111th Amendment To The Constitution of India -- A Step In The

Right Direction to Revamp the Co-operatives

(By R. Muralidharan, Deputy Registrar (Planning & Legal), 

Co-operative  Department, Puducherry)

The 28th December 2011 is certainly a red letter day in the annals of the co-operative movement as the Parliament passed the crucial Constitution (111th Amendment) Bill to insulate about six lakh co-operative societies from political and government interference and to strengthen the co-operative movement. The amendment will grant citizens a fundamental right to form co-operative societies and allow for voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.

The first step came in the form of the Constitution (106th Amendment) Bill, 2006 and it was referred to the Parliamentary Standing Committee on Agriculture for examination and report. The Standing Committee solicited the considered views of the State Government and Union Territories as co-operation is a State subject. After considering the views, the Constitution (111th Amendment) Bill, 2009 was introduced in the Lok Sabha by the Minister for Agriculture on 30th November 2009. The Bill was referred to the Department related Standing Committee on Agriculture (Chairperson: Shri Basudeb Acharia). The Bill was approved by the Lok Sabha and was passed by the Rajya Sabha on 28th December 2011. The 111th Amendment is certainly an improvement over the 106th Amendment Bill, as it has considered the views expressed by the States and Union Territories. The amendment is inserted as Part IX B of the Constitution (after Part IX A - The Municipalities) and to contain Articles 243 ZH to 243 ZT. Art 243 ZH contains definitions.

The object of the amendment, as set out in the objects and reasons, may be stated thus “The co-operative sector, over the years, has made significant contribution to various sectors of national economy and has achieved voluminous growth. However, it has shown weaknesses in safeguarding the interests of the members and fulfilment of objects for which these institutions were organised. There have been instances where elections have been postponed indefinitely and nominated office bearers or administrators remaining in-charge of these institutions for a long time. This reduces the accountability of the management of co-operative societies to their members. Inadequate professionalism in management in many of the co-operative institutions has led to poor services and low productivity. Co-operatives need to run on well established democratic principles and elections held on time and in a free and fair manner. Therefore, there is a need to initiate fundamental reforms to revitalize these institutions in order to ensure their contribution in the economic development of the country and to serve the interests of members and public at large and also to ensure their autonomy, democratic functioning and professional management.”

It states further “With a view to bring the necessary reforms, it is proposed to incorporate a new Part in the Constitution so as to provide for certain provisions covering the vital aspects of working of co-operative societies like democratic, autonomous and professional functioning. A new article is also proposed to be inserted in Part IV of the Constitution (Directive Principles of State Policy) for the States to endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies. The proposed new Part in the Constitution, inter alia, seeks to empower the Parliament in respect of multi-State co-operative societies and the State Legislatures in case of other co-operative societies to make appropriate law, laying down the following matters, namely: -

(a) provisions for incorporation, regulation and winding up of co-operative societies based on the principles of democratic member-control, member-economic participation and autonomous functioning;

(b) specifying the maximum number of directors of a co-operative society to be not exceeding twenty-one members;

(c) providing for a fixed term of five years from the date of election in respect of the elected members of the board and its office bearers;

(d) providing for a maximum time limit of six months during which a board of directors of co-operative society could be kept under supersession or suspension;

(e) providing for independent professional audit;

(f) providing for right of information to the members of the co-operative societies;

(g) empowering the State Governments to obtain periodic reports of activities and accounts of co-operative societies;

(h) providing for the reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on the board of every co-operative society, which have individuals as members from such categories;

(i) providing for offences relating to co-operative societies and penalties in respect of such offences.”

Embodiment  of  the  Amendment

A new Directive Principles of State Policy states that the “State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.”

The State legislature shall specify the number of members of the board of directors of a co-operative society. The number is limited to 21. The term of the board is for a period of five years. The term of the office bearers shall be coterminous with the term of the board. On every board of a co-operative society, one seat shall be reserved for a person who is a Scheduled Caste or Schedule Tribe and two seats shall be reserved for women. The board may fill a casual vacancy on the board by nomination from the same class of members if the term of office of the board is less than half of its original term.

