Compendium of Cases on Co-operatives, 2018 Expounded by the
High Court of Kerala

(By R.Muralidharan, Puducherry Civil Service Officer (Retd.).,
Director, Catalyst (The Training People)

The High Court of Kerala continues to exhibit its brilliance in interpreting the provisions of the Kerala Co-operative Societies Act and the rules made thereunder with classic decisions rendered by it. The noteworthy aspect during 2018 is that quite a few decisions of the learned single Judge were reversed by the Division Bench and the insight to the judgments is really notable. Of the 50 cases which are cataloged in this article, 22 decisions pertain to the employees of co-operative societies.

MEMBERSHIP

(i) The challenge before the Division Bench in M.K.Abdul Salam & Ors. v. State of Kerala & Ors.(2018 (3) KLT 507)is confined to S.2(ia), the third proviso to S.18(1) and Explanation I to S.32(1) of the Act. The above provisions were brought in by the Kerala Co-operative Societies (Amendment) Act, 2017.

It is true that only Primary Agricultural Credit Societies and Urban Co-operative Banks can be admitted as members of the District Co-operative Bank with a right to vote as per S.2(ia) of the Act. Other co-operative societies registered under the Act can only be admitted as nominal or associate members without any right to vote as per the third proviso to S.18(1) of the Act. A nominal or associate member under S.18 of the Act shall not have the right to vote under S.20(b) of the Act though funds can be lent to them by the District Co-operative Bank. Does the denial of the right to vote to other co-operative societies as nominal or associate members infringe Article 19(1)(c) of the Constitution of India? The right of a citizen to form a co-operative society has been protected under Article 19(1)(c)
by virtue of the Constitution (Ninety-seventh Amendment) Act, 2011 with effect from 15.2.2012. It is one thing to say that a citizen has a right to form a co-operative society and quite another thing to say that a member society has a right to form a central society. Firstly, a co-operative society is not a citizen who alone can have fundamental rights guaranteed under Part III of the Constitution of India and secondly, even a citizen has no fundamental right to be a member of a society. The contention that the fundamental right of co-operative societies other than Primary Agricultural Credit Societies and Urban Co-operative Banks is infringed is totally misconceived.

The Government was well within their powers to exclude co-operative societies other than Primary Agricultural Credit Societies and Urban Co-operative Banks from the management control of District Co-operative Bank. The legislative wisdom of this Act by amending Section 2(ia) and adding the third proviso to Section 18(1) of the Act cannot be tested or substituted by this Court. It is settled law that court should show undue deference to the parliamentary wisdom and exercise self-restraint while examining the vires of legislations validly enacted.

(ii) Whether the special general body meeting convened by the society in pursuance of the request made by two members, expel a member from the society was the moot question before the Division Bench inCochin City Service Co-operative Bank Ltd. v. Joint Registrar of Co-operative Societies & Anr.(2018 (3) KLT SN 66 (C.No.74) = 2018 (3) KLT OnLine 2074).

Section 17 of the Act stipulates that any member of a society who has acted adverse to the interests of the society, or has failed to comply with the provisions of the bye-laws, may be expelled upon a resolution of the general body passed at a special meeting convened for the purpose. Such resolution has to be supported by not less than two third of the total number of members present and voting at the meeting. In the instant case, such a resolution was passed by the general body of the society at the special general body meeting, in which, 131 members of the society were present and 130 out of them voted. 127 members voted in favour of the resolution to expel the second respondent from membership of the society. The Joint Registrar however rescinded the resolution on the ground that the special general body meeting was not validly convened for the reason that 1/5th of the total number of members of the society had not given a requisition in writing to convene such a meeting.

The stipulation in S.30 and R.36 that a special general body meeting shall be convened within one month from the date of receipt of a requisition in writing from 1/5th of the total number of members of the society cannot be interpreted to mean that a resolution seeking the expulsion of another member can be moved only by 1/5th of the total number of members of the society. R.18 on the other hand empowers any member of a society to bring a resolution for expulsion of another member. S.17 of the Act does not stipulate that a resolution seeking the expulsion of a member of the society can be moved only by 1/5th of the total number of members of the society. The requisition to convene the special general body meeting contemplated in S.30 and R.36 is for purposes other than the expulsion of a member of the society. In the case of expulsion of members, the special general body meeting has to be convened by the committee of the society after considering the explanation furnished by the member concerned. It is evident from R.18(b) that if the managing committee decides to expel a member, after considering the written representation, if any, given by him and after hearing him, if he so desires, it has to convene a special general body meeting after issuing due notice and place the matter before it for decision under S.17. The Joint Registrar as well as the learned single Judge has failed to take into account this crucial and significant aspect of the matter.

In fine, the appeal was allowed and the second respondent was given liberty to move an appeal before the first respondent who shall dispose the appeal on merits.

MANAGEMENT

(i) Rule 47 imposes a statutory duty on the committee of the society to ensure proper custody and accounting of cash and other assets of the society and the committee is answerable for any misappropriation of the same during its tenure. The committee cannot wash its hands off the liability by contending that there was a Secretary in office. This was the ruling in Rajeev Koshy v. State of Kerala(2018 (3) KLT SN 24 (C.No.32) =2018 (3) KLT OnLine 2032).

(ii) The order of appointment of an administrator to the Puthuppally Adhyapaka Urban Co-operative Bank Limited was assailed in Gopakumar K.R. & Ors. v. The Joint Registrar of Co-operative Societies (General) & Ors. (2018 (1) KLT 860). The impugned order was passed for the reason that there was no required quorum for the board of the bank.

Three points emerged for consideration in this case, viz., (i) Whether the bye-laws contemplate cessation of membership of service employees after their retirement from the service?; (ii) Whether the board has the power to nominate specialized members invoking S.28(1)(1G)?, and (iii) Whether nomination of petitioners 8 and 9 was vitiated for want of quorum in the board meeting?

The bye-laws never intended that the service employees will cease to become members on their retirement from service. In the absence of any such provisions in the bye-laws those members cannot be considered as disqualified merely for the reason that they had retired from service.

Section 28AA provides for reservation of members with banking experience or professional qualifications. Therefore, those members will have to contest through election to become members of the committee in a constituency earmarked for such reserved members. On the other hand, S.28(1)(1G) provides for nomination by co-opting two persons, who are having experience in the field of banking, management etc. If there are no members in the Urban Co-operative Bank to be elected among the reserved category under S.28AA, certainly, the board can resort to S.28(1)(1G) to co-opt two persons. If the Urban Bank Society is prevented from co-opting two persons invoking Section 28(1)(IG), in case of non-availability of members under S. 28AA, they will be left without any remedy to have experienced persons in the special field in the board of directors. The Joint Registrar has no case in the impugned order that the society had already worked out reservation under S.28AA and therefore, they cannot invoke S.28(1)(1G). In the absence of any such finding, the nomination made by the board nominating the petitioners 10 and 11 was legally correct and valid.

In the light of the findings on point Nos. (i) and (ii), point No.(iii) was answered in favour of the petitioners holding that there was sufficient quorum to nominate petitioners 8 and 9.

The Joint Registrar committed grave jurisdictional error in passing the orders, placing the issue on wrong premise of law. The management of the society was, therefore, restored with the board which was in office prior to the issuance of impugned orders. The Writ Petition was allowed.

ELECTION

(i) The sole issue that arose for consideration in Mercy George v. Kerala State Co-operative Election Commission(2018 (1) KLT 70),was as to the legality or otherwise of the order passed by the returning officer, whereby the nomination paper submitted by the petitioner to contest in the election to the managing committee of the Kalloorkkad Farmers Co-operative Bank stood rejected. After referring various decisions on the subject, the Court held that if rejection of nomination paper is patently illegal or on totally untenable grounds and there is no need to adduce elaborate oral or documentary evidence in order to substantiate the said contention, then the Court can interfere with the rejection of nomination paper, invoking writ jurisdiction, without upsetting the election calendar. In all other cases, the person aggrieved has to avail the statutory remedy available under S.69 of the Act, before the Co-operative Arbitration Court constituted under S.70A, by raising dispute within one month from the date of election.

(ii) InAbdul Salam v. Kerala State Co-operative Election Commission(2018 (1) KLT SN 15
(C.No.21) the Court clarified the import of sub-rules (3) and (4) of R.35A. Both operate on different fields. So far as sub-rule (3) is concerned, the State Election Commission is to notify the details of election to the committee of the society in two vernacular dailies. However, as per sub-rule (4) it is the duty of the electoral officer to publish the preliminary voters list in Form 34 in the notice board of the head office and branches, if any. On an appreciation of the provisions, it is categorical and clear that so far as the paper publication carried out in vernacular dailies are concerned, there is no time stipulated and the same is within the intention of notifying the committee with respect to the details of election. However, in sub-rule (4) in order to object the draft voters list, seven days time period is
to be prescribed, which is a mandatory requirement. Sub-rule (3) does not insist for publi-cation within any specified period.

(iii) The correctness of the decision in P.V.Manoharan v. Kerala State Co-operative Election Commission & Ors. (2016 (2) KLT OnLine 2508 = 2016 (1) KLJ 784) was challenged before the Division Bench in Kuttiyachan Joseph v. Manoharan(2018 (3) KLT 631).

The disqualification for being elected as members of the committee of the bank is attracted only if the appellants have been sentenced for any offence other than an offence of political character or involving moral delinquency. Such sentence should not have been reversed or offence pardoned and a period of three years should not have elapsed from the date of expiration of the sentence. The legislature has guardedly employed the term ‘sentenced’ instead of ‘convicted’ meaning thereby that only the operation of sentence incurs disqualification. This is in contra-distinction to S.8(1) of the Representation of the People Act where there has to be a conviction in addition to sentence for disqualification.

The invalidation of the act of the Returning Officer who accepted the nomination even if on doubtful grounds would certain impede the process of election and does not in any manner smoothen it. The proper remedy of the first respondent was to call in question the election after it is held by raising a dispute under S.69(2) of the Act. The impugned judgment was set aside and the Writ Petition wherein a declaration was granted that the appellants were ‘disqualified from contesting the election’ was dismissed. Thus, the Writ Appeal was allowed.

(iv) In Ajitha Kumari v. Priyadarsini Vanitha Coir Vyavasaya Co-operative Society Ltd.(2018 (3) KLT 727),the Court noted that going by the Explanation to  S.69(2)(c), a dispute arising at any stage of an election shall be deemed to be a dispute arising in connection with election. Final voters list is one published by the electoral officer in exercise of his powers under R.35A(4). If that be so, any dispute in relation to final voters list published by the electoral officer is a dispute arising in connection with that election, which can be raised before the Co-operative Arbitration Court constituted under S.70A, by invoking the statutory remedy under S.69 within one month from the date of election.

