances. Some are disciplinarians with the reserve of a school-master. Sometimes, some Judges, resting on their cushion of safety in box-seat, show anger, revulsion and disgust, when hearing cases; and send sharply worded judicial missive. Some sit in suffering silence. Some Judges erase arguments by the nose, instead of chewing them. Some show hints of Hollywood. I am of the view that Judges should dot counsel's arguments in the proud pages of their judgment. They should know that a feather will turn the scale. They should realise that Judges also have their 'honourable points of ignorance', to use a learned borrowing from Shakespeare. Judges should not tie their ear to 'no tongue than their own'. The Judge is not to 'call' a lawyer like the cricket umpire calling a bowler. 'Points of weight' urged by counsel, should not be ignored.

Let me divagate to point out that a lawyer has to argue his case without servile breadth. Advocacy should not be muffled, crippled and stifled in the name of superlative importance to judicial power/independence. Judge-should not create 'no-go' zones for lawyers. I have

known a Judge who has used the maximum number of 'no-nos'. Be that as it may, a lawyer has to argue his case, without being a 'walker' in the court/profession, and resisting the 'terminator' acts of Judges. A lawyer should never give occasion to be accused of premature abandonment of his case. Advocacy is not pre-paid talk. Let the Judge know the lawyer's quality, not name.

I have memories of another day. Some old judgments are carbon copies of original advocacy. In these days, we see judgments rendered in capsules, with an eye on disposals. In those days lawyers used to care/guard their briefs like a female goose sitting over a clutch of eggs. Good lawyers are forever. They are always mindful of their language and advocacy. Today, we see advocates sans real advocacy and Judges sans original judgment. We seem to require advocacy insurance, and that, with double coverage. Advocacy seems to be looked upon as the Achilles heel of the justicing system. There is a heightened concern in the legal profession about vanishing advocacy. Nobody learns to excel. "Advocacy exemplifies the principles of freedom of expression", according to David Pannick. Pannick proceeds to say: "The Judge can only perform his function adequately if he has the assistance of counsel to present the competing arguments for each side". Famous lawyer Thomas Erskine, taking exception to judicial lateral intervention, contended that he would for ever, at all hazards, assert the dignity, independence and integrity of the Bar, without which impartial justice can have no existence.

Win or lose, advocacy succeeds. There is no use looking for a 'fast track' in justice delivery system. Chasing targets in disposals by the judiciary, does harm to real advocacy.

Junior lawyers seem to require a huge dose of self-brief. Young lawyers should not conduct themselves as 'marketing boys', or infiltrators in the profession. Law libraries are used as "De-stress Zone' only, forgetting that books are the tools of a lawyer. A lawyer studies to live, not lives to study, unlike Francis Bacon, who lived to study, and not studied to live. The importance of the library of books had been spoken of by Shakespeare, in "The Tempest" and "Titus Andronicus"; Edward Gibbon, in 'Decline and Fall of the Roman Empire'; Milton, in "Paradise Regained"; and by Lord Samuel, Martin Tupper, John Sheffield, William Cowper, Oscar Wilde and Macaulay. Therefore, a lawyer's library should contain not only Lindley, Palmer, Russell, Jarman, Kerr, Fry, Wade and Maxwell, but also Shakespeare, Galsworthy, Mathew Arnold, Hazlitte and Dr. Johnson. This aspect has to be noted especially by cub lawyers. Most of the lawyers of today seem to suffer from 'dyslexia'. The shift from print to screen has a damaging effect on reading habit.

Advocacy cannot be improved by performance-enhancing drugs. A lawyer should have a mental down-load before he argues a case. Some court-rooms look like 'riotuous inns'.

The legal profession is one that exhilarates and frustrates. Today, the legal profession seems to laugh at itself; and seems to be 'out of order'. We have to invent a better future for the profession. The search for advocacy seems to die at the starting-gate.

In good sadness, I say 'advocacy is dead'. In ardent gladness, I hail, 'long live advocacy'.

I should thank the Samatha Law Society for this opportunity. And, I thank you for your time and tolerance.

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*Special Address delivered on 28.11.2004, at Renewal Centre, Kaloor, Ernakulam on the occasion of the Sixth Annual Day Celebrations and All India Moot Court Competition of Samatha Law Society.