The election of members to the board must be conducted before the expiry of the previous one. The superintendence, direction and control of the preparation of electoral roll and conduct of election shall vest with the authority, as provided by the State.

The State legislature shall make provisions for co-opting any person having experience in the field of banking, management, finance or specialization in a field related to a particular co-operative society as members of the board. A maximum of two people can be co-opted to the board. The number of such co-opted members, not exceeding two, shall be in addition to 21, specified above. The co-opted member would not have the right to vote in any election of the co-operative society or be eligible for election as Chairman, President, Vice-Chairman or Vice-President.

The board of a co-operative society can be superseded in case of (a) persistent default; (b) negligence in the performance of its duties; (c) commission of any act prejudicial to the interest of the co-operative society or its members; (d) there is a stalemate in the constitution or function of the board; or (e) the general body has failed to conduct the elections as per the required procedure.

A board cannot be superseded or suspended for more than six months. However, a society carrying on banking business may be superseded or kept under suspension for a maximum period of one year.  In case a board has been superseded, the administrator appointed to manage the affairs of such a co-operative society shall arrange for conducting elections within the specified time period. The board of a co-operative society which does not have any shareholding or guarantee or loan or financial assistance from the government cannot be superseded.

The provisions of the Banking Regulations Act, 1949 will be applicable to banking co-operative societies.

The State is to make provisions for maintenance of accounts and conduct of audit of co-operative societies. It shall lay down the minimum qualifications of auditors or audit firms. The auditor is the appointed by the general body of the societies from the panel approved by the State. The accounts shall be audited within six months from the close of financial year. The audit report of the apex societies shall be laid before the State Legislature.

The co-operative society shall conduct the annual general body meeting with six months from the close of the financial year. The State shall also make provisions to ensure participation of members in the management of societies, providing minimum attendance of meetings and utilizing the services of the societies. The State shall impart co-operative education and training to members. Specified reports are to be filed on the important activities of the societies within six months from the closure of the financial year.

The State Legislature may define the offences and penalties related to co-operative societies. An offence would be committed if (a) a co-operative society files a false return, (b) wilfully disobeys any summon or requisition issued under the State Act, (c) any employer who, without sufficient cause, does not pay to the co-operative society the amount deducted from an employee within a period of 14 days, (d) any officer who wilfully does not hand over custody of books, accounts or cash of a co-operative society to an authorized person, and (e) any person who adopts corrupt practices before, during or after the election of board members or office bearers.

Any provision inconsistent to the provisions of the 111th Amendment shall continue to be in force until amended or repealed by the State Legislature or until expiration of one year from such commencement, whichever is less.

States  to  Act

To achieve the objectives of the amendment the ball shall be kept rolling by the State Legislature and a duty is cast on the following dimensions.

•  Make provisions for incorporation, regulation and winding of co-operative societies.

•  Provide reservation of one seat for SC/ST and two seats for the women in the board.

•  Co-option of experts in the board.

•  Make laws for superintendence, control and conduct of election on the authority.

•  To lay down the conditions of service of the administrator.

•  Make provisions on maintenance of accounts by co-operative societies, lay down minimum
   qualifications 
   of the auditors/audit firms and prepare panel of auditors/audit firms.

•  To provide access to every member to the books, information and accounts of societies.

•  To ensure participation of members in the management of the societies, minimum attendance in the 
    meeting and utilization of minimum level of services of the societies by the members.

•  Impart co-operative education and training to members.

•  Make provisions for offences and penalties.

•  Make law in consistent with the provisions of the 111th Amendment in a time bound manner.

The new Goods and Service Tax (GST) Law

(By Dale P. Kurian, Advocate, High Court of Kerala, Ernakulam) 

The proposed Goods and Service Tax (GST) is to replace several taxation streams under Direct and Indirect taxation regimes. To name a few - Central Excise duties, Service tax, Countervailing Duty under the Customs Act, Value Added Tax, Central Sales tax, Luxury tax, Entertainment tax and Entry tax. The new enactment takes care of all by way of tax levies on sale of goods and rendition of services.

