Ajayan D Konathuvila Veedu v. Director, Dairy Development Department & ors.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942** **WA.No.858 OF 2020** **AGAINST THE JUDGMENT DATED 24.06.2020 IN W.P.(C.)NO. 11549/2020(P) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **AJAYAN D KONATHUVILA VEEDU, KADAKKAVOOR P.O., THIRUVANANTHAPURAM-695306.** **BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** ## **RESPONDENTS/RESPONDENTS:** - **1 THE DIRECTOR DAIRY DEVELOPMENT DEPARTMENT, PATTOM P.O., THIRUVANANTHAPURAM-695004.** - **2 THE DEPUTY DIRECTOR, DAIRY DEVELOPMENT DEPARTMENT, PATTOM P.O., THIRUVANANTHAPURAM-695004.** - **3 THE MANAGING COMMITTEE, MELKADAKKAVUR KSHEERA VYAVASAYA SAHAKARANA SANGHOM LTD. NO.T-17, KADAKKAVUR P.O., THIRUVANANTHAPURAM-695306, REPRESENTED BY ITS PRESIDENT.** - **4 MELKADAKKAVUR KSHEERA VYAVASAYA SAHAKARANA SANGHOM LTD. NO.T-17** - **KADAKKAVUR P.O., THIRUVANANTHAPURAM-695306, REPRESENTED BY ITS SECRETARY IN CHARGE.** - **5 R.ANIL KUMAR, SUDHA NIVAS, VAKKOM P.O., THIRUVANANTHAPURAM-695308.** WA.No.858 OF 2020 2 **6 M.MANEESH, M.S.NILAYAM, OORAKAM, VAKKOM, THIRUVANANTHAPURAM-695308. 7 THE DAIRY EXTENSION OFFICER, CHIRYINKEEZHU BLOCK,CHIRYINKEEZHU P.O., THIRUVANANTHAPURAM-695304.** **R1 & R2 BY SMT. K.R. DEEPA, SENIOR GOVERNMENT PLEADER (B/O) R3 & R4 BY ADVS. SRI.T.R.HARIKUMAR SRI.ARJUN RAGHAVAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.858 OF 2020 3 ## **JUDGMENT** ## Ravikumar, J. This intra court appeal is filed against the judgment dated 24.06.2020 in W.P.(C.) No. 11549/2020. The appellant was the writ petitioner. He moved the aforesaid writ petition seeking various reliefs as under:- - “i. Issue a writ of Mandamus directing the respondents 1 and 2 to consider Ext.P5, Ext.P6 and Ext. P10 complaints filed by the petitioner and to take necessary action in accordance with law. - ii. Issue a writ of declaration or any other appropriate writ, order or direction declaring that the petitioner is entitled to be appointed as the Secretary/Secretary in Charge of the society; - iii. Issue a writ of declaration or any other appropriate writ, order or direction declaring that the re-employment of the 5[th] respondent in the society after superannuation is arbitrary and illegal. - iv. Issue such other writ, order or direction as this Hon'ble Court may deem fit in the facts and circumstances of the case.” 2. After considering the rival contentions and arriving at the conclusion that virtually the petitioner's grievance is against the appointment of the sixth respondent as the Secretary of the fourth respondent society, the learned Single Judge held that it is a service dispute involving the petitioner and a Co-operative Society and therefore, he got an efficacious alternative remedy under Section 69 WA.No.858 OF 2020 4 of the Kerala Co-operative Societies Act (for brevity the 'Act'). The learned Single Judge also took note of the fact that the appellant herein/the petitioner attributes malafides in the matter of appointment of the sixth respondent and held that in such circumstances, factual dispute also calls for adjudication. It is in the said circumstances that without prejudice to the right of the appellant/writ petitioner to move the appropriate forum under Section 69 of the Act for challenging the appointment of the sixth respondent and leaving it open to the petitioner to raise all contentions on merits, the writ petition was dismissed. 3. Heard learned counsel appearing for the appellant, the learned counsel appearing for respondents 3 and 4 and also the learned Senior Government Pleader. 4. We have carefully gone through the pleadings of the appellant in the writ petition as also in the appeal. A perusal of the reliefs sought for in the writ petition would reveal that he did not directly seek for any relief against the sixth respondent. In other words, he had not directly raised any challenge against the appointment of the sixth respondent. At the same time, it is evident that he sought for a declaration that he is entitled to be appointed as WA.No.858 OF 2020 5 Secretary/Secretary-in-charge of the Society. Consequential relief is also sought for. Ground (D) in the writ petition reads that.:- “D. The petitioner being the senior most eligible employee to be appointed as the Secretary of the society, the act of the managing committee appointing a person who is only a junior clerk and who does not possess required qualification to hold the post of secretary is arbitrary and illegal and will curtail the rightful opportunity of the petitioner to get promoted.” In the light of the ground (D) and the averments, despite the fact that no specific relief was sought for against the sixth respondent or any challenge was made against his appointment, we are of the considered view that the learned Single Judge was perfectly justified in coming to the conclusion that the appellant got grievances against the appointment of the sixth respondent, be as the Secretary of the Society or as the Secretary-in-charge of the Society and also in holding that such a dispute