Aghina Raj and Others v. Nayaramabalam Service Co-operative Bank Ltd and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 9[TH] DAY OF FEBRUARY 2022 / 20TH MAGHA, 1943** **WA NO.208 OF 2022** **AGAINST THE JUDGMENT DATED 17.12.2021 IN WP(C) 24018/2021 OF HIGH** ## **COURT OF KERALA** ## **APPELLANTS/PETITIONERS:** **AGHINA RAJ, AGED 29 YEARS, JUNIOR CLERK, NAYARAMBALAM SERVICE CO1 OPERATIVE BANK LTD.NO.E-92, NAYARAMBALAM, ERNAKULAM-682 509.** **SHANI N.M, 2 JUNIOR CLERK, NAYARAMBALAM SERVICE CO-OPERATIVE BANK LTD.NO.E-92, NAYARAMBALAM, ERNAKULAM-682 509.** - **SAMILY.T.S,** - **3 JUNIOR CLERK, NAYARAMBALAM SERVICE CO-OPERATIVE BANK LTD.NO.E-92, NAYARAMBALAM, ERNAKULAM-682 509.** **BY ADVS. B.R.MURALEEDHARAN K.V.SURESH** ## **RESPONDENTS/RESPONDENTS:** - **NAYARAMBALAM SERVICE CO-OPERATIVE BANK LTD.NO E-92,** - **1 REPRESENTED BY ITS SECRETARY, NAYARAMBALAM, ERNAKULAM-682 509.** - **THE MANAGING COMMITTEE, REPRESENTED BY ITS PRESIDENT,** - **2 NAYARAMBALAM SERVICE CO-OPERATIVE BANK LTD.NO.E-92, NAYARAMBALAM, ERNAKULAM-682 509.** - **THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),** - **3 CIVIL STATION, B2 BLOCK, 5TH FLOOR, KAKKANAD, KOCHI-682 030** W.A No.208 of 2022 2 **4** **ANITHA.P.H., KADAVIL HOUSE, NAYARAMBALAM, ERNAKULAM-682 509.** **SRI.B.UNNIKRISHNA KAIMAL, SR.GOVERNMENT PLEADER FOR R3 SRI.K.S.BHARATHAN FOR R4** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A No.208 of 2022 3 ## **(CR)** ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** **=================================** ## **W.A No.208 of 2022** [ _arising out of the judgment dated 17.12.2021 in W.P(C) No.24018/2021_ ] **=================================** Dated this the 09[th] day of February, 2022 ## **JUDGMENT** ## **Alexander Thomas, J.** The appellants herein are aggrieved by the judgment dated 17.12.2021 rendered by the learned Single Judge in W.P(C) No.24018/2021 filed by them, whereby, the said writ petition has been dismissed on the ground that the proper remedy of the writ petitioners therein/appellants herein, is to approach the Kerala Co-operative Appellate Tribunal in regard to their grievances as against the impugned Ext.P-2 Award rendered by the Co-operative Arbitration Court, Thiruvananthapuram. 2. Heard Sri.B.R.Muraleedharan, learned counsel appearing for the appellants in the W.A/ petitioners in the W.P(C), Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for official respondent No.3 and Sri.K.S.Bharathan, learned Advocate appearing for contesting respondent No.4 in the W.A. 3. The appellants are essentially aggrieved by the impugned Ext.P-2 Award dated 21.10.2021 rendered by the Co-operative Arbitration Court, Thiruvananthapuram in Arbitration Reference Case, ARC W.A No.208 of 2022 4 No.42/2019 filed by R4 herein. By Ext.P-2 Award, the Arbitration Court has directed that the 1[st] defendant therein (Nayarambalam Service Co-operative Bank Ltd.-R1 herein), shall promote the plaintiff therein (R4 herein) as Junior Clerk w.e.f 01.12.2017 within two months and provide her all service benefits for all purposes in that regard and to regularize her service in the defendant-Bank accordingly. 4. The appellants contend that they have been appointed on direct recruitment basis to the service of the 1[st] respondent-Co-operative Bank on 30.04.2019, 02.05.2019 & 07.05.2019 respectively by resorting to the method of direct recruitment. Whereas, the 4[th] respondent herein has claimed promotion to the post of Junior Clerk on the basis of promotion. 5. The learned Single Judge after hearing both sides, has held that the proper remedy of the appellants for challenging Ext.P-2 Award is by approaching the Kerala State Co-operative Tribunal in terms of Sec.82 of the Kerala Co-operative Societies Act. 6. Sri.B.R.Muraleedharan, learned counsel appearing for the appellants would point out that no provisions have been made either in the Kerala Co-operative Societies Act or in the Rules framed thereunder, to enable parties like the appellants herein, who are third parties before the Arbitration Court to file an appeal before the Kerala Co-operative Tribunal, W.A No.208 of 2022 5 which is the appellate Forum and that therefore, they are compelled to resort to writ proceedings under Article 226 of the Constitution of India. 