Anthiyoor Service Co-operative Bank Ltd. v Joint Registrar of Co-operative Societies (General) & Kerala State Co-operative Employees Pension Board & Board of Directors of Anthiyoor Service Co-operative Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945** **WP(C) NO. 5456 OF 2022** ## **PETITIONER:** THE ANTHIYOOR SERVICE CO-OPERATIVE BANK LTD.NO.1166 ANTHIYOOR, BALARAMAPURAM POST-695 501, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY ITS PRESIDENT BY ADV P.C.SASIDHARAN ## **RESPONDENTS:** 1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, JAGATHY, THIRUVANANTHAPURAM-695 014. 2 C.PREMAKUMAR, AGED 55 YEARS SECRETARY, THE ANTHIYOOR SERVICE CO-OPERATIVE BANK LIMITED NO 1166, ANTHIYOOR, BALARAMAPURAM POST-695 501, THIRUVANANTHAPURAM DISTRICT BY ADVS. ADVOCATE GENERAL OFFICE KERALA P.K.VIJAYAMOHANAN AISWARYA V.S. ## **OTHER PRESENT:** SMT. K.B. SONY. GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2023, ALONG WITH WP(C).12411/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945** ## **WP(C) NO. 12411 OF 2022** ## **PETITIONER:** PREMAKUMAR C SECRETARY, THE ANTHIYOOR SERVICE CO-OPERATIVE BANK LIMITED N.1166, ANTHIYOOR, BALARAMAPURAM POST-695 501, THIRUVANANTHAPURAM DISTRICT BY ADVS. P.K.VIJAYAMOHANAN AISWARYA V.S. ## **RESPONDENTS:** 1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), JAWAHAR SAHAKARANA BHAVAN, JAGATHY, THIRUVANANTHAURAM-695 014 2 THE KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM-695 001. 3 THE BOARD OF DIRECTORS OF ANTHIYOOR SERVICE CO-OPERATIVE BANK LIMITED NO.1166, REPRESENTED BY ITS PRESIDENT, ANTHIYOOR, BALARAMAPURAM POST695 501, THIRUVANANTHAPURAM DISTRICT BY ADVS. M.SASINDRAN P.C.SASIDHARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2023, ALONG WITH WP(C).5456/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W.P.(C) Nos.12411 & 5456 of 2022 = = = = = = = = = = = = = = = = = = Dated this the 23[rd] day of March, 2023** ## **J U D G M E N T** W.P.(C) No.12411/2022 is filed by the former Secretary (hereinafter referred to as, “the employee”) of the Anthiyoor Service Co-operative Bank Ltd (herein after referred to as, “the Society”). He seeks for grant of benefits in terms of Ext.P4 compromise award of the Arbitration Court. W.P.(C) No.5456/2022 is filed by the Society, challenging Ext.P4 award and Ext.P13 order (in W.P.(C) No.5456/2022) by the Joint Registrar directing grant of benefits under the award. 2. Heard learned counsel Sri.Vijayamohanan P.K., on behalf of the employee and Sri.P.C.Sasidharan, learned counsel for the Society and the learned Government Pleader. 3. The petitioner joined the services of the Society on 01.01.1989 as Sales Assistant. The **W.P.(C) Nos.12411 & 5456 of 2022** **==> picture [34 x 9] intentionally omitted <==** appointment was on consolidated pay. He assumed the Office of the Secretary on 30.06.2008. Claiming the regular scale of pay, the eligible promotions, enrollment in the pension scheme and other benefits, he filed ARC 148/2009. Pending the ARC, the parties entered into a compromise. The ARC was disposed of on 14.02.2017 as per Ext.P4, passing an award in terms of the compromise petition (Ext.P3). Ext.P3 compromise petition contained the following terms:- - (i) Regularisation of scale of pay. - (ii) Promotion to the post of Junior Clerk with effect from 01.01.1992 and the grant of the scale of pay for the said post with retrospective effect. - (iii) Enrollment in the Co-operative Employees Pension Board with effect from 01.01.1989. - (iv) Grant of leave surrender, bonus, yearly increment from 01.01.1990. **W.P.(C) Nos.12411 & 5456 of 2022** -: 3 :- - (v) Promotion to the post of Secretary with effect from 01.07.2008 with the benefits of the said post. - (vi) Arrears of the service benefits. - (vii) Compromise the ARC on the afore terms. (viii) Pass an award on the terms of the compromise. Seeking fixation of pay and grant of benefits in terms of the compromise award, the employee approached the Joint Registrar. The Joint Registrar passed Ext.P13 order dated 15.11.2021 directing the Society to grant the benefits as is specified in the said order. Noticeably, all the benefits granted as per the ARC award were not directed to be given. The Joint Registrar noticed that certain benefits agreed to be granted as per the compromise has no legal backing. 