Advocacy Muffled, Crippled And Stifled

(By T.P. Kelu Nambiar, Senior Advocate, Ernakulam)

The forensic duty of the advocate was laid down, in memorable words, by Justice Crampton, in R v. O'Connell, thus: "This Court in which we sit is a temple of justice; and the Advocate at the Bar, as well as the Judge upon the Bench, are equally ministers in that temple. The object of all equally should be the attainment of justice...........Let us never forget our high vocation as ministers of justice and interpreters of the law..........An advocate gives to his client the benefit of his learning, his talents and his judgment."

On query from Boswell, Dr. Johnson said: "Sir, you do not know it to be good or bad (cause) till the Judge determines it. I have said that you have to state facts fairly; so that your thinking, or what you call knowing a cause to be bad, must be from reasoning, must be from your supposing your arguments to be weak and inconclusive. But, Sir, that is not enough. An argument which does not convince yourself, may convince the Judge to whom you urge it: and if it does convince him, why then, Sir, you are wrong, and he is right. It is his business to Judge; and you are not to be confident in your own opinion that a cause is bad, but to say all you can

for your client, and then hear the Judge's opinion...........Every body knows you are paid for affecting warmth for your client."

Branwell B. once pointed out: "A man's rights are to be determined by the Court, not by his attorney or counsel. It is for want of remembering this that foolish people object to lawyers that they will advocate a case against their own opinions. A client is entitled to say to his counsel, I want your advocacy, not your judgment; I prefer that of the Court."

Lord Hailsham, in his Memoirs, 'A Sparrow's Flight; wrote that Bar was always his first love, because the lawyers' profession is reciprocally adversarial profession.

Lord Justice Salmon said: Advocacy is an art.

According to David Pannick, advocates earn their living by exercising the skills of persuasion; they have to present the contentions of the parties; the court can properly perform its task of deciding the issues before it only if each party has someone to speak on his behalf to put his side of the case.

According to M.C. Chagla, (in 'Roses in December'), it is the business of counsel and solicitors to tell the Judge what the briefs contain and the Judge's job is to decide after hearing them. Chagla wrote: "I think it is a mistake for a Judge to go to court after studying the case that is coming up before him. Inevitably, one makes up one's mind one way or the other after having read the papers. I agree, the decision is tentative, and one might change it after hearing counsel. But it requires a very strong mind to change an opinion once formed.................If the Judge comes to court with an open mind, I think it would be easier, and therefore quicker, to decide one way or the other..............I believe that the administration of justice is a co-operative

effort between the Judge and the lawyer. It should not become a one-sided affair. There are Judges who think that lawyers are superfluous. They know the law. They have studied the facts, and they can decide the question on their own. But grave injustice can be caused if such an approach were followed. Judges are there to decide after hearing counsel on both sides. But, I have known Judges, incredible though it may seem, who decide first, and hear counsel afterwards................Despatch is important, but despatch at the cost of justice is a complete perversion of judicial process............Counsel is paid to argue his client's case, and not to accept what the Judge may be putting to him."

I see a tendency in recent times in certain Judges to do exactly what Chagla despised. They even go to the extent of framing questions at home, and asking lawyers to answer in court even at the start of the case, forgetting that advocacy is not a quiz programme and a Judge should not act as a quizzical quizzer. Advocacy should never be muffled, crippled and stifled, is the lesson which we learn from the various opinions gathered and stated above.

Long live advocacy.

Convincing or Confusing?

(By T.M. Rajasekharan, Advocate, Calicut)

The decisions of the Kerala High Court reported in 2004 (2) KLT 833 and 2004 (2) KLT 837 are likely to create certain confusions.

Four types of Trials are prescribed in the Code of Criminal Procedure 1973 viz: Sessions Trial, Warrant Trial, Summons Trial and Summary Trial. Different procedures are laid down for each of them. In “State of Kerala v. Shaji”, the case number before the Magistrate Court is C.C. 638 of 1996; clearly showing (Considering the relevant Section of the Penal Code Read with the S.2(w) of the Cr. P.C.) that it was taken on the file as a Summons Trial case and not a Summary Trial Case.

