You may get technical advice on the administration and working of Co-operative Institutions from here. Common issues and personal grievances may be discussed.
സഹകരണ സ്ഥാപനങ്ങളുടെ പൊതുഭരണം സംബന്ധിച്ച വിഷയങ്ങളും വ്യക്തിപരമായ പ്രശ്നങ്ങളും നമുക്കിവിടെ ചർച്ച ചെയ്യാം
Thursday 8 December 2011
CIRCULARS OF RCS 1986
PLEASE NOTE THAT THESE CIRCULARS ARE NOT CORRECTLY PROOFREAD WITH ORIGINALS. SO KINDLY MAKE SURE THAT THEY MATCH WITH THE ORIGINAL CIRCULARS/ ORDERS. IF THERE IS ANY FONT PROBLEM PLEASE INSTAL ML-TT-KARTHIKA FONTS. FONT PROBLEMS UPTO A LEVEL CAN BE OVERCOME BY COPYING AND PASTING THE POST IN A WORD DOCUMENT. IF A LETTER NDA IS MISSING,INSTAL MLTTKARTHIKA FONT AND TYPE ALT+0173 FOR NDA.
Office of the Registrar of Co-operative Societies,
CIRCULAR No. 17/86
Sub: Financial assistance sanctioned to Co-operative Societies by way of loan execution of mortgage deeds-instructions issued.
The Committee on Public Accounts 1984-85, in their 117 Report, while dealing with the audit paragraphs connected with Co-operative Department have made the following observations:-
“The Committee are of the opinion that the officers responsible for the wrong drafting of the mortgage deed should be severally censured. The Department should issue strict instructions to its officers to be vigilant while executing such deeds in future.”
The Committee have made the above observations in their recommendation relating to a case of wrong drafting of the mortgage deeds executed by a few marketing Co-operatives in respect of loans sanctioned under the refinance scheme sponsored by NCDC for establishing agricultural processing units. As per the rules governing the payment, of assistance under the scheme, the loans would bear interest at the rates at which interest was payable to the NCDC by State Government. However, in the mortgage deed form appended to the rules, the effective rate of interest and higher rate of interest on defaulted instalments were specified as 7.5% and 10% per annum respectively. The rates of interest mentioned in the form of mortgage deed were copied verbatim in the mortgage deeds in question executed by the societies even though the rates of interest have been revised at the time when the loans were sanctioned to the societies. The officers concerned did not properly scrutinise the documents and hence the mistake crept in the mortgage deeds. The Departmental Officers should be very careful in executing the mortgage deeds so-as-to ensure that there will be no error or mistake in the deed which will result in short recovery of dues and also may leave room for any dispute between the executants later. In case of any doubt, about the rate of interest to be charged, they should consult the Joint Registrar concerned or the Registrar of Co-op: Societies before the deed is executed. If on any account, Government have sustained any loss due to the wrong drafting of the mortgage deed, the loss sustained by Government will be realised from the officer/officers concerned.
Sub: Relaxation of qualification number Rule 185 (2) read with Rule 186 and 200 of the Rules under section 80 of the Kerala Co-operative Societies Act 1969 - Applicability- decision of the Hon. High Court in W. A. No. 309 of 1985 –instructions issued.
Read: 1. This Office Circular No. 22/84 dated 5-5-84.
2. Judgement dated 15-10-85 of the Division Bench of the High Court in W.A. No. 309 of 1985.
In the Circular read as item 1 above it was clarified that the employees who were in service as on 31-12-1973 will be eligible for promotion to higher posts if they are duly qualified for promotion to higher posts on the basis of the qualifications prescribed in the approved service regulations just before the coming into force of the rules under section 80 of the Kerala Co-operative Societies Act i.e. as on 31-12-73 in respect of that society. So also the employees who have been appointed on or after 1-1-74 will be governed by Rule 186 of the Kerala Co-operative Societies Rules for the purpose of promotion. It was also clarified therein that in the case of employees who are not qualified as per approved service regulations of the societies in force as on 31-12-73 or as per rule 186 of the Kerala Co-operative Societies Rules, Rule 185 (2) of the said Rule shall apply for the purpose of their promotions.