1. Introduction

Tax base of Goods and Service Tax (GST) would be very wide and would comprehensively extend over all goods and services up to the point of the end consumer. The Goods and Service Tax is to have two components:

1) Central Goods and Service tax (CGST) -levied by the Centre; and

2) State Goods and Service tax (SGST) -levied by the States.

The basic features of law, e.g., chargeability, definition of taxable event, taxable person (assessee), exigible transaction (incidence of levy), basis of classification etc., would be alike for both CGST and the SGST. In other words, the basis of levy of tax would be the same for both the CGST and the SGST, thereby wiping out all the disputes currently taken up by Value Added Tax authorities and Service Tax authorities, to tax a single transaction.

2. GST Legislation

After carefully reading the Finance Minister Mr. Pranab Mukherjee’s Budget speech of 2009-2010 and first discussion paper of the Empowered Committee, one can perceive that there would be one enactment for levy of central tax, i.e., CGST, and one enactment for levy of state tax i.e., SGST for each State. Therefore, there would be multiple tax statutes in India for levy of one GST. This could again bring in the same complications to the GST tax structure that had existed in the Value Added Tax (VAT) structure.

3. Taxes That Would Be Foregone

The GST would replace all the major indirect taxes that presently rule in India. Central Taxes that would be subsumed under the GST are :

a) Central Excise Duty - Levied under Excise Act, 1944;

b) Central Sales Tax (CST) - Levied under Central Sales Tax Act, 1956;

c)  Additional Excise Duties - Levied under the Excise Act, 1944;

d)  Excise Duty levied under the Medicinal and Toiletries Preparation Act - Levied under  Medicinal and Toiletries Preparation Act, 1944;

e)  Service Tax - Levied under Chapter V of Finance Act, 1944; (i.e., Service Tax Law)

f)   Additional Customs Duty Commonly known as Counterveiling Duty - Levied under  Customs Act, 1962;

g)  Special Additional Duty of Customs - 4 per cent - Levied under Customs Act, 1962;

h)  Surcharge - Levied under on any of above taxes or any other surcharges; and

i)  Cess - Levied upon any of above taxes or on surcharges.

Following State taxes and levies would go submerged:

a)  Value Added Tax (VAT)

b)  Entertainment tax levied by the local bodies

c)  Luxury tax 

d)  Taxes on lottery, betting and gambling

e)  State Cesses and Surcharges, in so far as they relate to supply of goods and services -  Levied over and upon any of above taxes or any other cesses and surcharges; and

f)  Entry tax not in lieu of Octroi - Levied by any State in India.

All the taxes listed above would be consolidated under the new GST regime, thereby, reducing compliance costs of taxpayers and administrative overheads of the Government. However, there are few other indirect taxes that may or may not get subsumed under the GST regime as there is no consensus among State themselves or between the Centre and States, like -

1) Purchase Tax: States themselves are of the opinion that purchase tax should be subsumed within the GST framework and no exception should be given to any State to continue the levy of purchase tax. However, few States are getting substantial revenue from the purchase tax and, therefore, they are of the view that it should not be subsumed under the GST. There is intra-State dispute on this issue. Even the Centre is of the opinion that purchase tax is to be subsumed under GST regime.

2) Stamp Duty: It is recommended that the stamp duty would be phased out over a period of 3 years. Initially, rate of stamp duty in all States should be restricted to 4 per cent. In year 2, stamp duty is to be reduced to 2 per cent and, finally, in the year 3, stamp duty should be completely wiped out and subsumed under the GST regime.

3) Vehicle Tax: The Empowered Committee of the State Finance Ministers is silent on the issue of inclusion or exclusion of the vehicle taxes levied by the State. However, the tax on vehicles levied by the State Governments could be subsumed in the GST as recommended in the report of Thirteenth Finance Commission.