4. In the meantime, seeking to set aside the ARC award alleging fraud, the Society filed IA 1/2021 in the ARC. The application was accompanied by IA 2/2021 **W.P.(C) Nos.12411 & 5456 of 2022** **==> picture [34 x 9] intentionally omitted <==** seeking to condone the delay of 1116 days in filing IA 1/2021. The Arbitration Court as per Ext.P17 order dated 03.02.2022 dismissed the delay condonation petition. Consequently, as per Ext.P16 order, IA 1/2021 was also dismissed. In W.P.(C) No.5456/2022, the Society challenges the orders dismissing the application to set aside the award and the application to condone the delay, and Ext.P13 order of the Joint Registrar directing payment of portion of the benefits granted under the compromise award. 5. Ext.P13 could not be treated as an order passed in execution of the award in terms of Section 76 read with Rule 74 since the requirements of the said provisions have not been complied with. The very fact that the Joint Registrar finds that part of the terms of the compromise are not sanctioned by law suggests on the nature of the compromise entered into. **W.P.(C) Nos.12411 & 5456 of 2022** -: 5 :- 6. As regards the dismissal of IA Nos.1 and 2, the Arbitration Court while dismissing the delay condonation application has not considered the reason for the delay, but has rather considered the merits and has observed that the challenge is against a compromise. While considering an application for condonation of delay what needs to be looked into is the sufficiency of the reasons for the delay and not the merits of the case. _(See_ _**Ram Kali Devi v. Manager, Punjab National Bank Shamshadabad & Ors. 1998 (9) SCC 558, State of Jharkhand v. Ashok Kumar Chokhani AIR 2009 SC 1927, Commissioner Nagar Parishad, Bhilwara v. Labour Court, Bhilwara & Ors. (2009 (3) SCC 525)** ]._ Therefore, the applications are to be reconsidered. 7. In the light of the discussions as above, Exts.P13 and P14 orders are liable to be interfered with. 8. Resultantly, the writ petitions are ordered as hereunder:- **W.P.(C) Nos.12411 & 5456 of 2022** -: 6 :- Exts.P13, P16 and P17 orders in W.P.(C) No.5456/2022 are quashed. The employee is at liberty to move for execution of the award in accordance with law. The Arbitration Court shall re-consider IA No.1/2021 and IA No.2/2021 and pass fresh orders within a period of one month from the date of receipt of a copy of this judgment. kns/- Sd/- **SATHISH NINAN JUDGE** P.S. to Judge //True Copy// ## **APPENDIX OF WP(C) 12411/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER NO.C.R.P (2) 1472/89 DATED 08.06.1989 OF THE 1ST RESPONDENT Exhibit P2 TRUE COPY OF THE RESOLUTION NO.VIII DATED 11.07.2016 OF THE 3RD RESPONDENT Exhibit P3 TRUE COPY OF THE RESOLUTION NO.IV DATED 18.07.2016 OF THE 3RD RESPONDENT TO THE PETITIONER Exhibit P4 TRUE COPY OF THE ORDER DATED 14.02.2017 IN ARC NO.148/2009 OF THE CO-OPERATIVE ARBITRATION COURT RESPONDENT EXHIBITS |EXHIBIT-|TRUE COPY OF THE DECISION NO.VI OF THE BOARD OF| |---|---| |R3(D)|DIRECTORS OF THE BANK IN MEETING NO. XVIII DATED| ||29.09.2021.| |EXHIBIT-|TRUE COPY OF THE STATEMENT SUBMITTED BY THE BANK BEFORE| |R3(E)|THE 1ST RESPONDENT DATED 11.11.2021.| |EXHIBIT-|TRUE COPY OF THE ORDER NO. CRP(1).233 OF 2021 DATED| |R3(F)|15.11.2021 ISSUED BY THE 1ST RESPONDENT.| |EXHIBIT-|TRUE COPY OF THE BALANCE SHEET OF THE 3RD RESPONDENT| |R3(G)|BANK AS ON 31.03.2021.| |EXHIBIT-|TRUE COPY OF THE GOVERNMENT ORDER BEARING G.O.NO| |R3(H)|87/07/CO-OP DATED 05.02.2007| |EXHIBIT-|TRUE COPY OF THE FEEDER CATEGORY SUB-RULES OF THE BANK,| |R3(A)|APPROVED VIDE ORDER CRP(2)-249/89 DATED 07.04.1989| ||ISSUED BY THE 1ST RESPONDENT, ALONG WITH ITS TYPED| ||LEGIBLE COPY.