DISQUALIFICATION OF COMMITTEE MEMBERS

R.44 provides for disqualification from the membership of a managing committee of a society. Obviously all the disqualifications mentioned under that head, which includes sub-clause (j), would be with respect to the disqualification relating to a member of the managing committee. The way R.44(1)(j) is drafted would make it inevitable that a member of the society would become ineligible for being elected or appointed as a member of the managing committee, if he is disqualified under any of the provisions of the bye-laws of the society. This would necessarily lead to the inescapable incident that the disqualification mentioned in clause (j) would be the disqualifications enumerated in the bye-laws for being a member of the managing committee and not for being a member of the society.

It therefore becomes perspicuous that so long as the person continues to be a member of the society without being sought to be removed by the Registrar under the provisions of R.27(2), dual membership per semay not be a reason why he can be restrained from offering his candidature or nomination to the election of the society. Since R.35A encompasses the provisions relating to conduct of elections to the committee of the society, the disqualification mentioned herein can only be axiomatically construed to be a disqualification to be a member of the committee, as held by the Division Bench in Mercy George v. Kerala State Co-operative Election Commission (2018 (2) KLT SN 1 (C.No.1) = 2018 (2) KLT OnLine 2001).

PROPERTIES AND FUNDS

Writ Appeals in Radhakrishna Kurup v. Nadakkal Service Co-operative Bank Ltd.(2018 (3) KLT 214) arose out of the common judgment in the case Radhakrishna Kurup v. Nadakkal Service Co-operative Bank Ltd. (2016 (4) KLT 82). The learned single Judge has held that S.56A of the Act was arbitrary and violative of Article 14 of the Constitution since it applies only to co-operative banks and not to commercial banks.

The object of S.56A is to persuade the co-operative banks or the banking companies to sell the non-banking asset and liquefy the same in cash for it to be available as working capital. Otherwise the non-banking assets would remain as a stumbling block paralyzing the entire banking system thereby producing results which are totally counter-productive. The motive of operation of co-operative banks is ‘service’ whereas the motive of operation of commercial banks is ‘profit’ and therefore both cannot be treated on par to test the plea of discrimination. The borrowers of the co-operative banks are member share holders having a definite say in the lending policy of the bank obviously on account of their voting power. But the borrowers of the commercial banks are only account holders with no voting power and the lending policy of the bank is governed by the regulations of the Reserve Bank of India. The co-operative banks usually cater to the credit needs of agriculturists whereas the commercial banks provide short term finance to industry, trade and commerce. The co-operative banks have comparatively less variety of services and offer lesser rate of interest whereas commercial banks have an array of services and offer slightly higher rate of interest. The co-operative bank is a separate class by itself when compared to the commercial banks and the classification is based on an intelligible differentia. The differentia which is the basis of the classification has a nexus with the object sought to be achieved which is obviously the orderly development of the co-operative sector in the State.

Article 14 of the Constitution of India comes into play only when the banks in the same class are treated differently and not when they fall in two distinct classes. In that view of the matter, the impugned judgment was set aside.

AUDIT, INQUIRY AND INSPECTION

(i) The axiomatic question before the Division Bench in Melukkara Service Co-operative Bank Ltd. v. Joint Registrar (General), District Co-operative Society(2018 (2) KLT 640), was as to the nature of the consideration that the Registrar should first commit himself before ordering an inquiry under S.65 on the ground that he is satisfied that it is necessary to do so.

Section 65(1)(a) invests the Registrar with great powers while ordering an inquiry under its mandate, to the working of the society. The words ‘on his own motion’ in sub-clause (a) are not quantified in any manner except that in the last portion of sub-clause (f), it is mandated that he shall order an inquiry only if he is satisfied that it is necessary to do so. A combined reading of these two provisions would make it ineluctable that the Registrar can order an inquiry into the working of a society on his own motion, provided he is first satisfied that it is necessary to do so.

Words ‘that it is necessary to do so’ in the last portion of S.65(1) clearly postulates that the power to be exercised by the Registrar has to be done with necessary care, caution and circumspection. It is not permissible on the part of the Registrar to order an inquiry under S.65 merely because he is competent to do so. The powers vested with him being virtually plenary in nature, the requirement of him being subjectively satisfied that it is necessary to do so is statutorily in-built. The requirement of being personally satisfied before an inquiry is ordered by the Registrar is implicit in the provision and, therefore, it is essential that before making an order under S.65, to cause an inquiry into the working of the society, it is necessary and exigent for the Registrar to be first satisfied that such an inquiry is required and essential.

(ii) The Joint Registrar was in appeal against the judgment in Akalakkkunnam Village Service Co-operative Bank Ltd., v. Joint Registrar of Co-operative Societies & Anr.,(2017 (4) KLT 628) before the Division Bench in Joint Registrar of Co-operative Societies (General) v. Akalakkkunnam Village Service Co-operative Bank Ltd.(2018 (3) KLT 849).

The second respondent who is a member of the first respondent bank filed a representation to the appellant complaining that about 1225 persons were ineligible to be members. An inquiry on the representation necessarily involved issuing individual notices to the members complained about and hearing them before an order is passed. The appellant issued notice to the first respondent to meet the expenses. The said notice was quashed by the impugned judgment on the ground that neither the Act nor the Rules support the demand.

It is true that expenses may have to be incurred for issuing notices to the members complained of since the Registrar is obliged to give them an opportunity to file objections or of being heard before passing an order. But that by itself may not be a justification to demand expenses from the member of the society or the financing bank on whose representation was the inquiry initiated by the Registrar. The learned single Judge was correct in quashing the notice issued by the Joint Registrar demanding expenses from the first respondent even before an inquiry. The Division Bench observed that the expenses incurred can be recovered from the second respondent who filed the representation if his complaint is found to be ill-founded. The second respondent can be so saddled with the liability only after the completion of the inquiry and if it is found that the representation is bereft of bona fides. The valuable time and energy of the Registrar would otherwise go waste in disposal of the frivolous representations put in by any member of the society or the financing bank. The Writ Appeal was disposed accordingly.

(iii) In Wayanad District Wholesale Consumers Stores Ltd. v. Joint Registrar of
Co-operative Societies (General) (2018 (4) KLT SN 50 (C.No.57) = 2018 (4) KLT OnLine 2057)
the Court quashed the order issued by the Joint Registrar under S.68 without mentioning the specific point or points on which the inquiry is to be made. The law laid down in Cheranellur Co-operative Society Ltd. case(1976 KLT 353) was relied on.

SURCHARGE

Whether the opportunity given to peruse the inquiry report would be sufficient compliance of ‘opportunity of being heard’ in S.68(2) before imposing surcharge came to be decided by the Division Bench in Thomas v. Secretary to Government, Co-operation, (2018 (3) KLT 244).The petitioner was unsuccessful before the learned single Judge.

Several data will be incorporated in the inquiry report which is an item of evidence in the proceedings for surcharge to substantiate the allegations levelled. The charge is that those persons caused loss or damage to the assets of the society by breach of trust or wilful negligence or mismanagement or misappropriation or destroyed the records. The inquiry report containing minute details rested on collection of several data cannot be memorized by a perusal for 2-3 hours by an untrained legal mind. The inquiry report cannot be withheld or relied on in evidence behind the back of the persons proceeded against without furnishing a copy of the same to them when sought. Fairness demands that a copy of the inquiry report is supplied when applied for so that the persons who are sought to be surcharged get an opportunity to collect evidence for rebuttal. The fact that the inquiry report is voluminous is no excuse since the copy can be furnished to the persons on terms and a mere opportunity to peruse the same is not a substitute. The ‘opportunity of being heard’ in S.68(2) of the Act takes within its fold the obligation to furnish a copy of the inquiry report when applied for. All these should precede the order in writing under S.68(2) of the Act by the Registrar requiring the persons to repay or restore the money or property or any part thereof.

It is true that a person against whom an inquiry has been ordered under S.68(1) of the Act need not be heard before passing an order to conduct an inquiry. But when once an inquiry is ordered the Registrar is duty bound to adhere to the principles of natural justice by furnishing copy of the audit, inquiry or inspection relied on to the persons concerned. In fine, the impugned judgment was set aside and the case was remitted to the Joint Registrar to furnish a copy of the report and then proceed in accordance with law.

SUPERSESSION

(i) A comparative survey between Ss.68 and 32 was made by the Division Bench in Shabin Antony v. Gireesh Kumar (2018 (1) KLT 260). The Court observed that the two provisions make it irrefragable that surcharge proceedings can be initiated only with respect of fiscal indiscipline or mismanagement causing loss to the assets of the society or if the delinquent has illegally retained any money belonging to the society or has destroyed the records with intend to cover such misfeasance. The provisions of S.32, on the other hand, does not confine itself to fiscal mismanagement or indiscipline alone, though they are also included in the criterion leading to such action and the Registrar is statutorily entitled, after following due procedure to order supersession, if he finds persistent negligence and default in performance of the duties or if any act is found proved prejudicial to the interests of the society or if the committee wilfully disobeys or fails to comply with any lawful order. It is, therefore, leculent that the powers and considerations under S.32 is of a much wider compass than that would be involved in a surcharge proceedings, even though a few of the criterion, namely those relating to fiscal management or indiscipline are common in both. In such view of the matter, no doubt, it might appear that setting aside an order under S.32 because of a subsequent order under S.68 would be incongruous.

(ii) Order suspending the board of co-operative society for a period of six months issued by the Joint Registrar (General) under S.32(1) was impugned before the Division Bench in Hameed Kutty v. Joint Registrar of Co-operative Societies (General) (2018 (3) KLT 149).
The grounds under which the Registrar can remove the managing committee in office and appoint its place one administrator or an administrative committee are explicitly spelt out in S.32. The removal of the managing committee can either be by way of suppression or suspension which in the former case is permanent and the latter case is temporary capable of reinstatement.

The word ‘or’ appearing in the third proviso of S.32(1) implies that supersession and suspension should not coalesce the same period. The supersession of the board of a society can follow the suspension if there are just grounds and not vice versaunless the superseded committee is reinstated in office. It should be noted that S.32(1) was amended empowering suspension in addition to supersession in tune with Article 243ZL of the Constitution. The decision in Hameed Kutty M.S. & Ors. v. Joint Registrar of Co-operative Societies & Ors.(2017 (1) KLT 511)was approved and the contention of the appellants that there is no power of suspension was repelled. The Writ Appeals were dismissed.