is nothing but a service dispute between the writ petitioner/appellant herein and the Society in the light of the provisions under Section 69 of the Act. In this context, it is relevant to refer to a decision of a learned Single Judge of this Court in **Prakasini v. Joint Registrar [2006 (1) KLT 199]** which was affirmed by a Division Bench of this Court in the decision in **Raveendran v. State of Kerala** reported in **[2007 (3)** WA.No.858 OF 2020 6 **KLT 558]** . In **Prakasini's** case (supra), it was held that the Arbitration Court constituted under Section 69 of the Act and not the Departmental Officers that is vested with the power to resolve dispute in connection with employment including promotion and inter se seniority between employees. While affirming the decision in **Prakasini's** case (supra), the Division Bench in **Raveendran's** case (supra) held that disputes in connection with the employment of officers and servants of different classes of societies specified in sub-section (1) of Section 80 of the Act, including their promotion and inter se seniority has to be decided by the Arbitration Court. Further, it was held that all non-monetary disputes coming within the jurisdiction of the Arbitration Court, pending before the Registrar has to be transferred to the Arbitration Court. According to us, Section 69(1)(h) read with Section 69(2)(d) of the Act would reveal disputes arising in connection with employment of officers and servants of the different classes of societies specified in subsection (1) of Section 80, including their promotion and inter se seniority are disputes to be adjudicated by the Arbitration Court and not by Departmental Officers. In such circumstances, the learned Single Judge is perfectly right in holding that an alternative WA.No.858 OF 2020 7 efficacious remedy is available under Section 69 of the Act. True that existence of an alternative remedy will not invariably be a bar for entertaining a writ petition. But normally in such circumstances, this Court will be loath to entertain writ petitions and would relegate the parties to avail the statutory remedy. In such circumstances, when the learned Single Judge found that an alternative efficacious remedy is available and then declined jurisdiction on that ground and dismissed the writ petition without prejudice to the right of the writ petitioner/appellant to avail such remedy, the said judgment warrants no interference in exercise of the power under Section 5 of the High Court Act. 5. When the appeal came up for consideration, this Court directed the Government Pleader to get instructions on certain aspects, as per order dated 29.07.2020. Virtually, the same was passed, taking note of the submission to the effect that the fifth respondent, who retired from the service of the fourth respondent Society as Secretary, despite his retirement on superannuation is attending the office and discharging his duties as Secretary, on the premise that he was re-employed therein. In fact to that effect to certain averments were raised in the appeal itself. WA.No.858 OF 2020 8 6. The learned counsel appearing for respondents 3 and 4, on getting instructions on the aforesaid issue submitted before us that the fifth respondent has never been re-employed and he is not being permitted to discharge the duties of Secretary after his retirement. In fact to that extent, an affidavit was also placed on record. However, the appellant reiterated the allegation that the fifth respondent is attending the office and he is discharging the duties attached to the post of Secretary of the fourth respondent Society and to buttress the contention, he produced Annexures III and IV. Taking note of the said submission and the said documents another order was passed on 07.09.2020, whereby and where-under we directed for the production of the originals of Annexures III and IV. Today the learned counsel made available the original of those documents for our perusal. 7. A memo was filed by the learned Senior Government Pleader wherewithal a report of the Deputy Director, Dairy Development Department, Thiruvananthapuram was produced. It pertains to the issue as to whether the fifth respondent is discharging any function as a re-employed person in the fourth WA.No.858 OF 2020 9 respondent Society. True that it is stated therein that the fifth respondent used to come to the Society after 3.00 P.M. The report would reveal that the seventh respondent examined the CCTV footage available from 14.08.2020 to 04.09.2020 in the heifer park and the said examination revealed that the fifth respondent visited the heifer park belonging to the Society on 16.08.2020, 18.08.2020 and 22.08.2020 and he spent 30 to 60 minutes therein. It is after examining the CCTV footage available in the Dairy Plant of the fourth respondent Society that the seventh respondent found that the fifth respondent used to come there, after 3.00 P.M. However, it is not stated in the report that the fifth respondent is discharging any duty in any capacity as a re-employed person in the fourth respondent Society. True that on perusal of Annexures III and IV, it is found that the fifth respondent had put his signatures thereon. In fact, earlier a memo was filed by the Senior Government Pleader and along with that a report of the Deputy Director, Dairy Development Department dated 07.08.2020 was produced. It would reveal that the Deputy Director had verified the Attendance Register for the month of June and July, 2020 and the Acquittance Roll/Pay Roll for the month of June and July, 2020 and upon such WA.No.858 OF 2020 10 verification, it is found that the name of the fifth respondent, who retired from service on 31.05.2020, is not there in the Attendance Register as also in the Acquittance Roll/Pay Roll. Along with the said report, copy of the minutes dated 30.05.2020 of the fourth respondent Society was also produced. It would reveal that a resolution was passed on 30.05.2020, on the following lines:- "തതീരുമമാനന.2. 31/5/2020- ൽ വവിരമവിക്കുന്ന സസെക്രട്ടറവിയയസട കമാലയളവവിൽ നടതവിയ ക്രയവവിക്രയങ്ങളവിൽ തുക നൽകമാസത കുടവിശശവികയമായവി നവിൽക്കുന്ന Invoice കൾ Bill കൾ Voucher കൾ ഹമാജരമാക്കുന്ന മയറയയ്കയ് പയതുതമായവി ചമാർസജ്ജെടയക്കുന്ന സസെക്രട്ടറവിയയസട പരവിശശമാധന നടതവി ബവിലയ്ലയകൾ നൽകുന്നതവിനയ് വവിരമവിക്കുന്ന സസെക്രട്ടറവിസയ അറവിയവികമാൻ തതീരുമമാനവിചയ.” Going by the resolution, in respect of certain transactions for which no payment was effected, on production of the invoice bills and vouchers, the sixth respondent was to examine them and after verification and examination he was to intimate the said fact to the fifth respondent. In respect of the vouchers produced as Annexures III and IV, after examining them, intimation was given to the fifth respondent and thereupon, he turned to the office and put his signature. It is submitted that apart from the same, at any point of WA.No.858 OF 2020 11 time, the fifth respondent was not permitted to enter the office for doing any kind of duty. With respect to the action on the part of the sixth respondent in permitting the fifth respondent to put signature on those vouchers after endorsing the factum of verification, we are of the view that it is for the Managing Committee of the fourth respondent Society to take action, if any action is warranting in respect of the said incident, in accordance with law. 8. In fact, we made the learned Government Pleader to get instructions and file statements and also required the learned counsel for the respondents 3 and 4 to file statement on the allegation raised against the sixth respondent solely taking into account the submission that a retired employee is attending duties without any authority. It is to ensure that in a Society, an employee who retired from service is not discharging duties without sanction of law that we issued such directions. Now, it is evident that no order of re-employment or any decision to re-engage him or to reemploy him in the fourth respondent Society was issued. It is also submitted by the learned counsel for the Society, on instructions that the sixth respondent will not be permitted to discharge any duty in the fourth respondent Society as he has already retired from its WA.No.858 OF 2020 12 service. In such circumstances, we are of the view that we need not undertake any further probe in the matter. In relation to the challenge against the judgment of the learned Single Judge, we have already found that the learned Single Judge had come to the rightful conclusion that the subject matter of the writ petition includes a service dispute between the petitioner and the fourth respondent Society to resolve it, if the petitioner desires, he has to avail the remedy available under Section 69 of the Act. Since we are in full agreement with the said conclusion and finding, the disinclination by the learned Single Judge to entertain the writ petition, on the ground of existence of alternative efficacious remedy invites no interference. In the result, with the aforesaid observation, this appeal stands dismissed. **SD/-** **C.T.RAVIKUMAR JUDGE SD/K.HARIPAL JUDGE** **DCS/30.09.2020** WA.No.858 OF 2020 13 The sentence commencing from 10[th] line of paragraph 8 of the judgment dated 25.09.2020 in W.A. No. 858 of 2020 is corrected as follows:- _“the word '_ _**sixth** ' appearing in between “instructions that the” and_ _“respondent” is deleted and the word '_ _**fifth** ' is incorporated.”_ as per order dated 02.02.2021 in I.A. No. 2 of 2020 in W.A.858 of 2020. **sd/-** **Deputy Registrar** WA.No.858 OF 2020 14 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE- I: TRUE COPY OF THE COMPLAINT DATED 30.07.2020 SUBMITTED BY THE APPELLANT BEFORE THE C.I. OF POLICE.** **ANNEXURE -II:** **TRUE COPY OF THE RECEIPT ISSUED FROM THE POLICE STATION DATED 30.07.2020.** **ANNEXURE -III: TRUE COPY OF THE VOUCHER DATED 15.07.2020 SIGNED BY THE 5TH RESPONDENT.** **ANNEXURE- IV: TRUE COPY OF THE ELECTRICITY BILL OF THE SOCIETY FOR THE MONTH OF JULY COUNTERSIGNED AND VERIFIED BY THE 5TH RESPONDENT.** **ANNEXURE-V: TRUE PHOTOGRAPH EVIDENCING THE REEMPLOYMENT OF THE 5TH RESPONDENT IN THE SOCIETY.**