4) Electricity Duty: The Empowered Committee is silent over the issue of inclusion or exclusion of the electricity duty. However, electricity duty levied by the State Governments could be subsumed in the GST as recommended in the report of Thirteenth Finance Commission.

4. Tax  Rates

Until now, there has been no official announcement regarding the GST rate for India. There are disputes among the State and Centre regarding fixation of the GST rate.

Proposed rates of GST in various reports and new items

In the current scenario, there is hardly any indication towards the proposed tax rates; however, the GST can be expected to be around 16 per cent to 18 per cent.

5. Levy

The GST would be levied on the value of goods and services transacted. Valuation provision would be common for both the CGST as well as the SGST. There is no specific information on this issue in any of the reports except that provisions would be simpler and more transparent. 

6. Inter-State  Transactions

The Centre would levy Inter-State Goods and Service Tax (IGST), which would be the CGST plus the SGST on all inter-State transactions of taxable goods and services. The inter-State sellers will pay the IGST on value addition after adjusting available credit of the IGST, the CGST, and the SGST on their purchases.

Illustration:

Mr. A manufactures goods. He bought goods for Rs. 56,000 and incurred expenses of 

Rs. 74,000. These manufactured goods were sold inter-state at Rs. 1,45,000 plus applicable GST. Rate of SGST and CGST is 7 per cent and 5 per cent respectively. Compute GST payable:

Solution:

* IGST (12%) = Cost (5%)+SGST(7%)

7.  Tax  Credit

Credit would be admissible in respect of both the components of the GST, i.e., the CGST and the SGST. The CGST and the SGST are to be treated separately for the purpose of tax credit. The scheme of tax credit would be:

a) Taxes paid against the CGST shall be allowed to be taken as input tax credit for the SGST and could be utilize only against the payment of the CGST.

b) Taxes paid against the SGST shall be allowed to be taken as input tax credit for the SGST and could be utilized only against the payment of the SGST.

Cross utilization of input tax credit between the CGST and the SGST would not be allowed except under the IGST model.

Thus, the tax base of Goods and Service tax (GST) would be very wide and would comprehensively extend over all goods and services up to the end user level, saving time and money for both the parties - the tax payer as well as the state through lesser compliance time and lower compliance costs.

The Kerala Police Act - 2011 Who will Police the Police?

(P. Rajan, Advocate, Thalassery)

The Kerala Police Act -2011 came into force with effect from 03-01-2011 in the State after repealing the earlier Act of 1960. The New Act is necessitated as per the direction of the Supreme Court, reasonings rendered by the National Human Rights Commission, besides the recommendations of the Bureau of the Police Research and Development, to promulgate a model Police Act. The old Act of 1960 was an abridged one compared to the present Act, but the reason for concern is that the new Act taken shape after much deliberations and missives is effective, and sufficient to achieve the intended aim, in the hands of the law enforcing agency.

The new Act empowers the Police to act with more powers regarding minor and major offences when committed in their presence. Under the repealed Act, the application of Ss. 47 and 51 was rampant, relating to trespass willfully done in public places; the other of riotous or indecent behavior from similar places. Police were resorting to these provisions with or without considering the legal requirements needed to invoke these provisions. The present Act also has got many provisions to maintain law and order. Similar to the provision envisaged in the Abkari Act, S.15(c), identical provision is incorporated in the Police Act regarding rioting after intoxication. Other violations of law and order from public places are detailed in Ss.118,119 and 120; also speak of the Police power to detect and charge sheet certain offenders, for acts done mainly from public places.

The definition given to complaint in the present Act also is novel, apart from written or oral, even gestures and signals constitute complaints. Police are empowered to enter into private places but shall be accounted, considering the custom and privacy. Information providers are eligible for reward as shown in the section mentioning about duties and responsibilities of police officers. Criminal justice miscellaneous expense fund is to be maintained, in order to meet expenses incurred during investigation by the Police.