DISPUTES

(i) It is evident from a reading of the plaint in ARC that the respondent was not originally joined as a defendant. As a matter of fact, it was he, who had signed and verified the plaint in his capacity as the Secretary in-charge of the appellant society. Though the plaint was thereafter, by joining the writ petitioner and three others as additional defendants 11 to 14, the body of the plaint was not amended by raising appropriate pleadings against them. They were not put on notice regarding the nature of their involvement in the fraudulent transactions and the grounds on which liability was sought to be fastened on them. The Division Bench was in agreement with the learned single Judge that adequate opportunity was not given to the writ petitioner to meet the case against him. The amended plaint did not contain any averment as against the writ petitioner. The appeal was accordingly dismissed by the Division Bench in Kannur District Ex-servicemen Multi Purpose Co-operative
Society Ltd. v. Sivadasan(2018 (2) KLT 901).

(ii) The petitioner was a practicing lawyer. The respondent society had engaged the petitioner to file execution petition for executing awards passed in favour of the society and paid professional fees. The petitioner did not conduct the case and returned the awards to the society without even filing execution petition. The ARC was filed by the society seeking return of the amount paid as professional fee with interest was challenged in Sugatha Kumar v. Assistant Registrar of Co-operative Societies (General) (2018 (3) KLT 44).

The engagement of the petitioner as an advocate for the purpose of filing execution petition for recovery of amounts due under the loans advanced by the society would also be a matter which touches upon the business of the society. Even if the question whether the petitioner is an agent of the society is not considered, the petitioner would be a creditor of the society in the sense that where professional fees are accepted and services are not provided, the advocate would be bound to return such part of the fees as has not been earned. There was no perversity or patent illegality in the impugned orders and the Writ Petition was dismissed.

(iii) In Shibi v. Vaniyamkulam Panchayath Vanitha Sahakarana Sangham(2018 (4) KLT 444),the Division Bench held that an arbitration case will lie against the surety in respect of a loan even if he is not a member of the society in view of the explicit provision contained in S.69(1)(j) of the Act. An arbitration case should lie against the indemnifier also applying the same logic when his liability is co-extensive with the agent who is sued under S.69(1)(c) of the Act. Multitude of litigations arising out of the same cause of action has to be deprecated and the very object of S.69 is to curtain lengthy procedure.

APPEAL, REVISION AND REVIEW

(i) In Thumboor Service Co-operative Bank Ltd. v. Sobhy(2018 (1) KLT 512), it was held
that only an award passed by the Co-operative Arbitration Court under Section 70(1) is appealable to the Tribunal in terms of S.82(1)(a). Clauses (b) to (e) of S.82(1) deal with other scenarios and do not deal with a decision of the Co-operative Arbitration Court. S.70(2) deals with the interlocutory orders that may be passed by the Co-operative Arbitration Court in contradiction to the final award that may be passed by the said Arbitration Court as envisaged in S.70(1). S.82 has consciously excluded from the appealable purview, as interlocutory order passed by the Co-operative Arbitration Court as envisaged in S.70(2). The legislature has consciously included in S.82(1) only an award of the Co-operative Arbitration Court as provided in S.70(1) as appealable. The impugned orders were interlocutory orders passed by the Arbitration Court and therefore were not appealable before the Co-operative Tribunal. Therefore, the impugned judgments passed by the Kerala Co-operative Tribunal were without jurisdiction and hence ultra viresand liable to be interfered with.

(ii) Belated challenge, nearly after two years, by way of Writ Petition against the judgment of the Co-operative Tribunal need not be entertained under Ss.69 and 77, vide John Mathew v. Assistant Registrar of Co-operative Societies(2018 (3) KLT SN 18 (C.No.23) = 2018 (3) KLT OnLine 2023).

(iii) The correctness of the decision of the learned single Judge in Nedumon Service Co-operative Bank Ltd. v. Joint Registrar of Co-operative Societies & Ors.(2014 (4) KLT SN 63
(C.No.78)) was impugned by the bank by way of Writ Appeal in Nedumon Service Co-operative Bank Ltd., v. Joint Registrar of Co-operative Societies & Ors.(2018 (3) KLT 412).
The judgment was confirmed by the Division Bench for altogether different reasons.

The Joint Registrar rescinded the resolution of the managing committee deciding to enrol 485 persons as members of the bank on the basis of an inquiry conducted under S.65 by the Assistant Registrar, preceded by a show cause notice and an opportunity of personal hearing to the bank. There arose many factual disputes on the report which can be gone into only in an appeal filed to the Government under S.83(1)(j) of the Act assailing the order of the Joint Registrar. The jurisdiction under Article 226 cannot be invoked by the bank challenging the finding of fact rendered by the Joint Registrar under R.176.

The bank heavily relied on R.16(4) to contend that the persons found ineligible to be members should have been afforded a personal hearing to state their objection about the proposed action. The infraction of the above rule will certainly entitle a member to maintain a Writ Petition on the ground of violation of principles of natural justice. But none of the members had filed the Writ Petition from which the Writ Appeal arose. The Writ Appeal was eventually dismissed.

RECOVERY

When there is no power granted to the board of management to quantify the damages under the statute or the Rules, the board of management is not at liberty to quantify damages allegedly suffered by the bank, especially when S. 69 enables the bank to seek recovery of any damages from its employees by instituting appropriate proceedings. Without any power conferred under law, nobody is vested with power to quantify the damages suo motuand recover the same unilaterally. The procedure adopted by the management to recover the amount is strange and alien to rule of law, as held in Kottayam District Co-operative Bank Ltd., v. Co-operative Tribunal (2018 (1) KLT SN 32 (C.No.43).

ATTACHMENT AND SALE

When sale of mortgaged property is carried out without even fixing a fair and accurate value of that property, sale is liable to be set aside under R.8 of the Co-operative Agricultural and Rural Development Bank Rules, 1986, vide Sosamma John v. Thrissur Co-operative Agricultural & Rural Development Bank(2018 (2) KLT SN 30 (C.No.39) = 2018 (2) KLT OnLine 2039).

RIGHT TO INFORMATION ACT

When the rule mandates that every co-operative society will have to prepare and publish list of its members as on the last day of each co-operative year concerned under R.33(4), such vital information should also necessarily be conveyed by that society to the supervisory officer concerned of the Co-operative Department is the ruling in Nedungapra Service Co-operative Bank Ltd. v. Public Information Officer (2018 (3) KLT 355).

MISCELLANEOUS

(i) Writ petition was filed in Meenachil Rubber Marketing & Processing Co-operative Society Ltd., v. Choondacherry Service Co-operative Bank Ltd.(2018 (2) KLT SN 55 (C.No.66)
= 2018 (2) KLT OnLine 2066) for issuing a direction to co-operative society to repay amount covered by fixed deposit with future interest. The Division Bench held that in the absence of any violation of statutory provisions or breach of any public duty by the co-operative society, a Writ Petition would not be maintainable against the society.

(ii) The question which essentially felt for consideration before the Division Bench in Kerala State Co-operative Bank Ltd. v. Kerala Co-operative Ombudsman(2018 (2) KLT 251)
was whether Ombudsman has jurisdiction to entertain a complaint regarding variation/enhancement of the rate at which interest is payable on the amount of loan granted to a person by the bank pursuant to an agreement executed between the bank and the borrower.

A reading of Clause 5(1) of the Ombudsman Co-operative Scheme 2010, would show that Ombudsman could consider only complaints relating to deficiencies in the business or services of societies. It is also provided that such complaints shall be on the grounds mentioned in Clause 7 of the scheme. Clause 7(2)(e) provides that no complaint to the Ombudsman shall lie if the complaint is in the nature of a dispute under S.69 of the Act or in the nature of an appeal/petition under Ss.82 and 83 of the Act. It means that the Ombudsman has no jurisdiction to entertain and deal with a complaint which is in the nature of a dispute.

When the provisions of the scheme specifically provides that no complaint shall lie before Ombudsman in respect of disputes covered by S.69, submission of the bank to the jurisdiction of the Ombudsman does not give it jurisdiction to entertain and decide such a complaint. It is a case of patent lack of jurisdiction. The rate of interest is fixed as per the contract between the bank and the borrowers. It is not fixed by the Reserve Bank of India or the Registrar. The Ombudsman has no jurisdiction to decide a complaint regarding variation of interest by the bank in violation of the terms of the agreement executed by it and the borrowers.

(iii) In Shaji v. Alappuzha District Co-operative Bank Ltd.,(2018 (4) KLT 1176) direction was sought to the first respondent to consider the direction given by the second respondent Joint Registrar to allow him to clear the defaulted instalments in lump sum and also permit him to repay the regular monthly instalments. Rejecting the plea the Court held that it is well settled that a litigant who invokes the extraordinary jurisdiction under Art.226 of the Constitution must come with clean hands and clean objects. The judicial proceedings are sacrosanct and no person would be allowed to abuse the judicial process, particularly in public law remedy. In writ proceedings, the Court places implicit faith on the parties and their pleadings, as it does not indulge in any fact finding or roving enquiry of what has been asserted. Since Art.226 espouses equity jurisprudence, a litigant who has approached the Court with unclean hands, without disclosing full facts, is not entitled to any relief.

EMPLOYEES OF SOCIETIES

(i) The Apex Court has in Deepali Gundu Surwase v. Kanti Junior Adhyapak Mahavdyalaya (D.ED.) & Ors.(2013 (3) KLT Suppl.72 (SC) = (2013) 10 SCC 324) held that
with the passing of an order which has the effect of severing the employer employee relationship, the latter’s source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. It was observed that these sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra viresthe relevant statutory provisions or is in violation of the principles of natural justice, entitles the employee to claim full back wages. The Apex Court has also held that if the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. It was held by the Division Bench in Perinthalmanna Taluk Co-operative Educational Society v. Satheeratnam (2018 (2) KLT 99) that denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.

(ii) Once the appointment was purely contractual, then by efflux of time as envisaged in the contract itself, the same came to an end and the persons holding such post can have no legal right to continue or renew the contract of service as a matter of right. The petitioner had voluntarily accepted the engagement as plant attendar on daily rated basis subject to the conditions clearly stipulated therein. Having accepted such engagement, with eyes wide open, the petitioner cannot now turn around and claim higher rights ignoring the conditions subject to which such engagements have been accepted. This is the ruling in
Santhosh v. Malabar Regional Co-operative Milk Producers Association(2018 (2) KLT SN 76 (C.No.95) = 2018 (2) KLT OnLine 2095).

(iii) Challenge was made before the Division Bench on the validity of the judgment dated 1.3.2016 in W.P.(C) 31764/2013 of the learned single Judge contending inter alia that the disciplinary action envisaged under R.198 could not have been dispensed with before the order of dismissal.

The word ‘shall’ appearing in sub-rules (2), (2A) and (2B) of R.198 implies that it is mandatory to conform to the procedure before imposing the penalty of ‘dismissal from service’ of any member of the establishment. Any exchange of notices without informing the employee in writing of the grounds on which action is proposed to be taken out or without affording him an opportunity to defend is not a substitute. Similar is the necessity to constitute a disciplinary sub-committee who of course can enquire into the charges against the employee by themselves or by engaging an external agency. All the procedure should precede ‘the order of dismissal from service’ which in the instant case was concededly not done rendering the proceeding non est in law. The Writ Appeal was allowed.