Had the case been tried as Summary Trial under S.260( 1) (c)(i) Cr. P.C, it should have been numbered as S.T. and not as C.C, by following the Catagorisation of Nomenclature of Cases notified by the High Court. A S.T. case can be converted into a summons case or warrant case but not vice versa. Position being this, the observation of the High Court such as “the trial was a summary one” for the reason that the accused pleaded quality, would lead to confusion. A Summons Trial case would not automatically convert itself into a Summary Trial Case, on the pleading of the accused.

The line of demarcation between the gravity of offences punishable under S.304 and 304A is very thin. In both the cases, innocent lives are put to end by the act of the accused. Only difference is that of intention. As to whether a person committing a negligent act resulting in the death of another is entitled to unregulated benevolence of a more few hours of staying in the Court Hall and paying couple of rupees as fine, is a point to be debated seriously. If the Court rises soon after the judgment is pronounced, he would not even be under this "nominal imprisonment" for more than a few minutes. Sadly, the Hon'ble Judge also appears to have forgotten to apply the provisions of S.357( l)(c) R/w S.357(3) and (4) Cr. P.C. As the sentencing policy is a matter in which several rulings of the Supreme Court of India have already appeared even recently, elaboration on this aspect is not attempted to.

In Babu v. Suresh the High Court was dealing with the requirement of impleading “firm” in a proceedings under S.142 N.I. Act. Though there cannot be any difference of opinion regarding the ultimate finding in the case, paragraph 3 of the judgment would create a misunderstanding such as the “firm” also could have been impleaded in similar cases.

Mere term “firm” or “company” does not make out anything in a criminal case, though in common parlance it may be understood as an establishment of some sort. A firm or company can be brought into the array of accused only when it is an incorporated company or body corporate including a society registered under Societies Registration Act, 1860, as defined in S.305(1) Cr. P.C. A proprietary concern is not a firm or company under the Code. Hence in the instant case the so-called “firm” could not have been prosecuted at all.

With great respect may I add that it is not sufficient that the findings of the Court happens to be correct. There should be reasoning emanating from thorough study. Way back in the 17^th Century wrote John Dry den, “But the Reader will be as apt to ask the question, Why they allowed not a longer time to make their works more perfect? And why they had so despicable an Opinion of their Judges (critics) as to thrust their indigested stuff upon them, as if they deserved no better?”

Will Sajan Abraham open a Floodgate for Acquittals?

(By Justice M.R. Hariharan Nair, Former Judge, High Court of Kerala)

Sajan Abraham (2004 (2) KLT 122 SC) provides food for serious thought and leads to the question whether compelling necessity does not exist for the Govt, to specify what exactly is the quantum of one dosage unit of the psychotropic substance which occupies the shelves of medical stores under the brand name TIDIGESIC. It would appear that until that is done Sajan Abraham would provide impunity for anyone to possess as many as 25 ampoules of the substance (nay, even upto 110 ampoules and as many as three syringes for injecting them!) if only he pleads that it was kept for own consumption and make some one like a friend or relative to give evidence that he was used to the injection. Not even a prescription from a medical practitioner is a must. To me, it appears that the decision provides a gold mine not only for the Accused involved in such cases which are presently pending investigation or trial; but also to those whose Appeals/Revisions are presently pending before one Court or another. A peculiar situation indeed!

Tidigesic is the trade name given by its manufacturer for the injectible solution with International non-proprietary name BUPRENORPHINE. Undoubtedly it is an item of psychotropic substance coming under serial number 92 of the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1989. The dangerous nature of the substance is evident from the fact that 'small quantity' thereof is limited by law (See SI. No. 169 of the relevant notification) to as low a measure as 1 gram. Possession of over 20 grams of the substance would make it 'commerical quantity' inviting, under S.22(c), minimum punishment of R.I. for 10 years and fine of one lakh rupees; which is extendable even upto R.I. for 20 years besides fine of upto 2 lakh rupees or even more. Under S.22(a) read with S.8(c) of the Act, even possession of a miniscule quantity of the substance is an offence though possession of quantity of 1 gm or less (small quantity) of the substance would attract a lesser punishment of R.I. for a term of upto 6 months or fine which may extend to ten thousand rupees or both only. These limits speak for the gravity of the offence and of the potency of BUPRENORPHINE, available in medical stores as TIDIGESIC, usually in ampoules of 2 ml or4 ml.

