Moosa Pallikkathodi Erathali vs State Of Kerala

Sathish Ninan, J

Order of disqualification of the petitioner to be a member of the Managing Committee of the sixth respondent society, for violation of Rule 44(1)(e) of the Co-operative Societies Rules, is under challenge in this writ petition.

Rule 44(1)(e) reads thus:-

"44. Disqualification of membership of committee. -(1) No member of the society shall be eligible for being elected, or appointed as a member of the committee of the society under S.28 if he:-

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(e) is employed otherwise than in an honorary capacity as legal adviser or as legal practitioner on behalf of the society or against the society which is a member of the former society."

As per Ext.P6 order, the Joint Registrar found that, on the date of election, the petitioner was employed as a legal advisor of the 6th respondent Society. The appeal preferred by the petitioner before the Government resulted in dismissal as per Ext.P10 order.

As on the date of conduct of election, was the petitioner working as a legal advisor of the sixth respondent Society or not, is the short question for determination.

Heard learned learned Senior Counsel Sri.S.Sreekumar on behalf of the petitioner, Smt.C.S.Sheeja, the learned Senior Government Pleader, Sri.Lakshmi Narayan, for the 5th respondent, Sri.K.M.Firoz, P.C.Muhammed Noushiq and Sri.N.Abdul Kareem for the 6th respondent, and Sri.P.P.Jacob, the learned counsel for the 7th respondent.

As per resolution No.9 dated 22.04.2005 of the Administrative Committee of the Society, the petitioner was included in the panel of legal advisors of the Society. Ext.P1 is the election notification dated 05.10.2019. As per Ext.P1 notification, the last date for submission of nomination was 13.11.2019. According to the petitioner, on 12.11.2019 he submitted Ext.P2 to the Society expressing his unwillingness to continue as a legal advisor. He won in the election and is the President of the Society. The 7th respondent who is a member of the Society filed a complaint on 02.12.2019 alleging that, even as on the date of conduct of election the petitioner was working as a legal advisor of the Society.

On the complaint, the Assistant Registrar inspected the Society and submitted a report before the Joint Registrar. Based on the report, hearing was conducted by the Joint Registrar on 10.01.2020. The Joint Registrar passed Ext.P6 order holding that, even as on the date of conduct of election, the petitioner was the legal advisor of the Society and thus violated Rule 44(1)(e). Though the petitioner challenged Ext.P6 order before the Government, he was unsuccessful.

To conclude that the petitioner was working as a legal advisor of the Society even as on the date of election, the authorities mainly entered into two findings; firstly, the resignation submitted by the petitioner was not accepted by the Managing Committee of the Society and therefore it cannot be held that his services had ceased; and secondly, even subsequent to the conduct of election, legal opinions were given by the petitioner to the Society for grant of loan.

Ext.P2 is the letter of resignation of the petitioner. There has been no decision by the Committee accepting such resignation. The learned Senior Counsel appearing on behalf of the petitioner would contend that, the status of the petitioner in so far as the Society is concerned was only that of a legal advisor, which could always be terminated by either of the parties by a mere communication of the intention to do so. On Ext.P2 communication having been given to the Society expressing his unwillingness to provide his services any further, he cannot thereafter be said to be the legal advisor of the Society, submits the learned counsel. The learned counsel appearing for the 7th respondent-complainant would on the other hand contend that, the resignation of the petitioner is to be accepted by the Managing Committee in terms of Rule 38 of the Co-operative Societies Rules, and till it is accepted, the status of the petitioner as a legal advisor, would continue. Admittedly, there is no procedure prescribed under the Co-operative Societies Act or Rules regarding resignation of a legal advisor. It being in the nature of a contract for personal professional service, it would be open for the petitioner to express his unwillingness to render his services when he chooses. Even if the Society decides not to accept it, he cannot be compelled to render the service. Therefore, there is no substance in the contention that, unless the resignation (as it is termed) is accepted by the Committee he continues as its legal advisor. I am unable to subscribe to the finding of the authorities that, since the resignation was yet to be accepted by the Committee the petitioner continued as the legal advisor.

Now, on the facts, the authorities have entered a finding that even subsequent to the conduct of election, the petitioner has given legal opinions to the Bank and hence he continued as its legal advisor. They have relied on a legal opinion dated 22.11.2019 stated to have been given by the petitioner to one Appukuttan for the purpose of availing a loan from the Bank. The genuineness of the legal opinion is disputed by the petitioner. In the reply affidavit filed by the petitioner before this Court, it has been stated thus:-

"It is discernible that previous legal opinion given by the petitioner was misused for taking photocopy of the same after covering it legal opinion but with the name in the letter pad and signature and created Ext.R3(b). The handwriting in Ext.R3(b) is not that of the petitioner."