7. _Per contra_ , Sri.K.S.Bharathan, learned counsel appearing for R4 herein would urge that the appellants cannot be said to be in any manner aggrieved by the promotion order to be granted in favour of R4 herein by the State Arbitration Court, as per Ext.P-2 Award, inasmuch as they have already secured appointment as Junior Clerk by the method of direct recruitment, whereas the claim of R4 herein was for promotion from the feeder category of Peon to the higher category of Junior Clerk, in the vacancy which had arisen on 31.10.2017, on account of a Junior Clerk being promoted as Senior Clerk. Sri.K.S.Bharathan, learned counsel appearing for R4 herein would also point out that the said incumbent, who was holding the post of Junior Clerk and subsequently promoted as Senior Clerk, had secured appointment as Junior Clerk by the method of promotion. Further that, promotion and direct recruitment are to be made in the ratio 1:4. Further that, the appellants herein cannot have any legally justiciable grievances as against the promotion claimed by the 4[th] respondent herein, etc. It is also pointed out by Sri.K.S.Bharathan, learned counsel appearing for R4 herein that R1 herein (Co-operative Society-employer) has already filed Appeal No.132/2021 before the State Co-operative Tribunal to impugn W.A No.208 of 2022 6 Ext.P-2 award. 8. After hearing both sides, we find that Sec.82 of the Kerala Co-operative Societies Act, enables any party who is aggrieved by the verdict of the Arbitration Court to prefer statutory appeal before the Kerala Co-operative Tribunal, which is presided over by a judicial officer of the rank of District Judge. Further, Rule 122(1) of the Kerala Co-operative Societies Rules provides that save otherwise provided by the Act and the Rules, the provisions of the CPC and the Civil Rules of Practice for the time being in force shall, wherever necessary with suitable variations, govern the matters referred to therein. It will be pertinent to refer to Sec.82 of the Kerala Co-operative Societies Act, which provides as follows : ## _“_ _**Sec** ._ _**82. Appeals to Tribunal.- (1) Any person aggrieved by-**_ - _(a) an award of the Co-operative Arbitration Court, under sub-section (1) of Section 70; or_ - _(b) an order of the Registrar made under clause (ii) of subsection (8) or clause (ii) of sub-section (9) of Section 14; or_ - _(c) any decision of the Registrar made under sub-section (6) of S.70; or_ - _(d) any decision under sub-section (6) of S.70 of the person invested with powers in that behalf, by the Government; or_ - _(e) any award of the Arbitrator under sub-section (6) of S.70;_ _may, within sixty days from the date of such decision or award, as the case may be, appeal to the Tribunal and the Tribunal may pass such orders on the appeal as it may deem fit._ _(1A) The Tribunal shall pass an order under sub-section (1)_ W.A No.208 of 2022 7 _within six months with direction to communicate the copies thereof within fifteen days to the parties thereof_ _(2) An order passed by the Tribunal under sub-section (1) shall be final.”_ A mere reading of Sec.82 of the Act would make it clear that the Legislature has specifically mandated as per Sec.82(1)(a) thereof that any person aggrieved by an award of the Co-operative Arbitration Tribunal, under Sec.70(1), may within sixty days from the date of such decision or award, appeal to the Tribunal and the Tribunal, may pass orders on the appeal as it may deem fit, etc. 9. Further, Rule 122 of the Kerala Co-operative Societies Rules provides as follows : _“_ _**Rule 122. Application of Code of Civil Procedure, etc.** : - (1) Save otherwise provided by the Act and the Rules, the provisions of the Code of Civil Procedure, 1908 and the Civil Rules of Practice for the time being in force shall, wherever necessary with suitable variations, govern:-_ - _(i) The form of and the procedure relating to all applications, statements, memos and other records made to or filed in the Tribunal;_ - _(ii) The scale of fees payable by parties in regard to process other than notice and summons, and refund of any excess fees remitted; and_ - _(iii) Any other cognate or ancillary matter arising for consideration of disposal by the Tribunal._ _(2) If any difficulty arises in giving effect to the procedure laid down in these rules, the Tribunal may as occasion may require do anything which appears to be necessary for the purpose of removing the difficulty.”_ W.A No.208 of 2022 8 Rule 122(1)(iii) also provides that save otherwise provided by the Act and the Rules, the provisions of the Code of Civil Procedure, 1908 and the Civil Rules of Practice for the time being in force shall, wherever necessary with suitable variations govern any other cognate or ancillary matter arising for consideration of disposal by the Tribunal. Further, Rule 122(2) also provides that if any difficulty arises in giving effect to the procedure laid down in these rules, the Tribunal may as occasion may require do anything which appears to be necessary for the purpose of removing the difficulty. From the abovesaid provisions, it is clear that the Legislature has guardedly and consciously mandated in Sec.82(1)(a) that any person aggrieved by an award of the Co-operative Arbitration Tribunal under Sec.70(1) can prefer an appeal before the Co-operative Tribunal. Sec.82 does not say that the parties to the proceedings before the Arbitration Court alone can prefer appeal to the Tribunal. So long as, the party can convincingly establish before the Tribunal that he/she is having a legally justiciable grievance as against the award of the Co-operative Arbitration Court rendered under Sec.70(1), by pleading the cogent facts and circumstances in that regard, then the Tribunal has the discretion to consider such application for third party leave and then render a decision as to whether third party leave is to be granted after hearing the applicant seeking third party leave and the W.A No.208 of 2022 9 person who has secured the award from the Co-operative Arbitration Court and if the third party leave is granted by the Tribunal, then thereafter the Tribunal can proceed to entertain such appeal preferred by the third party on merits and render decision thereon, in accordance with law, after hearing both sides. These aspects are the clear follow out of the provisions contained in Sec.82(1)(a) of the Kerala Co-operative Societies Act. That apart, Rule 122(1) speaks about the applicability of the CPC and the Civil Rules of Practice and clause (iii) of Rule 122(1) makes it clear that save as otherwise provided by the Act and the Rules, CPC will govern the matter with suitable variations, not only on aspects covered by clauses (i) & (ii) thereof but also clause (iii) thereof, which speaks about any other cognate or ancillary matter arising for consideration of disposal by the Tribunal. 10. It has been held by the Apex Court in para No.8 of the decision in the case in _**Banarsi & Ors.** v._ _**Ram Phal**_ [AIR 2003 SC 1989], reads as follows: _“_ _**8** . Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. See Phoolchand and another v. Gopal Lal, 1967(3) SCR 153; Smt.Jatan Kanwar Golcha v. M/s.Golcha Properties (P.) Ltd., 1970 (3) SCC 573; Smt.Ganga Bai v. Vijay Kumar and others. (1974) 2 SCC 393. No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of_ W.A No.208 of 2022 10 _the CPC provide for an appeal against decree and not against judgment.”_ 11. Further, it has been held by this Court in para Nos.8, 9 & 13 of ## the decision in the case in _**Ramachandran Potti** v._ _**Thankam**_ ## [2004 (3) KLT 183], read as follows : _“_ _**8** . S.96 of the Code of Civil Procedure provides for an appeal from the original decree. The word “appeal” is not defined in the Code of Civil Procedure. The wording of S.96 of the Code of Civil Procedure is relevant. It reads as follows:-_ _“_ _**S.96. Appeal from original decrees.** - (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction of the Court authorized to hear appeal from the decisions of such Court._ _(2) An appeal may lie from an original decree passed ex parte._ _(3) No appeal shall lie from a decree passed by the Court with the consent of parties._ **==> picture [302 x 12] intentionally omitted <==** _A reading of S.96 of the Code of Civil Procedure shows that that Section does not enumerate the persons who can file an appeal under that Section. A party to a decree can straight away file an appeal challenging the decree. In such appeals also the respondent can raise a question of maintainability of that appeal. A reading of S.96(1) of the Code of Civil Procedure shows that in order to maintain an appeal against the decree, the person must be aggrieved by the decree passed in that case. If a party can successfully show that he will be benefited from the charge in the judgment or decree, it can be said that he is having an appealable interest; but that interest must be substantial, immediate and pecuniary. The aggrieved person must have a legal grievance also._ _**9** . As I already stated, the normal rule is that a person who is a party to the suit or his legal representatives can file an appeal. A person who is not a party to the suit may also file an appeal with leave of the appellate Court. The English practice is that “a person who is not a party and who has not been served with a notice of the judgment or order may not appeal without leave, but a person who might properly have been made