| |EXHIBIT-|TRUE COPY OF THE PLAINT IN ARC NO.148/2009 FILED BEFORE| |R3(B)|THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM| |EXHIBIT-|TRUE COPY OF THE PETITION AND AFFIDAVIT DATED 03.04.2021| |R3(C)|IN ARC 148/2019 SUBMITTED BY THE BANK TO SET ASIDE THE| ||AWARD BEFORE THE CO-OPERATIVE ARBITRATION COURT,| ||THIRUVANANTHAPURAM.| ----- ## **APPENDIX OF WP(C) 5456/2022** ## PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE ORDER NO CRP(2)-249/89 DATE 7.4.1989| |---|---| ||ISSUED BY THE 1ST RESPONDENT| |EXHIBIT P2|TRUE COPY OF THE PLAINT IN ARC NO 148/2009 FILED BY| ||THE PLAINTIFF BEFORE THE HON'BLE CO-OPERATIVE| ||ARBITRATION COURT, THIRUVANANTHAPURAM| |EXHIBIT P3|TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE| ||PETITIONER BANK IN ARC NO 148/2009 BEFORE THE HON'BLE| ||CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM| |EXHIBIT P4|TRUE COPY OF THE FORGED SETTLEMENT PROPOSAL SUBMITTED| ||BY THE 2ND RESPONDENT BEFORE THE ARBITRATION COURT| ||DATED NIL| |EXHIBIT P5|TRUE COPY OF THE ORDER DATED 14.2.2017 OF THE| ||ARBITRATION COURT, THIRUVANANTHAPURAM| |EXHIBIT P6|TRUE COPY OF THE PETITION AND AFFIDAVIT DATED| ||3.4.2021 SUBMITTED BY THE PETITIONER BANK| |EXHIBIT P7|TRUE COPY OF THE REPRESENTATION DATED 8.3.2021| ||SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST| ||RESPONDENT| |EXHIBIT P8|TRUE COPY OF THE JUDGMENT DATED 23.6.2021 IN WPC NO| ||8156/2021 OF THIS HON'BLE COURT| |EXHIBIT P9|TRUE COPY OF THE JUDGMENT DATED 14.9.2021 IN WPC NO| ||14667/2021 OF THIS HON'BLE COURT| |EXHIBIT P10|TRUE COPY OF THE JUDGMENT DATED 16.9.2021 IN R.P NO| ||588/2021 IN WPC NO 8156/2021 OF THIS HON'BLE COURT| |EXHIBIT P11|TRUE COPY OF THE DECISION NO VI OF THE BOARD OF| ||DIRECTORS OF THE BANK IN MEETING NO XVIII, DATED| ||29.9.2021| |EXHIBIT P12|TRUE COPY OF THE STATEMENT DATED 11.11.2021 SUBMITTED| ||BY THE PETITIONER BANK BEFORE THE 1ST RESPONDENT| **APPENDIX-WP(C) 5456/2022 -2-** EXHIBIT P13 TRUE COPY OF THE ORDER CRP(1) 233/2021 DATED 15.11.2021 ISSUED BY THE 1ST RESPONDENT EXHIBIT P14 TRUE COPY OF THE BALANCE SHEET OF THE PETITIONER BANK AS ON 31.3.2021 RESPONDENT EXHIBITS EXHIBIT R2-A TRUE COPY OF THE MINUTES OF THE IVTH MEETING DATED 11-07-2016 OF THE PETITIONER BANK. RESPONDENT EXHIBITS EXHIBIT R2-B TRUE COPY OF THE MINUTES OF THE XIIITH MEETING DATED 25-03-2017 OF THE PETITIONER BANK. EXHIBIT R2-C TRUE COPY OF THE COMMUNICATION NO.BALA.1093/17 DATED 02-07-2019 OF THE ASSISTANT REGISTRAR OF CO-OP SOCIETIES. RESPONDENT EXHIBITS EXHIBIT R1-D TRUE COPY OF THE REPRESENTATION DATED 06-07-2019 OF THE SECOND RESPONDENT BEFORE THE PETITIONER. EXHIBIT R2-E TRUE COPY OF THE ORDER NO.C.R.P.(2) 1472/89 DATED 0806-1989 OF THE 1ST RESPONDENT. EXHIBIT R2-F TRUE COPY OF THE ORDER NO.B.L.M. 1374/11 DATED 27-072011 OF THE ASSISTANT REGISTRAR ON PAY FIXATION. EXHIBIT R2-G TRUE COPY OF THE RESOLUTION NO. VII DATED 14-05-2014 OF THE PETITIONER BANK. RESPONDENT EXHIBITS EXHIBIT EXHIBIT R1(A) RESPONDENT EXHIBITS EXHIBIT R2-H TRUE COPY OF THE ACQUITTANCE DATED 14-05-2014 OF B.VIJAYAN. ## **APPENDIX-WP(C) 5456/2022 -3-** ## PETITIONER EXHIBITS EXHIBIT-P15 TRUE COPY OF THE GOVERNMENT ORDER BEARING G.O.NO 87/07/CO-OP DATED 05.02.2007. RESPONDENT EXHIBITS EXHIBIT R2(I) TRUE COPY OF THE ORDER DATED 03/02/2022 IN THE APPLICATION TO CONDONE THE DELAY I.A 2/2021 IN ARC 148/2009 BEFORE THE CO-OPERATIVE ARBITRATION COURT EXHIBIT R2(J) TRUE COPY OF THE ORDER DATED 03/02/2022 IN I.A. 1/2021 IN ARC 148/2009 DISMISSING THE RESTORATION PETITION BEFORE THE CO-OPERATIVE ARBITRATION COURT PETITIONER EXHIBITS EXHIBIT P16 TRUE COPY OF THE ORDER DATED 03.02.2022 IN I.A.NO.1 OF 2021 IN ARC NO. 148/2009 OF THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM EXHIBIT P17 TRUE COPY OF THE ORDER DATED 03.02.2022 IN I.A.NO.2 OF 2021 IN ARC NO. 148/2009 OF THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM -----