C. Ravidasan Pillai v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **WEDNESDAY, THE 20TH DAY OF NOVEMBER 2013/29TH KARTHIKA, 1935** ## **WP(C).No. 16530 of 2013 (M)** **----------------------------** **PETITIONER :** - **----------------------** **C.RAVIDASAN PILLAI, S/O.CHITHAMBARAN PILLAI, AGED 44, UDUMBANAT PALLIPPURAM VILLAGE AND POST, CHERTHALA TALUK ALAPPUZHA DISTRICT - 688 541.** **BY ADVS.DR.V.N.SANKARJEE SMT.R.UDAYA JYOTHI** ## **RESPONDENT(S) :** - **----------------------------** ## **1. THE STATE OF KERALA,** - **REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM - 695 001.** **3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, THRISSUR - 680 001.** **4. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, THRISSUR - 680 001.** **5. INDIA COFFEE BOARD WORKERS CO-OPERATIVE SOCIETY LTD NO.4227, P.B. NO.184, THRISSUR 680 001,** **REPRESENTED BY ITS SECRETARY.** ## ***ADDL. R6 TO R9 IMPLEADED** - ***6. THE PRINCIPAL SECRETARY TO INDUSTRIES DEPARTMENT GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** - ***7. THE DIRECTOR OF INDUSTRIES AND COMMERCE** - **AND INDUSTRIES DEPARTMENT, THRISSUR.** - ***8. THE JOINT DIRECTOR OF INDUSTRIES AND COMMERCE, THRISSUR.** **...2/-** **WP(C).No. 16530 of 2013 (M) -2-** ## ***9. THE GENERAL MANAGER,** **DISTRICT INDUSTRIES CENTRE, THRISSUR.** ***ARE IMPLEADED AS ADDITIONAL RESPONDENTS 6 TO 9 AS PER ORDER DATED 27.08.2013 IN IA 11639/2013.** **R1 TO R4 & R6 TO R9 BY GOVT. PLEADER SRI. K.C. VINCENT R5 BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-11-2013, ALONG WITH WP(C) NO. 18498/2013 & WP(C) NO. 18499/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...3/-** **WP(C).No. 16530 of 2013 (M) ----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **-----------------------------------------** **EXT.P1: TRUE COPY OF THE INDENTITY CARD DATED 16/6/2004 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXT.P2: TRUE COPY OF THE CIRCULAR NO.18/1991 DATED 7/6/1991 ISSUED BY THE 2ND RESPONDENT. EXT.P3: TRUE COPY OF THE CIRCULAR NO.11/1999 DATED 23/3/1999 ISSUED BY THE 2ND RESPONDENT. EXT.P4: TRUE COPY OF THE CIRCULAR NO.14/2010 DATED 19/3/2010 ISSUED BY THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF THE NOTIFICATION/CIRCULAR DATED 11/6/2013 ISSUED BY THE 5TH RESPONDENT. EXT.P5(a): TRUE COPY OF THE APPLICATION FORM ISSUED ALONG WITH EXT.P5 EXT.P6: COPY OF THE ORDER DATED 25.10.2012 PASSED BY THE HONOURABLE KERALA STATE HUMAN RIGHTS COMMISSION. EXT.P7: COPY OF THE ORDER/LETTER NO. B2/9876/13 DATED 28-10-2013 OF THE 9TH RESPONDENT. EXT.P8: COPY OF THE INFORMATION - LETTER NO. B2/7858/13 DATED 26-8-2013 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER ATTACHED TO THE OFFICE OF THE 9TH RESPONDENT. EXT.P8(a): COPY OF THE PETITIONER'S APPLICATION DATED 13-8-2013 UNDER THE R.T. ACT. EXT.P9: COPY OF THE REQUEST DATED 16.11.2013 MADE BY THE PETITIONER TO THE 9TH RESPONDENT. EXT.P10: COPY OF THE LETTER DATED 16.11.2013 ISSUED BY THE 9TH RESPONDENT.** **RESPONDENT(S)' EXHIBITS :** **--------------------------------------------** **EXT.R5(a) COPY OF NOTIFICATION NUMBER 13364/A1/ID DATED 10.7.69 PUBLISHED IN KERALA GAZETTE DATED 22.7.69.** **EXT.R5(b) COPY OF CERTIFICATE BEARING NO. DR/2010 ISSUED BY DEPUTY REGISTRAR, DISTRICT INDUSTRIES CENTRE ON 18.2.2010. EXT.R5(c) COPY OF ORDER ISSUED BY GENERAL MANAGER DISTRICT INDUSTRIES CENTRE, THRISSUR (REGISTRAR) BEARING NO. B2/2740/11 DATED 26.4.2011.** **(Contd...)** ## **WP(C).No. 16530 of 2013 (M)** **EXT.R5(d) COPY OF CERTIFICATE ISSUED BY DEPUTY REGISTRAR DISTRICT INDUSTRIES CENTRE, THRISSUR DATED 13.1.2010.** **EXT.R5(e) COPY OF LETTER ISSUED BY THE GENERAL MANAGER OF DISTRICT INDUSTRIES CENTRE ON 23.3.06. EXT.R5(f) COPY OF APPLICATION FOR EMPLOYMENT SUBMITTED BY MR. HARILAL S. DATED 12.4.05.** **EXT.R5(g) COPY OF RECOMMENDATION LETTER ISSUED BY THE PETITIONER FOR HARILAL TO THE PRESIDENT OF THE 5TH RESPONDENT DATED 12.4.05.** **EXT.R5(h) COPY OF APPOINTMENT ORDER OF MR.HARILAL ISSUED BY THE 5TH RESPONDENT ON 24.8.05.** - **EXT.R5(i) COPY OF APPLICATION FOR EMPLOYMENT SUBMITTED BY MR. HAREESH KUMAR DATED 26.11.2010.** **EXT.R5(j) COPY OF APPOINTMENT ORDER OF MR. HAREESH KUMAR ISSUED BY THE 5TH RESPONDENT ON 23.5.2011.** **EXT.R5(k) COPY OF PETITION FILED BY PETITIONER BEFORE THE HUMAN RIGHTS COMMISSION DATED NIL.