a party_ W.A No.208 of 2022 11 _may obtain leave to appeal” (Halsbury's Laws of England IV Edn. Volume 37, Page 520)._ _xxx xxx xxx xxx xxx xxx_ _**13** . So, the general principles settled by the long chain of authorities are that if a person who is not a party to the decree or order wants to challenge the decree/order, he can maintain an appeal with leave of the appellate Court. If he is able to prima facie show that he is either bound by the order or is aggrieved by it or is prejudicially affected by it, the appellate Court shall grant the leave sought for. So, the position is clear that in order to get special leave the person who files such a petition need only show prima facie that he is aggrieved by the judgment and decree and he is having an appealable interest.”_ 12. So though there are no explicit provisions in Sec.96 & Sec.100 of the CPC, it has been held that any party aggrieved by the impugned judgment and decree of the court below can prefer an appeal before the appellate court, after securing third party leave to file appeal from the appellate court concerned. Whereas, in the instant case, Sec.82 of the Co-operative Societies Act itself makes it clear like the day light that any person aggrieved by the award of the Co-operative Arbitration Court, could prefer an appeal before the Tribunal. Hence, the abovesaid contention of the appellants that they are not entitled to file third party appeal before the Co-operative Arbitration Tribunal in terms of Sec.82(1)(a) of the Co-operative Societies Act, is not tenable and the finding made by the learned Single Judge that the proper remedy for the appellants is to file W.A No.208 of 2022 12 such appeal before the Co-operative Tribunal, is legally correct and sustainable. 13. Sri.B.R.Muraleedharan, learned counsel appearing for the appellants submits that the limitation period of 60 days mentioned in Sec.82(1) of the Act, could run as against third parties only from the date of knowledge of the impugned award and further that, the benefits of limitation extension and time exclusion ordered by the Three Judge Bench of the Apex Court in Suo Motu Writ Petition (Civil) No.3/2020, as per order dated 15.03.2020 and the orders passed in that matter recently, would also apply in the instant case, in as much as the impugned Ext.P-2 award was rendered by the Co-operative Arbitration Court on 21.10.2021, which falls within the eligible period for limitation extension and time exclusion, etc., as covered by the abovesaid orders of the Apex Court in view of Covid-19 pandemic issues, etc. Further, the learned counsel for the appellants would also point out that the learned Single Judge has already ordered that the time spent by the appellants in the present writ proceedings could be excluded for the purpose of calculating the limitation period, etc. and further that, the period spent for prosecution of the present writ appeal from date of its filing on 08.02.2022, etc., may also be excluded. W.A No.208 of 2022 13 14. The upshot of the above discussion is that in case the appellants have any legally justiciable grievances in the matters arising out of the impugned Ext.P-2 award rendered by the Arbitration Court, then it is for them to file third party appeal along with application to secure third party leave from the Kerala Co-operative Tribunal, in terms of Sec.82(1) of the Act. 15. We need not delve any further into the above aspects and in case the appellants prefer third party appeal along with third party leave application, it is for them also to prosecute the delay condonation application and all contentions available to them in law and it is open to them to urge all contentions available to them in law in respect of those matters. However, it is made clear that in case third party leave application is filed, the Tribunal should issue notice to R4 herein, who is the plaintiff in Ext.P-2 proceedings and the contentions of R4 herein that the appellants cannot be said to be legally aggrieved by Ext.P-2 award, etc., are also to be duly adverted to and considered and after hearing both the appellants as well as R4 herein, appropriate decision may be rendered by the Tribunal on the issue of third party leave. 16. For the above reasons, there are no grounds to interfere with the conclusions arrived at by the learned Single Judge, as per the W.A No.208 of 2022 14 impugned judgment dated 17.12.2021 in W.P(C) No.24018/2021. With these observations and directions, the above Writ Appeal will stand dismissed. **Sd/-** ## **ALEXANDER THOMAS, JUDGE** **Sd/VIJU ABRAHAM, JUDGE** vgd