Chadayamangalam Rubber Marketing Co-Operative Society Ltd. v. Kerala Co-operative Tribunal, Thiruvananthapuram; Kerala Co-operative Arbitration Court, Thiruvananthapuram; Parameswaran Pillai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 28TH NOVEMBER 2011 / 7TH AGRAHAYANA 1933** **OP(C).No. 1384 of 2011(O)** **------------------------------------** **[R.P.NO.58/2010 OF THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM]** **....................** **PETITIONER:** - **-------------------** **CHADAYAMANGALAM RUBBER MARKETING CO-OPERATIVE SOCIETY LTD.NO.Q374, REPRESENTED BY ITS SECRETARY, CHADAYAMANGALAM P.O., KOLLAM DISTRICT.** **BY ADVS. SRI.V.G.ARUN, SRI.T.R.HARIKUMAR.** **RESPONDENTS:** **------------------------** **1. THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM-695 001.** **2. THE KERALA CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM-695 001.** ## **3. PARAMESWARAN PILLAI,** **PADINJATTINKARA HOUSE, ELAMAKKODU, CHADAYAMANGALAM P.O., KOLLAM DISTRICT-691 534.** **R3 BY SRI.N.DHARMADAN, SENIOR ADVOCATE, ADV. SMT.D.P.RENU.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P.(C).NO.1384/2011-O:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** ## **EXT.P.1: COPY OF THE PLAINT IN A.R.C. NO. 76/2003.** **EXT.P.2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN A.R.C. NO. 76/2003 DTD. 06/04/2004.** **EXT.P.3: COPY OF THE APPLICATION FOR AMENDMENT OF PLAINT IN A.R.C. NO.76/2003 DTD. 03/03/2009.** **EXT.P.4: COPY OF THE OBJECTION DTD. 07/08/2009 IN A.R.C. NO. 76/2003.** **EXT.P.5: COPY OF THE ORDER IN I.A. 146/2009 IN ARC.76/2003 DTD. 18/03/2010.** **EXT.P.6: COPY OF THE ORDER IN R.P. NO.58/2010 DTD. 28/10/2010.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R3.A: COPY OF THE OBJECTION IN A.R.C. NO.76/2003 DT. 07/08/2009 BEFORE THE CO-OP: ARBITRATION COURT.** **EXT.R3.B: COPY OF THE ADDL. WRITTEN STATEMENT IN A.R.C. NO. 76/2003 DT. 11/1/2011 BEFORE THE CO-OP: ARBITRATION COURT.** **EXT.R3.C: COPY OF THE PETITION IN A.R.C.NO.76/2003 DT. 18/11/2010 OF THE CO-OP: ARBITRATION COURT.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **Prv.** ## **THOMAS P. JOSEPH, J.** ## **----------------------------------------** ## **O.P(C).No.1384 of 2011** ## **---------------------------------------** ## **Dated this 28[th] day of November, 2011** ## **JUDGMENT** The question urged for a decision in this proceeding is whether the Arbitration Court appointed by virtue of amendment to Sec.69 of the Kerala Co-operative Societies Act (for short, "the Act”) has power to allow amendment of pleadings?. 2. Third respondent joined the service of petitioner, a society registered under the Act as clerk on 11.05.1967 and was promoted as Secretary on 01.07.1983. While so, pursuant to a departmental enquiry conducted in the petitioner – society it was (allegedly) revealed that third respondent misappropriated huge amounts. He was placed under suspension on 21.10.2000 followed by a dismissal on 25.02.2002. Third respondent filed A.R.C.No.76 of 2003 before the Arbitration Court challenging his dismissal and seeking reinstatement with all monetary benefits due to him. Petitioner filed Ext.P2, written statement in challenge of the claim made by the third respondent. While the matter was pending before the Arbitration Court, respondent filed Ext.P3, application for amendment of the plaint stating that during pendency of proceeding before the Arbitration Court, he O.P(C).No.1384 of 2011 -: 2 :- attained superannuation on 24.09.2005 and hence he is entitled to certain monetary benefits. The application was objected by Ext.P4, where petitioner contended that the Arbitration Court has no power to allow amendment of pleadings except as regards any errors in the pleadings due to arithmetical or other mistakes and that amendment sought for is in the manner of totally altering the case. It would appear that Ext.P3, application was not pursued for some time and in the meantime, parties went into evidence on the dispute in the claim. While so, the Arbitration Court heard the matter and allowed the application for amendment (I am told that the amendment has already been carried in the plaint to which petitioner has filed an additional written statement as well and filed an application to reopen the evidence to adduce further evidence). Petitioner challenged that order before the Cooperative Tribunal (for short, "the Tribunal”) in revision. The Tribunal dismissed the revision. That order is under challenge in this proceeding. 3. Learned counsel for petitioner has contended that it is by virtue of amendment to Sec.69 of the Act with effect from 02.01.2003 that the Arbitration Court came into existence and that its power is controlled by Sec.70 of the Act. Learned counsel O.P(C).No.1384 of 2011 -: 3 :- contends that Sub Sec.