(iv) A reading of the communication would reveal that the Government has dictated to the Registrar to request the Kannadi Service Co-operative Bank to place the appellant under suspension which has been conveyed by the Assistant Registrar. The bank is bound by the orders of dictation giving little room for it to independently apply its mind about the need to place the appellant under suspension. There is no doubt on the entitlement of the bank to independently assess the materials and take a decision as to whether the appellant has to be placed under suspension or not. But the apprehension that the bank would mechanically issue orders placing the appellant under suspension on dictation by the Government cannot be said to be ill-founded. In the above circumstances, the Division Bench in Suresh v. Joint Registrar (General) (2018 (3) KLT 320) has set aside the impugned judgment of the learned single Judge and quashed the communication leaving it open to the bank to do the needful as is warranted under the circumstances.

(v) Writ Appeals in Mayadevi v. Thrissur District Co-operative Bank Ltd.
(2018 (3) KLT 330), arose out of the judgment in Omana K.S. & Anr. v. Thrissur District Co-operative Bank Ltd., & Anr., (2015 (3) KLT Online 1103 : 2015 Lab.I.C. 4268). The learned single Judge quashed the notification issued by the bank for appointment to the category of part time sweeper in the existing and future vacancies on the ground that the said notification was suffering from the vice of vagueness and hence arbitrary.

The Division Bench held that a notification can be said to be vague or arbitrary in the context of Article 14 of the Constitution only if the same is unworkable or susceptible to two interpretations at the time of its enforcement. The notification in the instant case prescribes the age requirement and qualifications as per S. 80 of the Act which cannot be said to be unclear. It stipulated that the reservation shall be followed as per the statute. Therefore, the notification was upheld and the Writ Appeals were allowed.

(vi) Whether the bank can unilaterally appropriate the amount from the retiral benefits without resorting to the adjudicatory process under the Act was the question before the Division Bench in Philip v. Registrar of Co-operative Societies(2018 (3) KLT 347). The learned single Judge did not provide relief to the petitioner in C.M.Philip v. The Registrar of Co-operative Societies & Ors.(2017 (2) KLT 1087) and hence this appeal.

The disciplinary authority could have imposed the punishment of recovery from pay of any pecuniary loss caused to the bank while the appellant was in service as a member of the establishment. No such penalty was imposed and the disciplinary authority was rest contended with imposing the penalty of reduction to a lower rank which the appellant has already suffered. A fresh disciplinary proceedings for imposing the penalty of recovery from pay (even if it includes pension) can be initiated only if the appellant is still a member of the establishment. No other disciplinary proceedings are possible after the appellant has retired from service. There is no rationale or justification in the bank retaining the retiral benefits of the appellant which are no longer a bounty but valuable right in his hands. The Writ Appeal was allowed and the impugned judgment was quashed.

(vii) The Enathu Service Co-operative Bank has challenged the judgment of the learned single Judge in Vinodkumar T.R. & Anr. v. Enathu Service Co-operative Bank
(2015 (4) KLT SN 64 (C.No.76))in Enathu Service Co-operative Bank Ltd. v. Sachu
(2018 (3) KLT 389)before the Division Bench. By impugned order, the notification issued by the bank was quashed on the ground that the method adopted by the bank resulted in deprivation of opportunity to the candidates of all sections to compete for one post.

The bank has reserved the post of data entry operator (equivalent to the post of clerk or typist) for physically handicapped persons after identifying the said post as per S.32 of the Disabilities Act. Such an identification is essential and the resolution of the bank was in order even if it deprived the able-bodied candidates from applying to the post. The criticism for reserving a ‘specific post exclusively for the physically challenged’ has been made without reference to Circular No.54/2011 and S.32 of the Disabilities Act. There is no rationale or justification in directing the physically handicapped candidates to compete with the able-bodied candidates for the same post. Manual typewriters are replaced by desktop computers and the same can be easily handled by physically handicapped candidates working as data entry operators. Resultantly, the Writ Appeal was allowed and the bank was directed to continue the recruitment process from the stage at which it was halted.

(viii) The challenge in Kerala Co-operative Employees Front v. Government of Kerala(2018 (3) KLT 484) was against Note 6 to Appendix III of the Co-operative Societies Rules by S.R.O. 9/2010. Note 6 refers to reduction of salary consequent upon reclassification of the society. Government is having power under S.80 to classify the societies according to their type and financial position. Under S.80(6) the Government is having power to fix the pay and allowance and other benefits of employees of co-operative societies. The Government also have power to prescribe the staff pattern as well as the pay and allowances applicable to such societies. Consequent upon degradation of society, the Government has no right to revise and reduce pay and allowances that was enjoyed by such employees before degradation. The pay and allowances to an employee therefore cannot be made dependent on profit of a co-operative society. It is open for the Government to fix the pay and allowances. But it cannot reduce such pay and allowances merely referring to the financial position of the society. Such an action is repugnant to the goal of a welfare State based on socialist ideals. Note 6 to Appendix III to the extent ordering reduction of salary is without power. The power to fix the pay and allowances cannot include the power to reduce salary unless such power is expressly given to the Government. The accrued rights of an employee can be only divested through the legislative power and the Government can use such power only if it is so authorized. The Writ Petitions were allowed striking down
Note 6 to Appendix III of the Rules to the extent ordering reduction of pay and allowances on reclassification of the society.

(ix) Can the Writ Petition be entertained against a co-operative society even if there is a violation of the principles of natural justice was the question posed before the Division Bench by the appellant bank in Anapanthy Service  Co-operative Bank Ltd. v. Thomas
 (2018 (3) KLT 592).A violation of the principles of natural justice may at best enable the delinquent to skip the statutory remedy and invoke the writ jurisdiction provided the impugned over was passed by a Government authority. In this case, the proceedings were issued by the sub-committee of a co-operative society which is not a ‘State’ coming within Article 12 of the Constitution. The learned single Judge has evaluated the evidence of the parties before the disciplinary enquiry officer to come a finding that the charges against the delinquent were not proved. It is for the Co-operative Arbitration Court or the Labour Court to do so and it is not for the writ Court to test the sufficiency of evidence in the disciplinary proceedings for the first time. As an upshot, the impugned judgment was set aside and the Writ Petition was held not maintainable. The appellant was given liberty to move the appropriate forum and thus the Writ Appeal was allowed.

(x) Can the Co-operative Arbitration Court constituted under the Kerala Co-operative Societies Act direct an employer society to retain the services of an employee whom it no longer wishes to employ was decided by the Division Bench in Ambika v. The Kottappady Service Co-operative Bank Ltd.(2018 (3) KLT 779).

The issue is now set at rest by the decision in Maharashtra State Co-operative Housing Finance Corporation Ltd. v. Prabhakar Sitaram Bhandange(2017 (2) KLT Online 2020 (SC) = (2017) 5 SCC 623), wherein it was clarified that contract of personal service is not enforceable under the common law. S.14 read with S.41(e) of the Specific Relief Act specially bars the enforcement of such a contract. It is for this reason the principle of law which is well established is that the civil Court does not have the jurisdiction to grant relief of reinstatement as giving of such relief would amount to enforcing the contract of personal service. The Registrar whose jurisdiction is co-terminus with that of the civil Court cannot specifically enforce a contract of personal service which is barred under S.14 read with S.41(e) of the Specific Relief Act. It goes without saying that reinstatement in service amounts to specifically enforcing a contract of personal service which cannot be granted by the Court. S.11A of the Industrial Disputes Act empowers the Labour Court to direct reinstatement of the workman on such terms and conditions as it things fit.

No power is given to the Court constituted under the Kerala Co-operative Societies Act to direct reinstatement in service of a delinquent as can be found in S.11A of the I.D. Act. But a delinquent who is a ‘workman’ as defined in the I.D. Act has the option to move the Labour Court even if he is an employee of the co-operative bank. The Labour/Industrial Tribunal can order reinstatement in service whereas the Court constituted under the Kerala Co-operative Societies Act can only award damages for wrongful termination of service. Affirming the judgment of the learned single Judge, the Writ Appeal stood dismissed.

(xi) The subsisting grievance of the appellant in Viswanathan v. Haripad Service Co-operative Bank Ltd.(2018 (3) KLT 815)was as regards the non disbursement of pay revision arrears since other retiral benefits like pension, gratuity, provident fund etc., have been received pursuant to the Writ Petition. The relief on that count was declined solely for the reason that the arrears was for the period from 1.7.1991 to 17.7.1998 and the claim made years after was belated. It should be borne in mind that the object behind the periodic revision of the pay scale is to ensure a decent standard of living which emanates from Art.43 of the Constitution.

The mere fact that the co-operative bank thought it fit to postpone the disbursement of the pay revision arrears in implementation does not affect the entitlement thereof. The total salary includes the pre-revised and revised pay and the admitted disbursement of a portion to the appellant during the period in question saves limitation even if there is any. The respondent was directed to disburse the pay revision arrears due to the appellant within a time frame and the impugned judgment to that extent stood modified by the Division Bench.

(xii) Divergent views on the question of passing an order of relaxation of the educational qualification of an employee for the purpose of promotion in terms of R.185(8) in anticipation of an arising vacancy by the Registrar were settled by the Division Bench in Mariyamma v. Thrissur District Co-operative Bank Ltd. (2018 (3) KLT 863).

It is to remove the anomaly and the iniquitous position has the practice of passing an order of relaxation of education qualification by the Registrar well ahead become prevalent. The expression ‘for the propose of promotion’ occurring in R.185(8) has to be understood as ‘for the object of promotion’ lest it does violence to the principles of statutory interpretation. R.185 (8) cannot be interpreted to mean that an order of relaxation of educational qualification can be passed only after a vacancy for promotion has arisen. A vacancy is asine qua nonfor promotion and an order of relaxation of educational qualification for an employee is passed by the Registrar to facilitate promotion. It was answered that the Registrar is competent to relax the qualification of an employee for the purpose of promotion in deserving cases in anticipation of an arising vacancy.

(xiii) Once wilful disobedience of a lawful authority is found, justification for disobedience shall not be a defence is the dictum of the Division Bench in Kerala Co-operative Milk Marketing Federation Ltd. v. Mathew(2018 (3) KLT 1112).If the direction given is lawful and with authority, it needs to be obeyed. Wilful disobedience to the instruction of the superior amounts to insubordination. Unless the standing orders or the staff regulations specify the nature of the work of an employee, the employer is the best person to decide as to the nature of the work to be allotted to an employee. The wisdom of the employer in the said regard cannot be challenged. The staff regulations clearly spell out that the delinquent was liable to obey the instructions given to him regarding taking over of charge. Necessarily, the enquiry officer needs to consider if the disobedience was wilful. But once wilful disobedience of a lawful authority is found, the justification for disobedience shall not be a defence on the charge. Of course, it could be a factor relevant while deciding on the punishment, if any, to be imposed.