There are several circulars also for efficient and better policing. Weekly station work review, custodial facility, method of investigation of matters received under S.156(3) Cr.P.C. from the Magistrate Court are specifically stipulated also. Police Act with new penal provisions permits police to take action, with regard to many offences earlier being taken under other penal statutes. Careful observance to avoid harassment to the public; wrath of legal forums by ignorance or feigned ignorance, of the prosecuting side; should not be lost sight of.

Even a cursory look at the Act would reveal that if proper application of the Act by trained hands with strict adherence to the sections is done, the Kerala Police Act will prove to be worth the wait. Routine awareness camps by senior officers, their supervisory steps, will to a larger extent, help the local level police force to improve the law and order situation. In the old Act legal action against police excesses was permissible u/S.64(3) and even limitation period was relaxed by the apex court ruling, which is not incorporated in the present Act to check frivolous legal actions.

The Act of 2011 is comprehensive in content, formulated for easy application. Instead of resorting to other laws with procedural formalities, police are bestowed with ample powers under this Act to address situations relating to law and order primarly. The purpose of the new police Act is to ensure rule of law with due transparency by professional skill of dedicated police force. Let the police itself police the administration to make it enlightened and efficient, to prove it to be second to none.

Epithet- Senior Adv. Sri. T.P.K. Nambiar’s revelation of putting the cap of his ‘blue pencil’ on it forever has saddened many (2011(1) KLT Page 1). Nearly six decades of ardent association of Mr. Nambiar with the profession has made him to say things not soothing always but not harsh either. Degradation he witnessed at ‘higher’ and ‘lower’ levels is not irredeemable, one can hope. His prose, must have ruffled many a feather but they should be light hearted enough to take criticism in their stride and forget not; the famous quote -

‘I may not agree with what you say, but I will defend to the last, your right to say it’ - Voltaire.

A Digest of Cases 2011

(By R. Muralidharan, Deputy Registrar (Planning & Legal), 

Co-operative Department, Puducherry, 605 009)   

When compared to yester years, 2011 is rather a lean year for co-operative law in Kerala. Very few cases were reported in Kerala Law Times. But one cannot lose sight of implications of such decisions. These decisions are grouped chapter-wise, to facilitate easy reading and appreciate its importance.

The question before the Division Bench in Wayanad District Wholesale Consumers Co-operative Stores Ltd., v. Thomas (2011 (1) KLT SN 68 (C. No.91) is whether a milk society would fall within the classification of consumer society. The milk societies squarely fall under producer societies wherein Kerala Co-operative Milk Marketing Federation is specifically covered. If the bye laws of the appellant society are read with reference to classification of societies, the respondent societies are not consumer societies nor do they have a consumer wing. Respondent societies are essentially engaged in marketing of the products of their members, who are dairy farmers or farmers of agricultural produce which are marketing by them in bulk. These activities cannot be understood as dealing in consumer articles, which is a necessary condition for eligibility for membership in appellant society. In order to qualify for membership both in the appellant society and for representation in the board of the appellant society, the society concerned must be dealing in consumer articles, whether as a main business or as a subsidiary business by retaining a consumer wing, which is nothing but a sales outlet for the consumers to purchase articles. 

Disputes

Petitioner co-operative society offered loan to the first respondent. It defaulted in repayment and hence suit was filed. The respondent agreed to settle the claim by referring the matter for arbitration. Hence Arbitration Reference (A.R.) was filed before High Court and respondent agreed to repay the loan in instalments and A.R. was disposed. However no payments were made by the respondent and suit was proceeded with.  In the suit, petitioner moved an I.A. to refer the matter for arbitration. Dismissing the Writ Petition, the Court in Oiko Credit Ecumenical Development Co-operative Society v. Nirmalgram Vanitha Central Society (2011 (2) KLT 942) held that the Court cannot compel the parties to go in for arbitration or such other modes of settlement of disputes on an unwilling party. The opening sentence of S.89 CPC abundantly makes clear that there should exist elements of a settlement which may be acceptable to parties and it is feels so, then it may be referred as envisaged by the provision.