Subsequently the Hon’ble High Court of Kerala, in K. K. Chacko and another Vs. N. V. Joseph and others (1985 KLJ 970) in the Judgement dated 15-10-85 of the division bench in W.A. No. 309/85 of O.P. No. 5803/81 has held as follows:
“Sub Rule (2) of Rule 185 confers power on the Registrar to give approval for relaxation from the qualifications mentioned under the Rules. The Qualifications under the Rules are specified under Rule 186. The power of relaxation referred to in sub rule (2) of Rule 185 relates to the qualifications specified under the Rules. However, an employee who has been in the service of the society since prior to the date on which the Rules came into force and who was qualified to hold the post which he held or any promotional post in terms of the bye-laws is well protected by Rules 185, 186 and 200, even if he lacks the qualifications prescribed under Rule 186.
The power to relax mentioned under sub rule (2) of Rule 185 is, as stated above, a power with reference to the qualifications prescribed under Rule 186 and not with reference to the bye-laws. If a person does not have the requisite qualifications in terms of Rule 186, he may be granted relaxation from those qualifications by recourse to the power under Rule 185 (2). That is specially meant for the protection of persons who came into the service of the society after the rules came into force, but those who have been in its service since prior to the coming into force of the rules are sufficiently well protected by reason of Note (1) to Rule 186 as well as Rule 200. The power of the Registrar under the bye-laws is necessarily confined within the bounds of the Rules, unless the power had been exercised in terms of the bye-laws before the Rules came into force. If by such valid exercise of power a right had been conferred upon the employee, such right remains protected by reason of Rule 200 and other provisions”.
The Judgement of the division bench has made it clear that sub rule (2) of Rule 185 confers power on the Registrar to give approval for relaxation of qualifications prescribed under Rule 186 and not with reference to the bye-laws. Rule 200 and Note (I) to Rule 186 of the Kerala Co-operative Societies Rules protect only the acquired rights. The Registrar has power to grant relaxation in terms of the bye-laws only so long as the bye-laws operated in full force prior to the coming into force of the statutory Rules.
In view of the above the following clarifications are issued in partial modification of the Circular read as item 1 above:-
(1) The clarification issued under item 3 in the Circular read as item 1 above stands deleted.
(2) Sub Rule (2) of Rule 185 confers power on the Registrar to give approval of relaxation of qualifications prescribed under rule 186 of the Kerala Co-operative Societies Rules and not with reference to the bye-laws. Hence Rule 185 (2) shall apply and can be invoked only in the case of persons not having the requisite qualifications in terms of Rule 186 and it cannot be invoked in the case of employees who were in service prior to coming into force of the Rules and not qualified for promotion as per the approved service regulations of the society which were then in existence i.e. as on 31-12-73.
(3) The protection envisaged under Rule 200 and Note (1) to Rule 186 is only in respect of such employees who have been in the service of a society since prior to coming into force of the Rules. They will protect only acquired rights of such employees. Therefore, those provisions would apply to those who obtained relaxation of qualifications in terms of the bye-laws of that society even before the commencement of the rules in force. If such a right had been acquired for promotion by obtaining the relaxation of qualification in terms of the bye-laws before the Rules came into force, that right would be protected by reasons of Note (1) to Rule 186 and Rule 200.
(4) The Registrar of Co-operative Societies has power to grant relaxation in terms of the bye-laws only so long as the bye-laws operated in full force prior to the coming into force of the statutory Rules.
In short, the effect of the judgement is as follows:
(a) Relaxation from the prescribed qualifications, under Rule 185 (2) is permissible only in the case of those employees who were appointed on or after 1-1-74.
(b) Employees in service as on 31-12-73 and who were qualified to the post they held, according to the bye-laws of the society which were then in existence, can continue in the post by virtue of the protection given under note (1) to rule 186, even if they lack the qualifications prescribed under rule 186 of the Kerala Co-operative Societies Rules.
(c) Employees who were in service as on 31-12-73 will be eligible for protection to higher posts if they were qualified for promotion to higher posts on the basis of the qualifications prescribed in the service regulations of the society then in force i.e. as on 31-12-73, even though they are not having the qualifications prescribed under Rule 186 and
(d) Even if the Service regulations (Bye-laws) in force as on 31-12-73 permitted the relaxation of the qualifications by the Registrar, this power cannot be invoked after the coming into force of rules under section 80 of the Kerala Co-operative Societies Act.