** **EXT.R5(l) COPY OF NOTICE BEARING NO. HRMP 4200/12/ALPY DATED 7.9.12 ISSUED BY THE COMMISSION TO THE 5TH RESPONDENT.** **EXT.R5(m) COPY OF REPORT SUBMITTED BY THE 5TH RESPONDENT BEFORE HUMAN RIGHTS COMMISSION ON 26.9.12.** **EXT.R5(n) COPY OF SUSPENSION ORDER OF THE PETITIONER ISSUED BY THE 5TH RESPONDENT ON 15.5.13.** **EXT.R5(o) COPY OF MEMO OF CHARGES PREPARED BY THE SUBCOMMITTEE AGAINST THE PETITIONER ON 26.6.13.** **EXT.R5(p) COPY OF REPLY DATED 31.10.13 SUBMITTED BY 5TH RESPONDENT TO THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE. EXT.R5(q) COPY OF LETTER FILED BY 5TH RESPONDENT BEFORE THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE ON 19.11.13.** ## **//TRUE COPY//** **P.A. TO JUDGE** **Mn** ## **K.VINOD CHANDRAN, J.** --------------------------------------- ## **W.P.(C)Nos.16530, 18498 & 18499 of 2013** ------------------------------------------------------Dated this the 20[th] day of November, 2013 ## **JUDGMENT** The petitioners in the above writ petitions challenge the notification, issued by the respondent Society, for appointment to the post of General Workers, produced as Ext.P5 in W.P.(c) No.16530 of 2013. The said writ petition is filed by an employee of the respondent Society against whom disciplinary proceedings are said to be initiated, which proceedings are not the subject matter of the present writ petition. The petitioners in both the other writ petitions are aspirants to the post of General Workers in the Society. The _locus standi_ of the petitioner in W.P.(c) No.16530 of 2013 is highly suspect, but since aspirants too challenge the selection, this Court is persuaded to consider the issue raised. 2. The main grievance of the petitioners, is that, the notification is issued in violation of the Kerala Co-operative Societies Act, 1969(hereinafter referred to as 'the Act' for short) and the Kerala State Co-operative Societies Rules,1969 W.P.(C)Nos.16530, 18498 & 18499 of 2013 : 2 : (hereinafter referred to as 'the Rules' for short) as also the notifications issued by the Registrar of Co-operative Societies. The learned counsel for the petitioners relies upon _**Chellappan v. Director of Handlooms**_ **(1983 KLT 912)** to contend that despite the respondent Society, being an Industrial Co-operative Society, the Act and Rules as also the Circulars issued under the Act would be squarely applicable to the Society. The petitioners rely upon Ext.P2, P3 and P4 Circulars issued by the Registrar under Section 66A of the Co-operative Societies Act. Ext.P2 stipulates that the application for the post shall be invited through advertisement in dailies having wide circulation in the area and also prescribed that the conditions with regard to age limit, qualifications, mode of appointment etc. shall be as laid down in Rule, 183, 186 and 187 of the Rules. Exts.P3 and P4, in fact, is a reaffirmation of Ext.P2 circular. 3. The learned counsel appearing for the respondent Society, however, would contend that though it has to be conceded that the respondent Society is regulated by the provisions of the Act and the Rules, the Circulars issued by the W.P.(C)Nos.16530, 18498 & 18499 of 2013 : 3 : Registrar(General) would not be applicable. The respondent Society is an Industrial Co-operative Society which is not under the administrative control of the Co-operative Department but under the Industries Department with the General Manager functioning as its Registrar. The learned counsel would also contend that the appointments sought to be made are to menial jobs of cleaning and sweeping, for which they give notice only on the notice board of their units. It is also undertaken that, if at all, the notification is against the Act or Rules, the same would be rectified or in the alternative the respondent Society would seek exemption from the provisions of the Act, as has been provided in Section 101 of the Act. 4. The petitioners contention is that by Ext.P10, the Circulars Exts.P2, P3 and P4 have been extended to the Industrial Co-operative Societies also. Admittedly, the Registrar of Co-operative Societies has no control over the respondent Society since the same is an Industrial Co-operative Society and the General Manager, District Industries Centre(DIC) is the Registrar of the respondent Society. _**Chellappan's case**_ W.P.