Election

(i) The returning officer cannot refuse to receive the nomination paper on the ground that it was submitted beyond the stipulated time. It can be rejected only during scrutiny of nomination papers. The words employed under R.35(3)(c)(iii) are ‘not delivered or received’ and did not authorize the returning officer to refuse to receive a nomination paper. That apart, the returning officer is empowered only to ‘reject’ and not to ‘refuse’ to receive the nomination papers. The question of rejection of nomination papers would arise only after its acceptance. After acceptance of nomination paper, it would be well within the power of the returning officer, on the appointed date to accept or reject nomination papers taking note of his certification with respect to the date and hour at which nomination paper was received, vide Nalinam v. Joint Registrar (2011 (2) KLT 991). It was also held that if rejection of nomination is patently bad, wrong, arbitrary and perverse, the High Court can interfere under Art. 226, without relegating the party to the alternative remedy under S. 69.

(ii) The earlier election was set aside and the Court ordered re-poll. Before re-poll, the Act was amended. Any election notified after amendment of statute should be consistent with the amended provisions of the Act, as held in Gopalakrishnan v. State of Kerala (2011 (3) KLT SN 51 (C.No.48).

Inquiry & Investigation

The question for consideration in Prakash v. State of Kerala (2011 (2) KLT 953) is whether in view of S.68A is it within the power of the Special Judge to direct the V&ACB to conduct an enquiry/investigation and the V&ACB to enquire/investigate into matters relating to co-operative societies. S. 68A provided for appointment of an officer not below the rank of the Deputy Inspector General of Police as Vigilance Officer to conduct enquiry/ investigation into cases of misappropriation, corruption and other major irregularities in the society as may be referred to him by the Registrar and submit a report to the Registrar.   The investigation under Chapter XII of the Criminal Procedure Code, 1973, is to culminate in a final report to the submitted before the appropriate Court as provided under S.173(2) of the said Code. If such report discloses commission of an offence, the appropriate Court is to proceed against the offender as provided in the Code. The report of the enquiry/investigation as per S.68A is not for the purpose of putting the offender on trial. It could be for the purpose of a departmental enquiry or other action as provided by the Act.

Exemption  to  Societies

Government is vested with wide discretional power in the matter of grant of exemption. S.12 deals with contingencies where the Registrar, if satisfied, proposes to alter the area of operation of a society for the purpose of improving the services rendered by it. S.101 operates in a totally different contingency or situation. It deals with power of the Government to grant exemption in public interest. The impugned order of the Government issued under S.101 was to obviate the legal impediment, if any, that may ensure under S. 7(1)(c) if a new society is allowed to be established in the area where the appellant is now operating. The Division Bench in Nachimuthu v. State of Kerala (2011 (1) KLT 651) held that the Government is vested with discretional power in the matter of grant of exemption and is vested with powers to relax occasional rigour of provisions of the Act and to advance its object in public interest. Both the sections (Ss.12 and 101) operate in totally different contingency and situation.

Applicability  of  Consumer  Protection  Act

On the allegation that there was deficiency of service on the part of the co-operative society, the second respondent filed a complaint before the Consumer Disputes Redressal Forum. Overruling the contention of the society that the proceedings would be barred in view of S. 69 of the Act, the first respondent held that the proceedings would be maintainable. On appeal in Enathu Service Co-operative Bank Ltd., v. Consumer Disputes Redressal Forum (2011 (1) KLT 573), the Court held that the remedies provided under Consumer Protection Act are not in derogation of those provided under other laws and that the said Act supplements and not supplants the jurisdiction of the civil courts or other statutory authorities. Going by cl.(e) of S. 2 of the Consumer Protection Act, ‘consumer dispute’ means a dispute where the persons against whom a complaint has been made, denies or disputes the allegations contained in the complaint; and the definition of ‘person’ in col. (m) of S. 2 includes in sub-cl. (iii) a co-operative society. This, by itself is abundant to hold that a co-operative society is a person that could be subjected to an action before a Consumer Disputes Redressal  Forum by raising a consumer dispute against such person. To creep up this decision, the Court relied on a judgment of the Apex Court in State of Karnataka v. Viswabharathi House Building Society (2003 (1) KLT SN 100 (C.No.133) SC = (2003) 2 SCC 412).