Sub: Liquidation of Co-operative Societies-Deciding questions of priority arising between claimants by the Liquidator under section 73 (1), (2), (3) of Kerala Co-operative Societies Act 1969- Properties of liquidated societies liable for first charge for the debt due to Government-Instructions issued.
As per section 73 (2) of the Kerala Co-operative Societies Act, 1969, the powers of a Liquidator appointed to wind up the affairs of a society shall be subject to the control of the Registrar of Co-operative Societies. According to Section 73 (2) (c) of the Kerala Co-operative Societies Act, 1969, a Liquidator appointed under section 72 of the said act, shall have powers to investigate all claims against the society and subject to the provisions of the Act, to decide questions of priority arising between claimants.
While deciding questions of priority arising between claimants; the liquidator of a Co-operative Society, has to give priority to the claim of Government and that the properties of a liquidated society should be a first charge for a debt due to government. It has been clarified by Government that any amount to be written off against Government due could be done only after obtaining the approval of the authority competent to sanction write off of the irrecoverable loss of Government.
Rule 61 (2) of the Kerala Co-operative Societies Rules, 1969, lays down that on the winding up of a society the reserve fund together with other funds constituted by the society in accordance with its bye-laws shall be applied by the liquidator to discharge such liabilities of the society; as may remain undischarged out of the assets of the society. It is also prescribed that the debt due to the Government shall be given top priority while discharging such liabilities. The liquidators will strictly adhere to these rules in the course of Liquidation of societies. They will be personally liable for any loss caused to Government on account of deviation from the above rules. The Joint Registrars will also bring the following to the notice of all the subordinate officers.
(a) While deciding questions of priority arising between claimants under section 73 (2) (c) of Kerala Co-operative Societies Act, 1969, the claim of Government shall be given first priority on the assets of the society.
(b) If it is found that the assets of the society prove to be not recoverable and consequently the claim of Government in respect of any debt due to Government can not be met from out of the assets and Reserve Fund of the society, the liquidator shall obtain prior approval of Government, through the Registrar of Co-operative Societies, for writing off the debt due to Government. Only after obtaining the approval of Government, the liquidator can finalise the winding up of the affairs of the society.
Office of the Registrar of Co-operative Societies,
CIRCULAR No. 54/86
Sub: Scheduled Castes and Scheduled Tribes candidates-Appointment in Co-operative Institutions-Maintenance of list of qualified persons.
The State Government have recently issued instructions in the form of an ordinance to the effect that 10% of the total vacancies arising in Co-operative institutions should be reserved to candidates belonging to Scheduled Castes/Scheduled Tribes Communities. Despite the above instructions, it has been observed that even now proper representation is not being received by the qualified candidates belonging to the communities said above in the appointments in Co-operative institutions. Since the social as well as financial conditions of the members belonging to Scheduled Castes/Scheduled Tribes communities have not improved to the desired extent, it is only just and proper to ensure them due representation in the appointments in Co-operative institutions also as in the case of the various Departments of Government.
At present the State Co-operative Union is maintaining a District wise list of candidates belonging to Scheduled Caste/Scheduled Tribe communities and who have successfully undergone the J.D.C./H.D.C. The State Co-operative Union has been requested from this office to advice the names of such qualified persons as and when requested by the societies concerned. In this connection all the Co-operative institutions are requested to approach the Secretary, State Co-operative Union for advice of names of qualified candidates belonging to Scheduled Castes/Scheduled Tribes for appointment in the respective Society where vacancies arise. The Societies are also requested to see that 10% of the posts reserved for Scheduled Castes/Scheduled Tribes are not filled up with others on the plea that candidates belonging to Scheduled Castes/Scheduled Tribes are not available unless it is informed by the Secretary, State Co-operative Union that candidates belonging to the communities said above are not available for advice.
K. V. Nambiar
Registrar of Co-operative Societies
Office of the Registrar of Co-operative Societies
The Registrar of Co-op: Societies
All Joint Registrars.
Sub:Appeals under the Co-operative Societies Act, and Rules against the orders of the Joint Registrars of Co-operative Societies-Regarding.