(C)Nos.16530, 18498 & 18499 of 2013 : 4 : ( _supra_ ) was one in which two Secretaries of an Industrial Co-operative Society claimed that the retirement age provided under Rule 183 in Chapter XV of the Rules was not applicable to their Society. The Industrial Co-operative Society does not come under any of the categories of Societies under Appendix-III of the Rules, was the contention. This Court found that Chapter XV is not exclusively made applicable to Societies classified as per Section 80 and under Appendix-III. While classification is only of the Societies under Appendix-III; an Industrial Co-operative Society is bound by the provisions of the Act and Rules, was the finding, despite it not figuring in Appendix-III. As a corollary the Industrial Co-operative Societies being not classified under Appendix-III and not placed under the Administrative Control of the Co-operative Department, the Circulars issued by the Registrar of Co-operative Department would be inapplicable. 5. Ext.P10 letter is said to be issued by the General Manager, DIC, Thrissur, who admittedly is the Registrar of the Industrial Co-operative Societies. Definitely, it cannot for a moment be disputed that the General Manager, DIC, who is W.P.(C)Nos.16530, 18498 & 18499 of 2013 : 5 : designated as the Registrar of Industrial Co-operative Societies, would have the power to issue Circulars by way of giving general directions and guidelines, under Section 66A of the Act, to regulate the functioning of the Societies coming under such categorization. However, exercise of power under Section 66A is one thing and the mere issuance of a letter wherein the Circulars issued by the Registrar of Co-operative Societies are said to be applicable is quite another aspect. In fact, the circulars referred to in Ext.P10 are specifically those produced by the petitioner as Exts.P2 to P4. This cannot be said to be a proper exercise of power under Section 66A of the Act. Ext.P10, by no stretch of imagination, can be considered to be a Circular issued under Section 66A of the Act. It is merely a letter issued to one of the petitioners herein stating that Exts.P2, P3 and P4 Circulars are applicable to the Industrial Co-operative Societies also. The intention of the authority who issued such a letter is definitely not issuance of general directions or guidelines but provide support to the petitioners to sustain their contentions in the present writ petition. Ext.P10, at best is the understanding W.P.(C)Nos.16530, 18498 & 18499 of 2013 : 6 : of the General Manager, DIC, and cannot be said to be a proper exercise of power under Section 66A of the Act. 6. In any event, the respondent Society having specifically undertaken before this Court that a fresh notification would be issued in accordance with the Act and Rules, this Court is of the opinion that the present writ petitions can be disposed of recording the undertaking. Needless to say that Ext.P5 notification would not be proceeded with. 7. The writ petitions are disposed of with the above observations and the respondent Society would be entitled to proceed with the selection process for appointment of General Workers in accordance with the Act and Rules unless otherwise exemption is obtained from the provisions of the Act and Rules. However, it is declared that Ext.P10 is of no consequence and cannot be treated as a Circular issued under Section 66A of the Act. The authorities under the Act and Rules should tread cautiously in issuing such communications. It is also relevant that the case was heard for a considerable length of time and Ext.P10 has been obtained after that, specifically to produce the W.P.(C)Nos.16530, 18498 & 18499 of 2013 : 7 : same before this Court. This Court normally would have called upon the author of Ext.P10 to explain the circumstance under which the same is issued. However, in the nature of the orders passed, this Court restrains itself from adopting such a procedure. The writ petitions are disposed of with the above observations and recording the undertaking of the respondent Society. Parties are left to suffer their costs. Sd/- **K.VINOD CHANDRAN, JUDGE.** ln