(xiv) The order of appointment of an administrator to the Puthuppally Adhyapaka Urban Co-operative Bank Limited was assailed in Gopakumar K.R. & Ors. v. The Joint Registrar of Co-operative Societies (General) & Ors.(2018 (1) KLT 860).The impugned order was passed for the reason that there was no required quorum for the board of the bank.

Three points emerged for consideration in this case, viz., (i) Whether the bye-laws contemplate cessation of membership of service employees after their retirement from the service?; (ii) Whether the board has the power to nominate specialized members invoking S. 28(1)(1G)?, and (iii) Whether nomination of petitioners 8 and 9 was vitiated for want of quorum in the board meeting?

The bye-laws never intended that the service employees will cease to become members on their retirement from service. In the absence of any such provisions in the bye-laws those members cannot be considered as disqualified merely for the reason that they had retired from service.

Section 28AA provides for reservation of members with banking experience or professional qualifications. Therefore, those members will have to contest through election to become members of the committee in a constituency earmarked for such reserved members. On the other hand, S.28(1)(1G) provides for nomination by co-opting two persons, who are having experience in the field of banking, management etc. If there are no members in the Urban Co-operative Bank to be elected among the reserved category under S.28AA, certainly, the board can resort to S.28(1)(1G) to co-opt two persons. If the Urban Bank Society is prevented from co-opting two persons invoking

Section 28(1)(1G), in case of non-availability of members under S.28AA, they will be left without any remedy to have experienced persons in the special field in the board of directors. The Joint Registrar has no case in the impugned order that the society had already worked out reservation under S.28AA and therefore, they cannot invoke S.28(1)(1G). In the absence of any such finding, the nomination made by the board nominating the petitioners 10 and 11 was legally correct and valid.

In the light of the findings on point Nos. (i) and (ii), point No.(iii) was answered in favour of the petitioners holding that there was sufficient quorum to nominate petitioners 8 and 9.

The Joint Registrar committed grave jurisdictional error in passing the orders, placing the issue on wrong premise of law. The management of the society was, therefore, restored with the board which was in office prior to the issuance of impugned orders. The Writ Petition was allowed.

(xv) The appellants who are working in the post of Senior Accountant in the respondent co-operative bank sought provisional promotion to the post of Branch Manager. It was conceded that vacancies in the quota for promotees have already been filled up and what remains to be filled up are the vacancies in the quota for direct recruitment. The appellants inAnilkumar v. Thrissur District Co-operative Bank(2018 (4) KLT 344), placed reliance on S.80(8) of the Act which provides that interim vacancies exceeding 30 days and above may ordinarily be filled up by temporary promotion. The Division Bench held that the appellants may claim temporary promotion in the quota for promotees and does not permit them to encroach into the quota for direct recruitment. The practice of provisional promotion encroaching into the quota earmarked for another stream and subsequent reversion when regular hands come has to be deprecated. The Writ Appeal was dismissed.

(xvi) The question before the Division Bench in Shajith v. Hamza(2018 (4) KLT 349),
was whether the benefit of relaxation of educational qualification could be granted with retrospective effect. It shall be competent for the committee of a society to relax the qualification of an employee for the purpose of promotion with the prior approval of the Registrar as per R.185(8) as it earlier stood. The ‘prior’ approval has been converted to a ‘post’ approval by the Registrar on the request of the society as per R.185(8) amended with effect from 3.9.2005.

The mere fact that ‘prior’ approval has been converted to a ‘post’ approval as per
R.185(8) as amended does not mean that the benefit of relaxation would inure only from the date of the order of the Registrar. The power to recommend for the relaxation is still with the managing committee of the society. There is no significant shift in the power of both the society and the Registrar even after amendment. The judgment of the learned single Judge was affirmed and the Writ Appeal was dismissed.

(xvii) Whether the rank list will cease to be valid after vacancies are filled up was clarified by the Division Bench in Pannivizha Service Co-operative Bank Ltd., v. Smitha T. Pillai(2018 (4) KLT SN 31 (C.No.34) = 2018 (4) KLT OnLine 2034). The purpose of the stipulation in R.182(4)(viii) that the vacancies shall be filled up within one month from the date of publication of the rank list is to ensure that the society or bank concerned does not delay making appointments to the notified vacancies. It is to prevent such a contingency that it is stipulated in R.182(4)(vii) that the rank list shall be published within 20 days from the date of receipt of the consolidated mark list. Though in R.182(4)(viii) it is stipulated that the vacancies shall be filled up within one month from the date of publication of the select list that by itself is not a reason to hold that thereafter the rank list ceases to be valid and therefore vacancies arising after the notification but before the rank list was published and vacancies which arise after the rank list is published and during its currency, need not be filled up. The expression used in R.182(4)(viii) is ‘all appointments to the vacancies’ and not ‘all appointments to the notified vacancies’. As the ranked list has a validity period of two years, the words ‘arising during the period of validity of the ranked list’ has to be read into R.182(4)(viii) as otherwise the stipulation in clause (vii) would be rendered illusory and meaningless.

(xviii) When reservation is given to a particular category of persons, it is necessary that the applicant satisfies or falls within that eligibility criteria even as on the date of appointment. The post being reserved for the employee of a member society, if as on the date of appointment, he ceases to be so, he gets denuded of the eligibility for appointment under R.187. The Division Bench inIndu v. State of Kerala (2018 (4) KLT SN 33 (C.No.36)
= 2018 (4) KLT OnLine 2036) held that law is settled that once selection process has commenced, there cannot be a subsequent tinkering with the eligibility criteria.

(xix) In view of law laid down by the Full Bench in Chandrasekharan Nair’scase (2017 (4) KLT 276) and also the judgment of the Division Bench in W.A.No.524/2018, the entitlement of an employee of a co-operative society, which is covered by the provisions under the Payment of Gratuity Act, to receive better terms of gratuity arises only when such an employee is covered by better terms of gratuity under S.4(4) of the said Act. In the instant case, at the time of retirement of the petitioner, payment of gratuity of the employees of the second respondent bank was covered by the policy issued by LIC with a ceiling of `3,50,000. In such circumstances, in terms of master policy, the entitlement of the petitioner for gratuity was only ` 3,50,000 together with interest for delayed payment. The claim made by the petitioner for payment of gratuity in excess of statutory limit under S.4(3) of the Payment of Gratuity Act was repelled by the Court in Kuttykrishnan Nair v. Joint Registrar (General)(2018 (4) KLT SN 44 (C.No.49) = 2018 (4) KLT OnLine 2049).

(xx) It should be borne in mind that the disciplinary sub-committee was not bound to ipso factoaccept the enquiry report and was also at liberty to discard the same for cogent and justifiable reasons. A finding of the enquiry officer which was not rested on evidence or a finding entered into on the basis of a perverse appreciation of the material on record can be discarded. But this privilege is lost when the same person functions as a witness of the employer society and also as disciplinary sub-committee constituted to probe into the charges against the employee appellant. The Division Bench in Joseph v. Idukki District Taxi Drivers Co-operative Society Ltd. (2018 (4) KLT SN 53 (C.No.61) = 2018 (4) KLT OnLine 2061) found that when one has functioned in both the capacities rolled into one, it is sufficient to hold that the punishment imposed by the disciplinary sub-committee after the culmination of the disciplinary proceedings was biased.

(xxi) In case of societies to which the Payment of Gratuity Act is not applicable, since there is no provision in the Co-operative Societies Act or Rules akin to S.4(5) of the Gratuity Act, the maximum amount payable cannot in view of the first and second provisos, exceed 15 months pay as stipulated in first proviso even if any special scheme has been opted by the society for payment of gratuity. If the Payment of Gratuity Act is applicable, in view of S.4(5) of the said Act, the employee shall be entitled to the entire amount due under the special terms of gratuity irrespective of any restriction regarding quantum and in cases of societies not covered by the Central Act, the restriction under the first proviso applies irrespective of the availability of any scheme. This view was held by the Division Bench in Malappuram District Co-operative Bank v. Janardhanan(2018 (4) KLT SN 58 (C.No.66) =
2018 (4) KLT OnLine 2066).

(xxii) The common issue raised inPrasannakumari v. Pathanamthitta District Co-operative Bank Ltd. (2018 (4) KLT 1311) was the entitlement of the employees of various District Co-operative Banks in the State for provisional promotion to the post of branch manager against vacancies earmarked for direct recruitment, which are lying vacant in the absence of candidates advised by Kerala Public Service Commission. Dismissing the batch of Writ Petitions without prejudice to the right of the petitioner to work out his remedy before the Arbitration Court under S.69 of the Act the Court observed that the provisions under Ss.69 and 70 make it abundantly clear that an effective statutory forum has been created under the Act for adjudication of disputes of the employees of a co-operative bank in connection with their employment, including promotion and inter seseniority.

The district co-operative banks cannot be characterized as a ‘State’ falling under Art.12 of the Constitution and therefore, the petitioners cannot seek a writ of mandamus commanding the respective district co-operative banks and its administrators to provisionally promote them to the post of branch managers. If the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions, it cannot be said to be a statutory body.

The Court observed further that the committee cannot on its own appoint any person who does not have the requisite qualification under R.186. If unqualified person is appointed, the Registrar who has power of supervision in the working of the society can interfere and correct the same.

“The Protection of Human Rights Act 1993”–Needs Radical Change

(By Devi A.R., Section Officer, Law Department, Govt.Secretariat, Trivandrum)

  Human rights are those inalienable rights, owed to every person simply because he is a human being. Human rights are held only by human beings but equally by all; they did not follow from office, rank or relationship¹. Earlier times the “enforcement of the human rights” was more meaningful against the State because the State regulated the human behavior as a part of maintaining law and order later, the change in the concept of State from police State to welfare State vested duty upon the State to protect the individual’s human rights. But the duty of the State to protect the individual’s human rights got worldwide acceptance after the Universal Declaration of Human Rights,1948 and this became transformed into legally binding standards after the International Covenant on Civil and Political Rights, 1966 (ICCPR) and International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR). 

As far as our Nation is concerned the  protection of human right are there in our law of the land itself and can be explicitly seen in the preamble, fundamental rights and directive principles of State policy. But after being the signatory   to the ICCPR and ICESCR Indian Parliament was conventionally bound to vote for a statute to recognize the protection of human rights and consequently passed Protection of Human Rights Act 1998. The Protection of Human Rights Act intended for the better protection of human rights by constituting National Human Rights Commission, State Human Rights Commission and Human Rights courts.

