D. A. Rajithalal vs. Assistant Registrar of Co-operative Societies (General) & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 08TH DAY OF DECEMBER 2020 / 17TH AGRAHAYANA, 1942** ## **WP(C).No.24980 OF 2020(V)** ## **PETITIONER:** **D.A.RAJITHALAL AGED 56 YEARS** **CHIEF ACCOUNTANT/MANAGING DIRECTOR IN CHARGE, ANAD FARMERS SERVICE CO-OPERATIVE BANK LTD.NO.919, ANAD P.O., NEDUMANGAD, THIRUVANANTHAPURAM, RESIDING AT CHANDRAKANTHAM, PUTHENPALAM, ANAD P.O., NEDUMANGAD, THIRUVANANTHAPURAM, PIN-695 544.** **BY ADVS. SRI.T.R.HARIKUMAR SRI.ARJUN RAGHAVAN** ## **RESPONDENTS:** - **1 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) NEDUMANGAD, THIRUVANANTHAPURAM, PIN-695 545.** - **2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THIRUVANANTHAPURAM, PIN-695 023.** - **3 THE REGISTRAR OC CO-OPERATIVE SOCIEITES, THIRUVANANTHAPURAM, PIN-695 001.** - **4 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, COOPERATION (C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** - **5 THE ANAD FARMERS SERVICE CO-OPERATIVE BANK LTD.NO.919, REPRESENTED BY ITS MANAGING DIRECTOR, ANAD P.O., NEDUMANGAD, THIRUVANANTHAPURAM, PIN-695 544.** - **6 THE MANAGING COMMITTEE OF THE ANAD FARMERS SERVICE CO-OPERATIVE BANK LTD.NO.919,** **REPRESENTED BY ITS PRESIDENT, ANAD P.O., NEDUMANGAD, THIRUVANANTHAPURAM, PIN-695 544.** **WP(C).No.24980 OF 2020(V)** **2** **7 LAILA BEEVI, AJNA COTTAGE, ATTINPURAM, PANAVOOR P.O., THIRUVANANTHAPURAM, PIN-695 568.** **R5-6 BY SRI.THOMAS ABRAHAM, SC, ANAD FARMERS SERVICE CO.OPERATIVE BANK LTD.** **R1 TO 4 - SRI.B.HARISHKUMAR,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.24980 OF 2020(V)** **3** ## **JUDGMENT** ## **Dated this the 8th day of December 2020** The question involved in this case is whether the impugned order Ext.P5 passed by the Joint Registrar while exercising power under Rule 176 of the Co-operative Societies Rules ('KCS Rules' for short) is constitutionally valid or not. The facts in brief are as follows: The petitioner is an employee of Anad Farmers Service Cooperative Bank Limited, 5[th] respondent. He joined the service of the Bank as Junior clerk in 1985. Later he was promoted as Senior Clerk in 1998. After a span of six (6) years the petitioner was promoted as Head Clerk in 2008, and was further promoted as Internal Auditor/Branch Manager. The petitioner is having Secondary School Leaving Certificate (SSLC) and Junior Diploma in Co-operation (JDC) and also possess Degree and Post Graduate Degree in History from Annamali University, approved by the UGC. On 04.08.2014, the petitioner was promoted as Chief **WP(C).No.24980 OF 2020(V)** **4** Accountant, against which the 7[th] respondent along with two employees preferred a complaint before the 1[st] respondent ie., Assistant Registrar of Co-operative Societies (General) and also approached this Court vide W.P.(C).No.26904/2014 for expeditious disposal of representation. The 1[st] respondent vide order dated 28.12.2015, cancelled the promotion. On the basis of the above order the society reverted the petitioner. Challenging the aforesaid actions, petitioner filed W.P.(C).No.535/2016 and vide judgment dated 05.08.2019 (Ext.P2) it was disposed of with a direction to the Joint Registrar to take a decision whether any action under Rule 176 of the KCS Rules can be taken in service matters in view of the directions contained in the judgment in W.P. (C).No.14939/2017 and connected cases. 