Employees of Societies

(i)  In Philomina Dominic v. Kerala State Co-operative Housing Federation (2011 (1) KLT SN 27 (C. No.34) it was held that under R. 198, when the appointing authority is the board, the order of suspension cannot be passed by the Managing Director. An order of suspension is primarily an administrative order, but it cannot be passed without proper application of mind.

(ii) The amendment made to clause 21, vide G.O. dated 4.1.2008, to the Co-operative Societies Pension Scheme, 1994 adding the word “or” before the words “on attaining age of 50 years” is curative in nature for rectifying an omission, even though the word “substituted” finds a place. It is not a case where earlier provision was repealed and new provision was added by substitution. Hence amendment is only clarificatory and curative one and provision will relate back to time when prior provision was introduced, vide Velayudhan v. State Co-operative Employees Pension Board (2011 (1) KLT 399).

(iii) Whether an employee of a member society should continuously be employed in such society until appointment in apex/central society for purpose of claiming reservation in quota reserved thereunder was the question decided by the Division Bench in Shibi v. State of Kerala (2011 (1) KLT 873). Affirming the decision reported in 2010 (3) KLT 662, it was held that since the post in the apex/central society is reserved for employees of member societies, necessarily the status of the applicant as an employee of the member society is the requirement not only to apply for the post for such employment but such employment should continue until that person gets appointment in the apex/central society. Those who leave the service of the member societies during selection process, will cease to be employees of member society and consequently the same make them ineligible for application in the quota. Continuous employment during the whole selection process is the requirement to qualify the appointment under the quota reserved for employees of member societies in the apex/central society.

(iv) Since the power has been granted to the Government to frame rules and regulations regarding service conditions by S.83 of the Act, the Government has the necessary powers to frame rules permitting transfer of employees. Transfer is not a mode of appointment but only a mode of regulating the posting of employees. When inter -bank transfers are permitted, it cannot be said that such transfers amount to appointment that is not permissible, vide Mohandas v. State of Kerala (2011 (2) KLT SN 40 (C. No. 54)).

(v) The power of relaxation under R. 185(8) has to be used to ensure justice and equity without nullifying the operation and effectiveness of the rules in the guise of relaxing their rigour. The power of relaxation vested in the society as well as the Registrar is not allowed to be misused. Power of relaxation must be exercised only in exceptional cases and such exercise must be with utmost care, circumspection and caution. The paramount concern must be the welfare of the society and not the individual employee who might benefit from the order of relaxation is the pronouncement of the Division Bench in Karthikeyan v. Registrar of Co-operative Societies (2011 (2) KLT SN 57 (C. No.75)).

(vi) The short question that arises for consideration in Purushothaman v. Kerala State Co-operative Employees Pension Board (2011 (3) KLT 250) is whether the employees of a co-operative society who joined in the Contributory Provident Fund established by the employer society long before the Kerala Co-operative Employees Self Financing Pension Scheme, 1994 was introduced, are entitled to have their service prior to the date on which they joined the Fund reckoned for the purpose of computing the length of qualifying service for the purpose of determining the pension payable to them. It was held that in accordance with the stipulations contained in clause (1)(a) of paragraph 19 of the pension scheme, the length of service which the petitioners had commencing from the date of joining the Fund also can be treated as qualifying for pension. The third proviso to the said clause applies only to those employees who were probationers at the time when the scheme was implemented, viz., on 14.3.1995. The findings of the learned single Judge were challenged. The Division Bench, in Purushothaman v. Kerala State Co-operative Employees Pension Board (2011 (4) KLT 455) dismissed the Writ Appeal.