 State Human Rights Commission consists of a Chairperson and two members and other staff as prescribed by the statute. These Chairperson and members are appointed by Governor after obtaining the recommendation of a Committee consisting of the Chief Minister as chairperson, Speaker of the Legislative Assembly, Ministers in-charge of the Department of Home in that State, Leader of the Opposition in the Legislative Assembly. While dealing with the complaints the commission could act as a civil court and also could take sou moto complaint against the issues involving human rights violations. Though the commission has such powers its orders have no conclusiveness. The commission can only make recommendations to the Government on the issues involving human rights violations. Human Rights Commission being a statutory body obviously its limits are fixed there in the statute.

The validity of the orders of the Human Rights Commission was challenged before the legal forums at different times and finally it ends in the statutory limits of the commission. In N.C.Dhoundial v. Union of India & Ors.² the Honb’le Supreme Court observed that “…The Commission which is an ‘unique expert body’ is, no doubt, entrusted with a very important function of protecting the human rights, but, it is needless to point out that the Commission has no unlimited jurisdiction nor does it exercise plenary powers in derogation of the statutory limitations. The Commission, which is the creature of statute, is bound by its provisions. Its duties and functions are defined and circumscribed by the Act. Of course, as any other statutory functionary, it undoubtedly has incidental or ancillary powers to effectively exercise its jurisdiction in respect of the powers confided to it but the Commission should necessarily act within the parameters prescribed by the Act creating it and the confines of jurisdiction vested in it by the Act…”

Later a positive appreciation by the judiciary on the validity of the orders of the commission may be seen in the judgment pronounced by the Allahabad High Court in State of U.P. v. NHRC³, wherein the Hon’ble High Court held that the State is duty bound to comply with the orders of Human Right Commissions, in the absence of it being set aside. This significant observation was made by the Court in a petition by the State Government challenging the direction to it by NHRC to submit a compliance report along with a proof of payment of the compensation to next-of-kin of the deceased prisoner. The Prisoner who was an under trial had died while in prison due to some chronic disease. The Hon’ble Court observed as follows:

“The basic question is whether the use of the expression “recommend” in Section 18 (a)
can be treated by the State Government or by an authority as merely an opinion or a suggestion which can be ignored with impunity. In our view, to place such a construction on the expression “recommend” would dilute the efficacy of the Commission and defeat the statutory object underlying the constitution of such a body. An authority or a Government which is aggrieved by the order of the Commission is entitled to challenge the order. Since no appeal is provided by the Act against an order of the Commission, the power of judicial review is available when an order of the Commission is questioned. Having regard to the importance of the rule of law which is but a manifestation of the guarantee of fair treatment under Article 14 and of the basic principles of equality, it would not be possible to accept the construction that the State Government can ignore the recommendations of the Commission under Section 18 at its discretion or in its wisdom. That the Commission is not merely a body which is to render opinions which will have no sanctity or efficacy in enforcement cannot be accepted. This is evident from the provisions of clause (b) of Section 18 under which the Commission is entitled to approach the Supreme Court or the High Court for such directions, orders or writs as the Court may deem fit and necessary. Governed as we are by the rule of law and by the fundamental norms of the protection of life and liberty and human dignity under a constitutional order, it will not be open to the State Government to disregard the view of the Commission. The Commission has directed the State Government to report compliance. The State Government is at liberty to challenge the order of the Commission on merits since no appeal is provided by the Act. But it cannot in the absence of the order being set aside, modified or reviewed disregard the order at its own discretion. While a challenge to the order of the Commission is available in exercise of the power of judicial review, the State Government subject to this right is duty bound to comply with the order. Otherwise the purpose of enacting the legislation would be defeated.”

The decision of the Allahabad High Court in State of U.P. v. NHRC is an affirmative approach on the powers of the commission but it has only persuasive effect as far as the Court of law in other States  are concerned and also the Court of law is supposed to interpret law in accordance with legislative provisions. It’s upon the legislature to make amendments in the law according to the requirements of the society.  The Protection of Human Rights Act, 1998 requires radical change in its Jurisdiction, Enforceability and Cost.

Enforceability

If the substantive rights are well defined in a law but there is no procedure prescribed for implementing the rights then such law is only a tiger without nail. Likewise, even how beautifully narrated legal points are there in an order, if it lacks decree part, then it is a only a plant that can’t bear fruits. Human Rights Commission is a well constituted statutory body with enormous powers but its orders has recommendatory value only and moreover these recommendations are not binding on the respondent. This is a circumstance wherein the entire work of the commission turns out to be of no consequence. It dissipates the time and man power of the entire team of the commission especially, the highly qualified and highly paid chairperson and members, who are of in equal status of a High Court Judge. The statute may be modified so as to include a provision which make sure that the order of the commission will not be sidelined as a simple recommendation.

Jurisdiction

Human rights are those fundamental rights which are not supposed to be taken away from the individuals at any circumstances either by the State or by other individuals. It is not feasible for an individual to live with dignity in a society where there is no recognition and protection of human rights. The scope of these rights largely depends on the recognition given to this right by the legislature and the judiciary. The classification of human right violators into State and non State will deceive the basic objective of protection of human rights. The Human Rights Commission, which is constituted for the better protection of the human rights, has no jurisdiction over the private individuals and private corporations even in case of grave human rights violation. The affected party cannot approach the commission for the same or rather the commission will be legally forced to reject the complaint at prima facie. Human Rights Commission as it stands now is just a statutory body to make recommendation to the Government on human rights violation committed by the public authorities.

Cost

The object of awarding costs is to indemnify a party against the expenses incurred in successfully maintaining his rights and the compensatory cost is indeed for against the false or vexatious claims or defences. Here in the instant situation, inclusion of the provision for awarding cost is highly necessary to avoid false and vexatious claims. It will, to a large extent, assure that the complaints coming before the commission are genuine. This will also restrict encroachment of the so called human rights activist in the human rights of others and also the commission could save its valuable time and will be able to concentrate on the genuine complaints at hand.

Foot Note:

1.   Ramesh Thakur, The growing threats to Human Rights. The Hindu, December 5, 2009 city edition, Thiruvananthapuram.

2.   https://www.sci.gov.in/jonew/judis/25688.pdf visited on 13.2.2019.

Human Rights Commissions are to be Well Awakened

(By Sajeer.H, Section Officer, Law Department, Govt.Secretariat, Thiruvananthapuram)

It is common trait that torture is pervasive and a daily routine in everyday life irrespective of whether the arrests are made by the Police or the Para-military forces or the army. Rape is a common form of torture. The Police may abuse women to carry out a proxy war against their men folk. The police in many States make armed robbery carried out  by the gangs of young men and decided to blind suspects as deterrence to offenders. It is recently reported that in one of the States in India about 30 men and boys were deliberately blinded by using thick needles and acid. Forces severely attacks poor ladies in many States. The police authorities often behaved themselves as legally licensed goondas (not all of them, but some erred), for extracting confession. Most people are not ready to complaint against these injustices because of fear.

We all know the 11 directions of the Honourable Supreme Court in D.K.Basu v. State of West Bengal.These directions were stuck in every police station and in all conspicuous places of the public at large. But such guidelines were not complied by the police authorities literally. Almost all police stations become the centres of inhuman behaviour and those who use third degree acts even to poor people for extracting confession and include them in false cases. The torture may be either physical or emotional. It is very strange to realise that the police stations not yet give FIR copy to the informant free of cost in Kerala. Article 20(3) of the Constitution, Sections 330 and 331 of the Indian Penal Code and Section 29 of the Indian Police Act of 1881 clearly forbid torture. Rule 3 of the Police Code of Conduct lays down that “the Police should not usurp the functions of judiciary and sit in judgment on cases, nor should they avenge individuals and punish the accused.” Section 101 of the Indian Evidence Act clearly stipulates that the arrested person has the right to have the benefit of the presumption of innocence till his guilt is proved. But all these mandates were not abided by the authorities yet now.

Why such type of incidents has been spreading day to day. Is it because of the failure of the establishment of a stubborn body in the State to monitor and if so found, to deter these types of atrocities. Therefore the Universal Declaration of Human Rights and other covenants urged the need of establishment of Human Rights Commissions in every State who are the signatories of it.

Let us look into the present form of Human Rights Commission Act .The Protection of Human Rights Commission Act, was enacted by the Parliament in the year 1993.

The object clause of the Act says that, it is an Act to provide for the constitution of National Human Rights Commission, State Human Rights Commission in States, and Human Rights Courts for the protection of human rights and the matters connected therewith and incidental thereto. That means the object of the Act is only for establishment of Commissions and the matters connected for its establishment and incidental thereto. The narrow definition regarding human rights is given under Section 2(1)(d) of the Act. It reads that it is the rights relating to life, liberty and equality of individual guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India. That means the Act limits human rights as to the rights relating to “life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international covenants.” This definitely limits the scope of the Commission within the four walls of life, liberty, equality and dignity. No say about the Justice, Solidarity, Social responsibility and evolution of peace and non violence. Really human rights are those rights which were inherent in our nature and without which we cannot live as human beings. These rights allow us to use and develop fully our human qualities, intelligence, talents, conscience and to satisfy our spiritual needs. These rights are universal and are applicable to all persons irrespective of any discrimination and it cannot be denied under any circumstances by framing of any laws.

The present Human Rights Commission consists of high dignitaries. The National Human Rights Commission shall consist of a Chair Person who has been a Chief Justice of the Supreme Court, one member who is/has been a Judge of the Supreme Court, one member who is/has been Chief Justice of a High Court and two other members who have knowledge and practical experience in the field of human rights. Their appointments shall be governed by a body consisting of the Prime Minister as Chairperson, Speaker of House of People, Home Affairs Minister, Leader of Opposition in the House of People, Leader of Opposition in the Council of States and Deputy Chairman of the Council of States are members. While in the case of State Commissions, the Chair Person is or has been a Chief Justice of the State and such other members. Their appointments shall be made by a committee which shall consist of the Chief Minister as its Chairman and Speaker of Legislative Assembly and others. On a conjoined reading of these sections it can be seen that the appointment shall be under the hands of politics and the ruling party.