Section 83 of the Kerala Co-operative Societies Act, 1969 provides for appeal before the Government against the orders of the Joint Registrars of Co-operative Societies who exercise the power of the Registrar. A large number of appeals are being filed before the Government under this section. Government have now brought to the notice of the Registrar that in a number of cases there are violations of written rules and regulations before orders are passed by the Joint Registrar namely in removal of committee members, supersession or in appointment of administrators etc. Often motives are also attributed by the appellants. Though such pleas may be generally raised by them, in a few cases at least it has come to the notice of the Government that there are apparent violations of provisions of the Act, Rules and Regulations while passing order by the Joint Registrars. May be such violations may not ultimately prove to be material but nevertheless some times create avenues or areas for rescinding the orders passed by authorities and also increase the volume of work. As you are aware, normally appeals are decided by Government after hearing the views of the Joint Registrar or the Registrar.
So it is felt imperative that the Joint Registrar should exercise the statutory powers properly and observing the provisions of the Act, Rules and Regulations so that chances of appeals/complaints against the orders of the Joint Registrars are avoided. The Orders of the Joint Registrar shall be absolutely clear and should be indicative of the fact that rules and well laid out principles were followed before passing such orders.
For Registrar of Co-operative Societies
GOVERNMENT OF KERALA
Co-operation Establishment-Election to the Committee of Co-operative Societies Remuneration to Returning Officers fixed-Orders issued.
COOPERATION ‘A’ DEPARTMENT
Read:1. G.O.Rt.1751/77/AD. Dated 8-6-77.
2. Letter No. G.514/86. Dated, 14-1-86 from the Registrar of Co-operative Societies.
3. G.O.Rt. No.96/86/Coop. Dated, 5-3-1986.
Government are pleased to enhance the rate of remuneration being paid to the Returning Officer to Rs.75/- (Rupees Seventy five) from the existing rate of Rs. 50/- (Rupees fifty only).
The Registrar of Cooperative Societies, Trivandrum
Sub: Payment of gratuity of employees-Fifteen days wages calculation of – clarification sought for.
Ref: Your letters No. EM (1) 68409/82 dated 10-1-84 and EM (1) 41373/85 dated 30-12-85.
In response to the clarification sought for in your letter first cited I am to inform you as follows: According to section 1 (3) of the payment of Gratuity Act, 1972, the Act is applicable to
a) every factory mine, oil field, plantation, port and railway company.
b) Every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;
c) Such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.
Co-operative Societies do not fall under categories (a) and (c). The Kerala shop and commercial Establishment Act, 1966 is the law for the time being in force in the State in relation to shops and establishment in the State. Section 2 (15) of the Act defines ‘shop’ as any premises where any trade or business is carried on or where services are rendered to customers, and includes offices, store-rooms godowns or ware houses, whether in the same premises or other wise, used in connection with such trade or business but does not include a commercial establishment or a shop attached to a factory where the persons employed in the shop are allowed the benefits provided for works under the Factories Act, 1948. Commercial establishment is defined as a commercial or industrial or trading or banking or insurance establishment, an establishment or administrative service in which the persons employed are mainly engaged in office work, hotel, restaurant boarding or eating house cafe or any other refreshment house, a theatre or any other place of public amusement entertainment and includes such other establishment as the Government may, by notification in the Gazette, declare to be a commercial establishment for the purpose of this Act, but does not include a factory to which all or any of the provisions of the Factories Act, 1948 (Central Act 63 of 1948) apply (vide section 2 (4) of the Act). Co-operative Societies carrying on Banking Business fall within the purview of the term commercial establishment as defined in section 2 (4) of the Shops and Commercial Establishment Act. Accordingly, the payment of Gratuity Act is applicable to the employees of Cooperative Societies carrying on banking business. By the nature of the business carried on by Cooperative Societies, almost all types of societies are to fall within the definitions of the terms shop or commercial Establishment as defined in the Act. Accordingly, in the matter of payment of Gratuity to the employees, such societies are to be governed by the payment of Gratuity Act, 1972. Accordingly, in the matter of computing basic wages for purposes of Gratuity, the principles laid down by the Supreme Court in AIR. 1980 S.C. 1944 should be followed. In the case of retired employees also gratuity can be paid in the light of the principles laid down by the Supreme Court.
In the case of societies not falling within the purview of the payment of Gratuity Act, 1972, gratuity is payable as provided in section 62 of the Kerala Cooperative Societies Act read with rule 59 of the Kerala Cooperative Societies Rules.