2. Sri.Arjun Raghavan, learned counsel appearing on behalf of the petitioner submits that vide impugned order, Registrar has totally overlooked the provisions of Section 69 (2)(d) of the Co-operative Societies Act and has erroneously exercised the powers under Rule 176 which only confines for **WP(C).No.24980 OF 2020(V)** **5** the rescinding of the resolutions. The complete procedure has been prescribed under Section 69 pertaining to the service matters consisting of monetary and non monetary reliefs. Power under Rule 176 is to be sparingly used only when the resolutions are not in accordance with the provisions of the Act. In support of the contention relies upon the _ratio decidendi_ culled out by this Court in _**Raveendran v. State of Kerala**_ [2007 (3) KLT 558 (DB)]. 3. Sri.B.Harish Kumar, learned Government Pleader submits that the order impugned has been passed in accordance with the direction in Ext.P2 and therefore, the petitioner having participated in the proceedings cannot volte face and challenge the same under Article 226 of the Constitution of India and urges this Court for dismissal of this writ petition. 4. I have heard the learned counsel for the parties and appraised the paper book. The controversy with regard to the service matter came to be pointed in the Division Bench judgment in _**Raveendran**_ (supra) wherein after **WP(C).No.24980 OF 2020(V)** **6** discussing the matter in detail in paragraph 4, it was held that any dispute arising in connection with the employment officer and servants of different classes of society specified in sub-section 1 of Section 80 of the KCS Act including their promotion and inter se seniority have to be decided by the Arbitration court. The Registrar in the instant case has in my view exceeded jurisdiction in exercising the power under Rule 176 of the KCS Rules which only deals with the rescinding of resolutions but not passing effective orders taking away the right of affected parties. Argument of Sri.B. Harish Kumar, that the Registrar had only complied with the direction of the Court contained Ext.P2 judgment, in my view, is not sustainable for the reason that this Court ordered the Registrar to look into the matter by putting a caveat but the Registrar failed to take into consideration the jurisdiction/ arbitration as envisaged under Section 69. In respect of the grievance of the third party aggrieved of the promotion, the Registrar would not have power it would be the domain of the Arbitration Court. The aforementioned **WP(C).No.24980 OF 2020(V)** **7** observation of mine is derived from the ratio decidendi culled out in _**Swathy Mohan v. Joint Registrar of Co-operative Societies (General)**_ [2019 (4) KLT 583] Paragraph 22 reads as under: 22. Hence, the apparently inflexible view taken by the learned Division Bench that in service matters R.176 of the K.C.S. Rules cannot be involved, tested from the unequivocal declarations of the Hon'ble Supreme Court in Akalakunnam (supra) can only mean that when a complaint is made by a person, either claiming a residual benefit for himself or where it would require detailed evaluation and factual assessment, the Joint Registrar must refuse to deal with it and relegate the disputant to the proceedings under S.69 of the K.C.S. Act or deal with it under Ss.65 or 66 thereof.” For the reason aforementioned, the impugned order is not sustainable and accordingly, set aside. This writ petition is allowed. Sd/- ## **AMIT RAWAL** ## **JUDGE** nak **WP(C).No.24980 OF 2020(V)** **8** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORDER NO.CRP (2) 2476/2015/K.DIS DATED 28.12.2015 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2 A TRUE COPY OF THE JUDGMENT DATED 05.08.2019 IN WPC NO.535 OF 2016. EXHIBIT P3 A TRUE COPY OF THE NOTICE NO.CRP(2) 2476/15 DATED 26.06.2020 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDNET. EXHIBIT P5 A TRUE COPY OF THE ORDER NO.CRP(2) 2476/15/K.DIS DATED 05.11.2020 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P6 A TRUE COPY OF THE EQUIVALENCY CERTIFICATE ISSUED BY THE UNIVERSITY OF KERALA DATED 15.05.2017 TO THE PETITIONER.**