Section 12 of the Act says that the Commission shall, inquire suo motuor on a petition presented to it by a victim on any complaint of violation of human rights  or abetment thereof, or negligence in the prevention of such violation by a public servant, intervene in any proceedings involving any allegation of violation of human rights pending before a court with the approval of that court, visit any jail or other institution under the control of the State Government where persons are detained or lodged for the purpose of treatment reformation or protection, for the study of the living conditions and make recommendations thereon. On going through the powers in the first and second limp of Section 12, it is seen that it has wide and ample power to inquire any matter relating to the violation of human rights. But on going through the remaining limps it can be seen that, if it found any violation of human rights it cannot do any active/coercive action other than a recommendation to the Government. Human Rights Commission shall not have the power to punish a person who intentionally insults a Judicial Officer of the Commission or any other officer of it, but shall forward a complaint to a nearest magistrate for taking cognizance. Suppose a public servant willfully disobeying the recommendations of the Commission or insult judicial officers the commission cannot take up the matter and proceed against him. In short Human Rights Commission is silencing the complainant by accepting a complaint from them.

Section 18 of the Act says that, where an inquiry discloses violation of human rights or negligence for the prevention of such violation it may recommend to the Government to make payment of compensation or damages to the complainant or his family or to initiate proceedings against that person or to approach Supreme Court or High Court for such a direction. If we follow this section literally, it is evident that the Commission is not a mere recommendative body but a protector of human rights, having the power to approach even Supreme Court or High Court, for enforcing its recommendations. But unfortunately neither State Human Rights Commissions nor National Human Rights Commission were yet to resort such relief.

Let us examine how Human Rights Commission is dealing with  a complaint. Regulation 17 of the Kerala Human Rights (Procedure) Regulation 2001, says the Commission may dismiss in limineany complaint which are illegible, vague, anonymous, pseudonymous, trivial, frivolous, or filed after one year from the date of arising of cause of action, allegation not disclosed the involvement of a public servant, civil nature, service matters, labour or industrial disputes pending before any court or tribunal, matter is pending before any other commissions, photo copy of the petition or the matter is outside the purview of the Commission. Regulation 23 drives us to know how a complaint is dealt with and how it to be disposed of. When a complaint is received in the Commission the registry shall number the complaint and then forward the same to the assistant concerned or the section officer of that section for assigning the same to the assistant. The assistant shall not have the power to process the complaint, as what he did in bureaucracy, but to submit after docketing it, before the Registrar for placing before the Commission. The Commission after considering the complaint and all other facts either directs its investigation wing to investigate the matter or forward the same to the authorities for furnishing report before the commission within a stipulated time. If the report as aforesaid is filed, the Commission may issue notice to the complainant for appearance and for filing objections. Thereafter it either disposes of the case or makes recommendation to the Government for damages or compensation to the complainant and took appropriate action against the public servant.

Here one important thing worthy to note is that any complaints against the police officers were also investigated by the police itself. Suppose if a person is brutally manhandled in the Camp or Lockup of the police, he may approach the Commission with a Himalayan hope of protecting his human rights or to prove his innocence with all relevant documents including wound certificate. The Commission at first without giving any posting date to him sent the case to the investigation wing for report. The staffs of the investigation wing were police officials on deputation from the Home Department. They cannot be blamed if they file a report having leniency towards their colleagues. Moreover, suppose if the Commission finds that a police torture has happened and a gross human rights violation had been done, it recommend the Government under Section 18 of the Act for paying compensation or damages to the complainant. It is not mandate to the Government to comply with the recommendation of the Commission and its pros and cons. If the Government had not taken any action on the recommendations the Commission have no power to execute its recommendations. If it is so, what justice will have to be imparted by the commission to the poor persons those who had suffered injuries (either mentally or physically) from the authorities. Then what is the use of this forum.

Human Rights Commission is simply acting as an Enquiry Commission. It conduct enquiry to a particular case and then to recommend punitive measures against the offensive officers before the Government and to take up the matter. The Commission does not have power of prosecution or give a direction to Government to comply its order.

Then what will be the remedy. That is nothing but the amendment of the Protection of Human Rights Act in order to achieve more.  Almost all sections of the Act is to be amended.

Amendment of The Protection of Human Rights Act

In the Protection of Human Rights Act, Amendment of Section 18.-- ln Section 18 wherever the word recommend” or “recommendation” are used the word “Order” shall be substituted.

After Section 29 a new section, Section 29A is to be inserted

“Section 29A.-- (l)Where a public servant against whom a complaint is made fails or omits to comply with any order made by the National Human Rights Commission or a State Human Rights Commission as the case may be, such public servant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to seven years or with fine which shall not be less than two thousand rupees but which may extend to one lakh rupees, or with both;

(2) Notwithstanding anything contained in the Code of Criminal Procedure,1973 the National Human Rights Commission or State Human Rights Commission, as the case may be, shall have the power of a Chief Judicial Magistrate for the trial of offences under this Act, and on such conferment of powers, the National Human Rights Commission and the State Human Rights Commission as the case may be, on whom the powers are so conferred, shall be deemed to be a Chief Judicial Magistrate for the purpose of the Code of Criminal Procedure,1973 (2 of 1974).

All offences under this Act may be tried by the National Human Rights Commission or the State Human rights Commission, as the case may be.

Procedure.-Offences under this Act shall be cognizable, non-bailable and non compoundable.”.

The above said amendment is not exhaustive. The Parliament has to decide such a change in the Act for the protection of human rights and to give safeguard to those who suffered from torture. If the existing system of dispensing justice prevailed then there is no need of these types of forums. The National Human Rights Commission or The State Human Rights Commission, headed by high dignitaries of the judiciary will not suppose to act as the investigating agency of the State, but to act as the protector of the Constitution and the watchman of the protection of human rights.

Hence the teeth of these Commissions are to be sharpened and will be given power to enforce its orders/recommendations by resorting to provisions of the Criminal Procedure Code. Then only the people will place their faith upon democracy and on the Commissions.

Salient Features and Limitations of the Consumer Protection Bill, 2018

(By Sajeer H., Section Officer, Law Department, Government Secretariat, Trivandrum)

The Consumer Protection Bill, 2018, which was approved by the Union Cabinet, is an exhaustive change of the Consumer Protection Act 1986. But the proposed bill is not completely armed for curbing the wrongdoers and for protecting the consumer’s rights and their interest.

The object clause of the Act says that, it is an act for the establishment of authorities for timely and effective administration and settlement of consumer’s disputes and for the matters connected therewith or incidental thereto.

Clause 2 of the Bill introduces certain new definitions like Advertisement, Consumer rights, Design, Direct Selling, Director General, District Commission, E-Commerce, Electronic
Service Provider, Harm, Injury, Misleading Advertisement, Product Liability, Product Liability, Action, etc. The bill says that the consumer has the right to be protected against marketing of goods, products or services which are hazardous to life and property. The consumer has the right to be informed about the quality, quantity, potency and purity of the goods, products and services. The consumers have the right to be protected against the unfair trade practices and to be assured to access to a variety of goods and products or services. Whenever a harm or personal injury or illness or death or mental agony or emotional distress may occur, in relation to the use of any property or goods, the action can be termed as harm. When an advertisement leads to mislead the consumers relating to any product or service, such acts here comes under the purview of misleading advertisement. Here, not only the manufacturer but also the celebrities who mislead the consumers were also jointly and severally liable for action.

As compared with the Consumer Protection Act, 1986, there is no change in the definition of consumer in the new born bill, except the addition of the expression “buys any goods” “hires or avails any services”. It is to be given wider definitions as to, that it includes online and offline transactions through electronic means or by teleshopping or direct selling or multi level marketing.

One of the novel steps in the bill is that the introduction of a new powerful authority for dealing the consumer complaints in a speedy manner. Clause 10 of the Bill provides for the establishment of Central Consumer Protection Authority. It shall consist of a Chief Commissioner and such number of other commissioners which the Central Government may be prescribed. Its head quarters shall be at Delhi and shall have regional offices in any other places in India which it may decide. Like that of the Human Rights Commission, the Central Consumer Protection Authority shall have an investigation wing headed by the Director General, who shall have experience and training in the field of investigation. There shall be such number of Additional Director General, Director, Joint Directors, Dy.Director and Assistant Directors who shall be selected from among the persons who have experience in investigation. The investigation wing shall have the power to inquire the matter or investigate the same. The inquiry report or the report of investigation shall be submitted before the Central Consumer Protection Authority within the time which may be stipulated in the order. Any persons who have the complaint of violation of consumer rights or unfair trade practice or false or misleading advertisement, he can directly approach the CCPA or the District Collector with a complaint in writing or submit the same through electronic mode as may be specified.

A powerful weapon in the armoury of the CCPA is that it has the power to take up any complaint by suo motuand inquire the matter by its own. CCPA also have the power for filing complaint before the District Commission or the State Commission or National Commission for preserving consumer rights. When we move through this clause we could see that the CCPA is subordinate to District Consumer Commission.

Though the CCPA is subordinate to District Commission it can entertain complaints and conduct preliminary enquiry upon them. Thereafter if it satisfied that there exist a prima faciecase, it shall direct its investigation wing, to investigate and report the matter.

The District Collector may, upon receipt of such complaint or a reference made to him by the CCPA, to inquire the matter or investigate the same and submit his report before the CCPA either it received through it or directly.

After getting such report where the central authority is satisfied that there is sufficient evidence to show violation of consumer rights, it may pass such order for recalling of goods which are circulating in the markets or withdrawing services which are dangerous or unsafe or reimburse the price of goods to the consumers.

If CCPA is being satisfied that any advertisement is fake and is prejudicial to the interest of any consumers, it directs the Trader, Manufacturer, Endorser, Advertiser or Publisher to discontinue such advertisement or to modifying it. If any person violates the directions as foresaid said, it imposes penalty for the first offence for an amount of rupees 10 lakhs and for every subsequent contraventions imposes 50 lakhs as compensation and to prohibit such goods for a period of three years for circulating it in the market.

The central authority shall also have the power to search and seize any document, record and article etc., which may be detained or kept by the above persons, for protecting consumer rights, as per the procedure of the Cr. P.C.

Clause 24 of the bill provides that if a person aggrieved by any order passed by the central authority may prefer appeal to National Commission within 30 days from the date of receipt of the order.

Clause 28 of the bill renamed the present Consumer Disputes Redressal Forums as District Consumer Disputes Redressal Commissions. Its pecuniary jurisdiction stands extended up to One Crore from the existing limit of 20 lakhs. The pecuniary jurisdiction of the State Commissions also enhanced from One to Ten Crore instead of the earlier limit of above twenty lakhs up to one Crore.

As a gift to consumers, the bill provides a clause for Alternate Disputes Redressal System, for the speedy disposal of the pending cases herein. Clause 37 of the bill provides that at the first hearing of the complaint after its admission or at any later stage the District Commission or the State Commissions or the National Commission as the case may be refer the matter to mediation, if the parties give a written consent on that behalf to it. Pursuant to that mediation if any agreement is reached between the parties with respect to all of the issues involved in the consumer disputes, the mediator shall prepare a settlement report and forward the same to the commissions, where the case had been forwarded. The commissions, where the case stands pending, shall pass suitable orders by recording such settlement of the consumer disputes and dispose off the case within seven days.