Going by the provisions in Section 27(b) of the Act consumption (administration through injection in this case) of even one ampoule of TIDIGESIC would attract punishment of upto six months' imprisonment and fine of Rs.10,000/-; such possession being of a small quantity only. But then an exception to this culpability would be where, as laid down in S.8(c) itself such possession or consumption is for medical or scientific purposes and in the manner and to the extent provided by the provisions of the Act, or Rules or orders made thereunder.

Rule 66 of the Narcotic Drugs and Psychotropic Substances Rules 1985 is such a provision. It stipulates that no person shall possess any psychotropic substance for any of the purposes covered by the Rules unless he is lawfully authorised to possess such substance for any of the purposes mentioned in the Rules. It further states that notwithstanding this restriction, any person who is not so authorised under the 1985 rules can also possess a reasonable quantityof such substance as may be necessary for his genuine scientific requirements or genuine medical requirements or both for such a period as is deemed necessary. The proviso to this Rule further mentions that where such substance is in possession of any individual for his personal medical use the quantity thereof shall not exceed 100 dosage units at a time. What exactly is one dosage unit of TIDIGESIC is, however, not laid down in the Act or the Rules.

The Accused in Sajan Abraham was allegedly in possession of 25 ampoules of TIDIGESIC each of two ml and had been convicted for the offence under section 21. In his appeal resulting in the said judgment it was found that he was liable to be acquitted as no offence is made out; the reason being that Rule 66 above mentioned permits one to be in possession of upto 100 dosage units at a time for personal medical use. The Court held that the admission of the investigating officer as also the evidence of the accused's mother indicated that possession of the substance might have been for his personal consumption. One of the reasons for that conclusion (possibility of genuineness as regards requirement for personal medical use) as given in the judgment is that three syringes were also recovered from the appellant. It is to be mentioned here that the recovery was made not while the accused was in his residence or from a receptacle kept there; but from his person and while he was standing on the road near a busy junction. In similar circumstances, in Basheer @N.R. Basheer Vs. State of Kerala,  2004 SCCL.COM 552 (Criminal Appeal No. 1334 of 2002) the inference drawn from the fact that the Accused therein was found with contraband on a street was that he was waiting for his customers. Possibly, a similar inference was possible in the present case also. Further, it may be mentioned here that if it was for his personal consumption why should he have kept with him three syringes too? Does it not lead to the opposite inference that he was soliciting customers as drawn in N.P. Basheer aforementioned, especially when the practice of giving a shot for a price is not only not unknown, but rampant in the field of drug trafficking? May be, two views are possible and the benefit therefrom might go to the Accused. Whatever that be, the accused was found justified in possessing the 25 ampoules and his contention that it was kept for his personal use was accepted by the Court. While doing so the Court also relied (See Para 8 of the judgment) on an earlier decision in Ouseph @ Thankaachan v. State of Kerala (Crl. Appeal 1256 of 2001 of the Apex Court) where even possession of 110 ampoules of TIDIGESIC (along with two injection syringes) was held justified under the same provision namely Rule 66. The Court had held in Ouseph's case (supra) that there was nothing to indicate that even 110 ampoules of the substance would exceed 100 dosage units.

The situation, therefore, is that even in a case where possession of over 100 ampoules of the substance and holding of more than one syringe for injection on the part of the Accused is established, it would be open to him to take the defence that it was kept for his personal consumption and he need adduce only some evidence in the form of deposition of a friend or a relative to the effect that he was in the habit of taking such injections to justify an acquittal. Throwing a suggestion in that regard to the Seizing and Investigating officers and other eye witnesses also may perhaps be required. If this is the position, will not the Police and other empowered officers be wasting their time by booking persons found on the street in possession of say a hundred Tidigesic ampoules or more, unless they can get at positive evidence to show that the item was kept not for his own consumption; but for sale or distribution? In any case, there has to be certainty on the aspect as to what quantity of the substance is a 'dosage unit'. The earlier this is done, the better.

Urgent action at the hands of the Union Government is required in the matter lest the trials in similar cases would turn out to be a wasteful exercise for all concerned, if not a mockery of the justice system itself.