(3) of Sec.70A of the Act required the Government to make Rules for regulating the procedure and disposal of business of the Arbitration Court, no such Rules are so far framed and hence Rule 67 of the existing Rules should apply. That Rule also does not confer power in the Arbitration Court to allow amendment of pleadings. Hence the order passed by the Arbitration Court as confirmed by the Tribunal is unsustainable. Though learned counsel has also a contention that the Arbitration Court has no power to deal with monetary claims, that matter is not required to be undergone into this proceeding since third respondent challenged his dismissal from the service of petitioner and claimed reinstatement with back wages and other benefits and amendment sought for also is with respect to the benefit which third respondent would get if ultimately his dismissal from the service of petitioner is found to be invalid. Therefore that contention of petitioner is not required to be gone into in this proceeding. 4. Learned counsel for third respondent has contended that in Ext.P4, objection, there is no dispute regarding the power of the Arbitration Court to allow amendment it is conceded that atleast for correction of errors due to arithmetical or other O.P(C).No.1384 of 2011 -: 4 :- mistakes, the Arbitration Court has the power to allow amendment. According to the learned counsel, the jurisdiction of the Arbitration Court to allow amendment therefore is not under challenge. Learned counsel argued that there is no prohibition against the Arbitration Court allowing amendment of pleadings. Reliance is placed on the decision in **Jacob Varkey Vs. Idukki District Co-operative Bank Ltd.** _**(**_ **2001(2) KLT 77)** . 5. It is appropriate to refer to the relevant provisions of the Statute before the question whether the Arbitration Court has power to allow amendment is decided. Sec.69(2)(d) of the Act (which was brought in by amendment) states that any dispute arising in connection with employment of officers and servants of the different classes of societies specified in sub sec. (1) of Sec.80 including their promotion and inter se seniority shall be decided by the Arbitration Court. Sec.70(2) of the Act deals with the power and states that the Arbitration court may, pending award of a dispute referred to it under sec.69, make such interlocutory orders as it may deem necessary in the interests of justice. Sub Sec.(3) says that the Arbitration Court shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 while trying the suit in respect of the O.P(C).No.1384 of 2011 -: 5 :- ## following matters; (i) the summoning and enforcing the attenance of any defendant or witness and examining the witness on oath; (ii) the discovery and production of any document or other material object producible as evidence; (iii) the reception of evidence on affidavits; (iv) issuing of any commission for the examination of any witness; and (v) any other matter which may be prescribed. Sub Sec.(3) of Sec.70A of the Act states that the Government shall make rules for regulating the procedure and disposal of business of the Co-operative Arbitration Court. Learned counsel for petitioner says that no rules have been framed so far. 6. Reference can be made to Rule 67 of the existing Rules. That rule deals with reference of disputes, payment of expenses and decisions on disputes. Sub Rule (5) states that the Arbitration Court or the Registrar or the person deciding the disputes or the Arbitrator shall have power to administer oaths, to require the attendance of all parties concerned and of witnesses and to require the productions of all books and documents relating to the matter of the dispute. Sub Rule (6) O.P(C).No.1384 of 2011 -: 6 :- states that the Arbitration Court, the Registrar or the person deciding the dispute or the arbitrator may of his own motion or on the application of any party to the dispute, inspect any property which is the subject matter of the dispute in the manner stated therein. Sub rule (7) deals with recording of evidence. Rule 67 does not empower the Arbitrator to allow amendment of pleadings. 7. Learned counsel for third respondent has invited my attention to the decision in **Jacob Varkey v. Idukki District Cooperative Bank Ltd. (supra** ) where referring to Sec.98 of the Act it is held that jurisdiction of Arbitrator is not confined to those powers specified in Sec.98 and that the arbitrator has the power to grant permission to the plaintiff to withdraw the case with liberty to file a fresh suit after impleading proper parties. The Division Bench has taken the view that though allowing the plaintiff to withdraw the case with liberty to file fresh suit is not one of the enumerated powers of the Arbitrator under Sec.98 of the Act , the functions of the arbitrator under the Act is that of the original civil court in deciding the case and decision of the court does not mean merely the final decision, it takes with it the entire stages leading to a decision. The Division Bench took the O.P(C).No.1384 of 2011 -: 7 :- view that the Arbitrator is fully justified in allowing withdrawal of the suit with liberty to file fresh suit. The Division Bench hastened to add that, “It is significant to note that none of the statutory rights of the appellants/defendants is in any way affected in the process”. 8. Learned counsel for petitioner has pointed out that Sec.98 of the Act has no application since it is thereafter that Sec.69 was amended and power of the Arbitration Court is contained in Sec.70 of the Act and which is already referred to above and hence the decision has no application. 9. Assuming so, the principle laid down by the Division Bench in **Jacob Varkey v. Idukki District Co-operative Bank** **Ltd. (supra)** as regards power of the arbitrator under Sec.98 of the Act is applicable to the present proceeding as well for, the phraseology used in Sec.98 is similar to the phraseology used in Sec.70 of the Act while dealing with the power of the arbitration court. I must also take note of two other decisions this Court has rendered, the first one being **Thankam R. Pillai Vs. Arbitrator (1996(1) KLT 225)** where the question concerned was whether by virtue of power conferred under Sec.70 of the Act, the arbitrator has the power to implead legal representatives of O.P(C).No.1384 of 2011 -: 8 :- deceased plaintiff in a proceeding pending before it (notwithstanding that power to implead is not specifically provided in Sec.70). The Division Bench referred to the various decisions including **Cheru Ouseph Vs. Kunjipathumma (1981 KLT 495)** where, M.P. Menon, J. held: “...... in respect of procedural matters "all powers which are not specifically denied by the statute or the statutory rules should be vouchsafed to a Tribunal that it may effectively exercise its judicial function”. The Division Bench referred to the decision of the Supreme court in **Gujarat Steel Tubes Ltd. etc. v. Gujarat Steel Tubes Mazdoor Sabha and others (AIR 1980 SC 1896)** where it was held, "a Tribunal in its wider connotation, embraced every adjudicatory organ including an Arbitrator". The observations of the Supreme Court in paragraph 86 to the following effect was quoted by the Division Bench; “Then what is the natural meaning of the expression "Tribunal"? A "Tribunal" literally means a seat of justice. May be, justice is dispensed by a quasi-judicial body, an arbitrator, a commission, a court or other adjudicatory organ created by the State. All these are tribunals and O.P(C).No.1384 of 2011 ## -: 9 :- naturally the import of the word embraces an arbitration tribunal." In the light of the above decisions and the principles stated therein the Division Bench in **Thankam R. Pillai v. Arbitrator (supra)** held that arbitrator has power to implead legal representatives of a deceased petitioner in a proceeding pending before him. 10. That decision was followed by a learned Single Judge in **Paul v. Asst. Registrar (1998(2) KLT 449).** There of course, the question concerned was whether having regard to Rule 67(4)(a) & (b) the Registrar who has the power to pass an ex parte order has the power to set aside the ex parte order (such a power is not specifically provided in the relevant Rule). 11. No doubt in **Paul v. Asst. Registrar (supra)** the question concerned was the power of the Arbitration Court to set aside the ex parte award when such Court is invested with power to pass ex parte award. But, the principle applied therein is the one upheld by the Division Bench in **Thankam R. Pillai Vs. Arbitrator (supra).** Thus, it is not as if the statutory Tribunal is not invested the necessary power to pass orders to do justice between the parties before it, so far as such power is not O.P(C).No.1384 of 2011 -: 10 :- prohibited by the provisions of the Act or the Rules. As held in **Cheru Ouseph Vs. Kunjipathumma (supra)** the Arbitration Court must have all the powers which are not specifically denied to it by the Statute or the statutory rules so that it may effectively exercise its judicial function. 12. In the light of the above decisions, that the power to amend pleadings is not specifically conferred on the Arbitration Court either under Sec.70 of the Act or under Sec.67 of the Rules need not deter the Arbitration Court from allowing amendment of pleadings in appropriate cases where the ends of justice require such a course of action so far as exercise of such a power is not prohibited either by the Act or the Rules as it exists now. 13. Going back to the facts of the case, I must bear in mind that it was challenging the dismissal of petitioner from the service on 25.02.2002 that third respondent filed the proceeding before the Arbitration Court and it is while that proceeding was pending that he attained superannuation on 24.05.2002. Consequent to that superannuation he wanted to claim certain additional reliefs in the pending proceeding. I am inclined to think (leaving the question whether monetary claims could be granted by the Arbitration Court or not to be decided by that O.P(C).No.1384 of 2011 -: 11 :- authority at the appropriate stage) that it was within the power of the Arbitration Court to allow the amendment. Viewed in that line, the challenge to the order passed by the Arbitration court as confirmed by the Tribunal in revision has to fail. Original petition is dismissed. **(THOMAS P. JOSEPH, JUDGE)** Sbna/-