Insertion of product liability is another feature of the bill. Product liability means the responsibility of a product manufacturer or product seller of any product to compensate any harm that may be caused to a consumer. Product liability action means filing of complaint by a person seeking compensation from the erred seller or manufacturer or Product Service Provider, as the case may be. All the above persons would have been liable, if it proved that product contains manufacturing defects or does not confirm express warranty or faulty service. Product Liability Action cannot be entertained if the product is modified or alters or misused at any point of time after sale.

The proposed bill has strong protective arms over the consumers by way of enhanced penalties against the wrong doers. If any person is found guilty of adulteration and thereby caused the death of the consumer the offender shall be liable for imprisonment for a term which may extent up to seven years and fine of rupees 10 lakhs.

Limitations

Though the new born bill provides perfect accommodation for the consumers and deters the wrong doers, it has some limitations.

First of all the process of mediation as envisaged in the bill is seen defective. The mediators only have the duty to record the settlement between the parties who were present before him and sent the same to the commissions which referred the matter. No mediators have the power to pass an award as part of that settlement as what in Section 21
of the Legal Services Authority Act, 1987. Wherein every such award shall be treated as decree of a civil court and the court fees if any remitted can be refunded in the manner as provided in the Court Fees Act 1870. Such Award shall be final and binding on all parties to the dispute. No appeal shall ordinary lie over it. But here no such clause. The report of the mediators can be retracted by the parties at any time before the matter is taken for orders by the commissions. A written authority of both sides is needed for a reference to mediation, but no such formality can be seen under the Legal Services Authority Act. No judicial member is appointed for the mediation proceedings is another drawback of the bill. If the enactment is for the speedy disposal of consumer complaints and for protecting their rights and interest then the Legislature ought to have given application of the provisions of Legal Services Authority Act, in the new bill.

The Consumer protection authority has the power to entertain a matter either on a complaint or on suo motu. But no such suo motupower is to be given to any of the commissions in the court array. On going through the bill in detail it can be seen that the authority have wider power than that of the Consumer Commissions, though it is subordinate to it. The commissions will remain in four corners of the court room and is set in to motion only on filing of a complaint by the consumer. But as far as other commissions like State Human Rights Commissions, Child Rights Commission etc. have the power to take up a matter in to file on suo motu.

The bill is remaining silent of the fact that whether a consumer can file a petition simultaneously in the Consumer Commission and the CCPA. If so whether both of it continues warranting different judgment/orders or any stay of suit can be possible to.

No exclusive jurisdiction and original jurisdictions were specified in the bill. Though the online transactions were included in the bill no territorial jurisdiction is to be fixed in the bill.

The bill provides complaint can be filed electronically. The admissibility of the complaint shall be ordinarily being decided within 21 days from the date of receipt of such complaint. If a decision on that behalf is not taken within 21 days, then the complaint shall deemed be taken as admitted. Here the hindrance is that, without hearing the complainant the Commissions shall be bound to take up the matter in the open court and take up a decision on it.

Another drawback is that no inherent power is to be given to the commissions (Like Section 151 of C.P.C.) for taking up any action or procedure by its own. Therefore, If any complaint is dismissed for default no restoration is possible in the new bill and no review can be entertained.

Though the bill has such types of limitations, introduction of certain new clauses are positive new changes for the existing consumer protection laws in the country.

Dissent Note on “Sreeja v. Commissioner of Police” Reported in
2018 (4) KLT 644

(By H. Sajeer, Section Officer, Law Department, Government Secretariat, Trivandrum)

A custom once disallowed cannot be again brought forward. This is the meaning of the maxim “Consuetudo semel reprobate non protest amplius induci”. Certain customs prevailed in the society are for the betterment of the people at large. Whenever laws began to overreach, then it may cause the destruction of society and invites untold miseries and diseases.

The facts in the title case was that, a lady aged 40 years, is raising an allegation that her ‘lesbian partner’, Ms. Aruna, aged 24 years is under illegal confinement of her parents, against her free will. She seeks a writ of Habeas Corpus for commanding for the production of the corpus of the alleged detenue and to set her at liberty. She alleged that the alleged detenue is in close relationship with her and that they are unable to separate. They intended to live together as life partners. She also alleged that on 13.08.2018 the detenue left her parental home and joined with her. Then the parents had lodged a case before the police authorities about the missing of the alleged detenue. The police authorities registered an F.I.R, under Section 57 of the Kerala Police Act, 2011. The police had taken the alleged detenue into custody and produced her before the Judicial First Class Magistrate-II, Neyyattinkara, on 14.08.2018. The learned Magistrate had set the alleged detenue at liberty. But, it is alleged that the parents of the alleged detenue forcibly taken her into custody after assaulting the petitioner, with respect to which the petitioner had lodged another complaint in the same police station. The alleged detenue had informed the petitioner that her parents had admitted her in the Government Mental Hospital at Peroorkada. When the petitioner met the alleged detenue in the said hospital, she was ready and willing to come along with the petitioner. But the hospital authorities insisted for production of a court order for her release and for sending her along with the petitioner. Alleging that the parents are keeping the alleged detenue under illegal confinement at the Mental Hospital, the petitioner approached for a writ of habeas corpus.

On receipt of notice, the parents appeared before the Honb’le High Court and produced the alleged detenue. When the Honb’le court interacted, the alleged detenue said that she had completed the age of 23 years and is a Post Graduate in Economics and undergoing coaching for P.S.C test. She conceded about her relationship with the petitioner and about their decision to live together. She expressed her strong desire to go along with petitioner to her house at West Kallada, Kollam. She is not prepared to go back to her parental home along with her parents. According to the alleged detenue, she is being illegally detained by her parents and was taken to the Mental Hospital, despite the fact that she is in perfect mental condition, by giving much reliance to the decision in Navtej Singh Johar v. Union of India(2018 (4) KLT 1 (SC) the Honourable Supreme Court held that the live in relationship between the petitioner and the alleged detenue will any manner offend any provisions of law or it will become a crime in any manner. Hence the alleged detenue is set at liberty to go along with the petitioner, as desired by her.

When we travel along with the case in hand we could realise that emotions and feelings have a limited role in the administration of justice. But an undisputed fact in the world is that father and the mother are the only visible gods one’s have. Nothing can equate with the security, affection, care and protection which we get from them. The parents are the most dependable persons in the home. They share everything for their sons and daughters. They seldom expect anything from them except their better future. It is their right to lead their sons and daughters in to a right path, whenever they mislead, and then they act as torch bearers for leading them to a right aim. When a member of the family began to live in a manner against the nature of law (homosexual-gay-lesbian relationship) it is the duty of the parents to correct them or to prefer a correctional treatment, not only for themselves but also for the other members of the family for saving it from the wrath and abuse of the public at large.

Ms.Aruna, was an educated young lady, desired to live with a lady for lesbian relationship and disappeared from home on that purpose. The parents of her have no other way than to file a petition before the police authorities. They had taken her and produced before the magistrate court. After getting the order of the magistrate she was taken by her parents. Because of her indifferent behaviour the parents admitted her in to the mental hospital, for psychiatric treatment as advised by the doctor. Being perplexed that if the alleged detenue may change her mind on treatment, the petitioner utilises the opportunity of getting the benefit of habeas corpus writ and with an unclean hands, approached the honourable High Court with a prayer that her lesbian partner was in the illegal confinement of parents in the mental hospital. When the alleged detenue shows certain types of behavioural changes, her parents had consulted a clinical psychologist and a Psychiatrist for correctional treatment. The lady was admitted in the hospital only because of the advice of a doctor and the admission of the lady in the mental hospital for treatment does not mean that she was a mental patient or she was in the illegal confinement of her parents. Once a person is not in illegal confinement then the writ of habeas corpus cannot be taken into. Therefore, the petitioner has no locus standifor seeking the benefit of a Writ Petition in the nature of habeas corpus for obtaining a relief for seeking the assistance of a lesbian partner. The case law not discussed that aspect in limini.

One more thing is to be noted that, the honourable court had relied certain judgments while deciding this case. Let us go along with such cases one by one. In Muhammed Riyad v. State Police Chief(2018 (2) KLT 914) the honourable High Court permitted the parties to live in a live in relationship outside the marital bond, though the parties were incompetent to enter in to marriage contract. In that case, Rifana Riyad aged 19 years and a minor Hanize aged 18 years were permitted to lead a live in relationship till they attained majority. In Nandakumar and Anr. v. State of Kerala(2018 (2) KLT 783 (SC)) the Honourable Court permitted Nandakumar, (aged less than 21 years) and Thushara (aged 19 years) to lead a live in relationship. In Shafin Jahan v. Asokan(2018 (2) KLT 571 (SC)) also the honourable court took such a view. In all the above cases parties were belonging to different sex and their relationships are no way affected by the law of nature. But in the instant case, the petitioner is a lesbian lady and the alleged detenue was a prey which accidently and innocently fell in to the trap of her lust.

For the time being, one more aspect is to be taken for worthy consideration. The crux of the judgment in Navtej Singh Johar v. Union of India(2018 (4) KLT 1 (SC)) is that it approves the authority of transgender sex and severed it from the deterrence of Section 377 of the Indian Penal Code.

The act of the consenting adults in any case is clearly against the nature and a deviation from conventional sexual morality as it envisages in Section 377 IPC. If the act of such a nature is permissible that will be the destruction of the sexual morality which was concreted from time immemorial in the society. Statistics show that the rate of suicide amount of the lesbian, gay, bisexual or transgender youths have alarmingly increased in India. India having an “Arsha Bharat Culture” shows Indian lesbians were twice as likely to attempt suicide as heterosexual women. In general, suicide attempts by gay men are more severe than those of their heterosexual counterparts. Many lesbian, gay, bisexual, and transgender youth leave their home because of stresses in the family environment. Many foster homes will not accept openly gay, lesbian, bisexual, or transgender youth because of homophobia and fear of predation on other children in the home. About 6% of all runaway youth identify themselves as gay or lesbian. Many lesbian, gay, bisexual, and transgender youth have low self-esteem and resort to prostitution to survive and to escape physical, sexual, and emotional abuse in their homes and schools. On the street, they are victims of rape, exploitation, drug misuse, and at risk of contracting HIV. Recent evidence suggests that it is possible to transmit diseases from woman to woman through sexual activity.

Summing up, if judiciary permits the lesbians-gay-homosexuals to lead a live in relationships, then the same will become settled. The result of which will be that, the parties may later either commit suicide or affected with mental stress. The only solution for this is for giving better counselling and psychiatric treatment to them. If anyone is put for correctional treatment, that may not be treated as illegal confinement. Therefore, Sreeja’s case as above said is not a good law.