Mahesh Patil vs The Joint Registrar of Co-operative Society Gulbarga and Others

L. Narayana Swamy, J.—The petitioner is functioning as a President of Taluk Agriculture Producers Co-operative Marketing Society, Sedam, Gulbarga District (hereinafter referred as ''TAPCMS'' for short) and in this petition he has challenged order Annexure-F dated 27th January 2014 passed by the first Respondent; and Order Annexure-D dated 7th October 2013 passed by the second respondent.

The learned counsel appearing for the petitioner submits that while the petitioner was functioning as President of TAPCMS, Sedam, the respondents found some financial irregularities and a complaint was made under Section 29C of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as ''the Act'' for short). Notice was issued and was served on the petitioner on 30th September 2013. On the same date, he made an application to provide him an opportunity and that was objected by the complainant and on considering the objections, the case of the petitioner for adjournment was rejected and the matter was posted for orders on 7th October 2013. The respondent, by invoking provisions of Sections 29C(1)(l) and 29C(b)(c) and (d) of the Act, has disqualified the petitioner for five years from the post and also not to contest for any co-operative proceedings for full term. This was challenged before the Appellate authority under Section 106 of the Act and the Appellate Authority also confirmed the order passed by the Deputy Registrar of Co-operative Societies. The petitioner challenged the order on the ground of contravention Section 29C(7) of the Act before the first respondent-Joint Director of Co-operative Societies and submitted that the impugned order results in denial of principles of natural justice and also contrary to provisions of the Act rejected the appeal thereby confirming the order of the second respondent-Deputy Registrar of Cooperative Societies. Hence, the learned counsel for the petitioner seeks quashing of Orders Annexure-F dated 27th January 2014 and Annexure-D dated 7th October 2013 passed respectively by the first and second respondents.

The learned Government Advocate submits to dismiss these petitions. He submits that reasonable opportunity, which is sufficient, was provided to the petitioner and the petitioner was issued with notice. Notice was issued for serious financial irregularities to a tune of Rs. 3.50 crore and the petitioner appeared before the authority and the competent authority, after examining and verifying the case of the complaint, has convicted the petitioner for the offence under Section 29C of the Act. The second opportunity was also provided to the petitioner i.e. to prefer an appeal before the appellate authority, that is to say that sufficient opportunity was provided to the petitioner both before the original authority as well as appellate authority. Hence, the learned Government Advocate submits to dismiss the petitions.

The learned counsel appearing for respondents No. 6 to 9 also submits to dismiss the petitions. He submits that the petitioner was duly served by providing an opportunity and hence there is no deviation in compliance of provisions of law. Secondly, the petitioner himself has preferred an appeal and all his grounds urged therein have been considered by the appellate authority and hence provisions of the Act have been substantively complied with by providing ample opportunity to the petitioner.

The learned counsel appearing for the fourth respondent also submits to dismiss the petitions and he adopts the submissions made by the learned Government Advocate and the learned counsel appearing for respondents No. 6 to 9.

Heard the learned counsel appearing for the parties. A case was registered under Section 29C of the Act. On noticing financial irregularities, a case has to be lodged before the competent authority and accordingly it was registered and notice was issued to the petitioner.

Sub-clause (7) of Section 29C of the Act provides that Registrar shall have to give reasonable opportunity of being heard. Proviso to sub-clause (8) of Section 29C of the Act provides that no such orders shall be made under this sub-clause unless a reasonable opportunity of hearing is given to the person against whom the order is to be made. By reading of sub-clauses (7) and (8) of Section 29C of the Act and also proviso to sub-clause (8) of Section 29C, it clarifies the position that no person shall be deprived of an opportunity unless providing a reasonable opportunity of being heard. The intent of the Legislation to disqualify a person means that it has to be done only after providing a reasonable opportunity of being heard. In the light of the said provision, the proceedings before the Registrar of Co-operative Societies in case No. 1/2013-14 as is recorded in the order sheet, disclose that acknowledgement was returned on 29th September 2013 and hence the case was adjourned to 30th September 2013 and on the said date the petitioner, after acknowledging the notice, appeared before the Registrar and by making an application he sought for time to present his case. However, the same has been rejected on very same day and the case was decided on 7th October 2013. These two orders available in the order sheet itself are sufficient to decide the case of the petitioner. ''Reasonable opportunity'', varies from case to case. In the instant case, reasonable opportunity means and includes providing sufficient or reasonable time to prepare and represent the case. Preparation and representation of case, itself is not sufficient, since the proviso to sub-clause (8) of Section 29C of the Act also provides for reasonable opportunity of being heard. The words ''being heard'' is to be understood in its conceptual manner, i.e. a person should be allowed to make a written reply, to file statement of objections and also, if he makes a request to make oral submission, he is to be permitted. These opportunities, which are the intent of Legislation, have been curtailed by the Joint Registrar of Co-operative Societies and hence the impugned action is contrary to the provisions of the Act and also is violation of principles of natural justice.

The original authority has deprived the reasonable opportunity and the petitioner was permitted to prefer an appeal. Accordingly, he preferred an appeal. The Appellate Authority has considered his case, and again rejected it. The appellate authority, in his order, has devoted much of his time only in considering the case of the complainant about the irregularity and financial misconduct said to have been committed by the petitioner. There may be a prima facie case for the respondents. But, that itself is insufficient to rope-in a person for the offence. Reasonable opportunity is to be provided by the original authority and the appellate authority has to look as to whether the original authority has provided such an opportunity of being heard. When it is to be held that the original authority''s order itself is arbitrary and is in violation of provisions of Section 29C(7) and (8) of the Act and also is in violation of principles of natural justice, consequently, the order of the Appellate Authority also results to come to the same conclusion. Hence, I pass the following:

ORDER

"(i) Writ petitions are allowed.

(ii) The impugned orders Annexure-F dated 27th January 2014 passed by the first respondent and Annexure-D dated 7th October 2013 passed by the second respondent are set aside.

(iii) The complaint No. 1/2013-14 is restored to file. The petitioner is directed to appear before the second respondent on Monday the 16th February 2015 without waiting for any notice in this regard. It is also made clear that the petitioner shall not seek any adjournment and to appear on that day with full materials and defence, if any, on his behalf.

(iv) The second respondent is directed to consider and pass appropriate orders strictly in accordance with law."