According to the learned counsel for the petitioner, even a copy of the alleged legal opinion was not furnished to the petitioner by the authorities. However, as I will immediately deal with, the circumstances seem to point otherwise. Ext.P3 is the notice calling upon the petitioner for hearing on the allegation of violation of Rule 44(1)(e). On the date fixed viz. 01.01.2020, the petitioner appeared and submitted Ext.P4 request wherein it is stated that the report of the Assistant Registrar and the Annexures have not been received by him. The proceedings were adjourned. It is thereafter that the petitioner submitted Ext.P5 reply/objections dated 10.01.2020. Pertinently, in Ext.P5 the petitioner does not have any complaint that the documents were not made available to him. Therefore, the reasonable conclusion would be that, on the request made by the petitioner as per Ext.P4, the relevant records were made available to him and thereafter he has submitted Ext.P5 objections.

From Ext.P6 order passed by the Joint Registrar it is evident that, the petitioner did not raise any objections as against the genuineness of the legal opinion dated 22.11.2019 stated to have been given to Appukuttan by him. It does not end there; challenging the order, the petitioner preferred appeal before the Government. Significantly, even the memorandum of appeal does not contain any averment or ground challenging the legal opinion in question. A copy of the appeal memorandum is marked as Ext.P7 in the writ petition. There is no case in the appeal memorandum that the petitioner has not given the legal opinion in question, nor did he challenge the genuineness of the document. Here it is to be remembered that, the petitioner is none other than an Advocate by profession. If the authorities had relied on a legal opinion which was not authored by him, definitely that would have been a specific ground in the appeal. It is true that, pending the appeal, on 23.11.2020, the petitioner filed an additional objection in the appeal as Ext.P12 wherein he has stated that he has not given any legal opinion on 22.11.2019 to Sri.Appukuttan. However, that could only be seen as an afterthought.

In the above background, the contention of the petitioner regarding submission of letter of resignation to the Society on 12.11.2019 is to be considered. According to the petitioner, on 12.11.2019 he submitted Ext.P2 to the accountant of the Society since at that time the Secretary was not in office. The said letter (Ext.P2) is stated to have been handed over by the accountant to the Secretary only on 04.12.2019. Here it is to be noticed that the 7th respondent had filed complaint against the petitioner on 02.12.2019. It is immediately after the lodging of the complaint the accountant has handed over Ext.P2 letter of resignation to the Secretary claiming that it was received on 12.11.2019 and that by an oversight he omitted to hand over the same to the Secretary. When such an important document has been handed over to an Accountant, the petitioner who knows the consequence of not submitting the said communication would necessarily have followed up the matter and ensured that the communication reaches the Secretary on the same day itself or at the earliest. The statement that, the Accountant by an oversight omitted to hand it over to the Secretary till 04.12.2019, is hard to accept on the circumstances noticed above.

Yet another important circumstance is that, in the course of the proceedings, Sri.Unneen C.T., the person who was holding the office as Secretary at the relevant time, gave statement before the Joint Registrar. The statement has two parts. In the first part he said that the petitioner had submitted his resignation on 12.11.2019 to the accountant to be entrusted to the secretary and that due to an oversight the accountant omitted to hand over the same to him and was handed over only on 04.12.2019. He also mentioned about the declaration submitted before him by the accountant to the above effect. In the second part of his statement he has categorically stated that the petitioner had given a legal opinion dated 22.11.2019 to one Appukuttan for the purpose of availing a loan. The petitioner has no allegation that the said Unneen C.T. has an axe to grind against him which prompted him to make such a statement. That apart, the first part of the statement is in support of the petitioner's claim to some extent. In the circumstances, I have no reason to disbelieve the statement of Sri.Unneen, the then Secretary that, the petitioner had given legal opinion to the Bank after the election.

On the above discussions, it could only be concluded that the finding of the authorities that the petitioner was continuing as a Legal Advisor of the Society even as on the date of election is justified.

The learned Senior Counsel for the petitioner raised an argument that, the legal opinion dated 22.11.2019 referred to by the authorities is a mere photostat copy which could not have been relied upon. Only a copy certified in terms of Rule 32 read with Section 103 could have been accepted, submits the senior learned counsel. The copy of a document certified under Rule 32 is by virtue of Section 103 elevated to the status of primary evidence. The legal opinion in question is a document collected by the Assistant Registrar in the course of inspection on the complaint of the Additional 4th respondent. The secondary evidence was admitted and relied on without any objection. It having been admitted, its admissibility cannot be challenged at this stage since the objection would only amount to an objection regarding the satisfaction of the conditions for admission of secondary evidence. Of course, mere admission of a document is not proof of it. Here, the content of the document as such is not of much relevance; the only question is, did the petitioner give legal opinion after the election. As found by me earlier, independent of the disputed document there are sufficient circumstances to find that the petitioner continued as legal advisor of the Bank even after the election, thus attracting Rule 44(1)(e). Therefore, the said contention is of no avail to the petitioner.

No grounds are made out to interfere with the conclusion arrived at by the authorities. The writ petition fails and is dismissed.