Dony John v Vazhappally Service Co-operative Bank Ltd. & Ors.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 20TH DAY OF DECEMBER 2018/29TH AGRAHAYANA, 1940** **WP(C).No. 21456 of 2018** ## **PETITIONER** **DONY JOHN, VAZHAPPALLY SERVICE CO-OPERATIVE BANK LTD.NO.K.108, VAZHAPPALLY P.O., CHANGANASSERI, KOTTAYAM, PIN-686103.** **BY ADVS.SRI.P.N.MOHANAN SRI.C.P.SABARI** **RESPONDENTS:** **1. VAZHAPPALLY SERVICE CO-OPERATIVE BANK LTD NO.108, REPRESENTED BY SECRETARY, VAZHAPPALLY P.O., CHANGANASSERI, KOTTAYAM, PIN-686103.** **2. THE MANAGING COMMITTEE OF VAZHAPPALLY SERVICE CO-OPERATIVE BANK LTD.NO.K.108, REPRESENTED BY PRESIDENT VAZHAPPALY P.O., CHANGANASSERI, KOTTAYAM, PIN-686103.** **3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM-686001.** **R1-R2 BY ADV. SRI.LAL GEORGE,SC VAZHAPPALLY CO.OP.BAN R3 BY GOVERNMENT PLEADER SMT.MABLE C. KURIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-12-2018, ALONG WITH WPC No.21568/2018 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)Nos.21456 & 21568/2018** -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 20TH DAY OF DECEMBER 2018/29TH AGRAHAYANA, 1940** **WP(C).No. 21568 of 2018 PETITIONERS** **1 VAZHAPPILLY SERVICE CO-OPERATIVE BANK LTD.NO.108 VAZHAPPALLY, CHANGANACHERRY-686103, KOTTAYAM, REPRESENTED BY ITS SECRETARY, SHINY SEBASTIAN.** ## **2 MANAGING COMMITTEE OF VAZHAPPALLY** **SERVICE CO-OPERATIVE BANK LTD. 108, VAZHAPPALLY, CHANGANACHERRY-686103, REPRESENTED BY ITS** **PRESIDENT K.J. CHACKO, KALLUKALAM HOUSE, VAZHAPPALLY, CHANGANCHERRY.** **BY ADV.SRI.LAL GEORGE,SC VAZHAPPALLY CO.OP.BANK** ## **RESPONDENTS:** ## **1. STATE OF KERALA** **REPRESENTED BY ITS SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695004.** **2. REGISTRAR OF CO-OPERATIVE SOCIETIES,** **THIRUVANANTHAPURAM-695004.** **3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOTTAYAM-686001.** ## **W.P.(C)Nos.21456** ## **& 21568/2018** -3- ## **4. DONNY JOHN,** **VALIYAVEETTIL HOUSE, VAZHAPPALLY, CHANGANACHERRY-686101.** **R4 BY ADV. SRI.P.N.MOHANAN** **R1 TO R3 BY GOVERNMENT PLEADER SMT.MABLE C. KURIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-12-2018, ALONG WITH WPC No.21456/2018 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)Nos.21456 & 21568/2018** -4- ## **JUDGMENT** Since common issue is raised in both the writ petitions, they were heard and are being disposed of by this common judgment. 2. **W.P.(C)No.21456 of 2018:** The petitioner who is an employee of the 1[st] respondent Bank, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the rules made thereunder, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding respondents 1 and 2 to permit him to join duty in the light of Ext.P10 order dated 14.06.2018 of the 3[rd] respondent Joint Registrar. The petitioner has also sought for an order directing respondents 1 and 2 to disburse his salary from the month February, 2018; a declaration that he is entitled to join as Secretary forthwith and to get salary from February, 2018; a writ of mandamus commanding the 3[rd] respondent Joint Registrar to take appropriate action against respondents 1 and 2 for non-compliance of Ext.P10 order. 2.1. On 28.06.2018, when this writ petition came up for ## **W.P.(C)Nos.21456 & 21568/2018** -5- admission, this Court admitted the matter on file. The learned counsel took notice for respondents 1 and 2 and the learned Government Pleader took notice for the 3[rd] respondent. The respondents were directed to file counter affidavit within three weeks. 2.2. A counter affidavit has been filed by respondents 1 and 2, opposing the reliefs sought for in this writ petition. 2.3. On 08.09.2018 when this writ petition came up for consideration along with W.P.(C)No.21568 of 2018, this Court passed an order, whereby the petitioner was directed to appear before the Superintendent, Medical College Hospital, Kottayam for medical examination by the Medical Board. The Medical Board, after examination was directed to issue a medical fitness certificate and a copy of which was ordered to be produced before this Court through the learned Government Pleader. Pursuant to the said order, the report of the Medical Board dated 24.09.2018 is placed on record along with a memo filed by the learned Government Pleader dated 16.10.2018. 3. **W.P.(C)No.21568 of 2018:-** This writ petition is one ## **W.P.(C)Nos.21456 & 21568/2018** -6- filed by Vazhappilly Service Co-operative Bank Ltd. and its Managing Committee, (who are respondents 1 and 2 in W.P. (C)No.21456 of 2018), seeking a writ of certiorari to quash Ext.P16 order dated 14.06.2018 of the 3[rd] respondent Joint Registrar (which is Ext.P10 order in W.P.(C)No.21456 of 2018). The petitioners have also sought for a declaration that Ext.P16 order is illegal and ultra vires to the provisions of the Kerala Cooperative Societies Act and the Rules made thereunder, and null and void; and an order of stay of operation and implementation of Ext.P16 order. 4. Heard the learned counsel for the petitioner in the respective writ petitions, the learned Government Pleader appearing for the official respondents and also the learned counsel for the party respondents. 5. The sole issue that arises for consideration in these writ petitions is as to the legality or otherwise of the order dated 14.6.2018 of the Joint Registrar of Co-operative Societies, which is Ext.P10 in W.P.(C)No.21456 of 2018 and Ext.P16 in W.P. (C)No.21568 of 2018. For the sake of convenience, parties and ## **W.P.(C)Nos.21456 & 21568/2018** -7- exhibits are referred to as they appear in W.P.(C)No.21456 of 2018. 6. The pleadings and materials on record would show that the petitioner joined the service of the 1[st] respondent Bank on 19.09.1986 as Junior Clerk. The petitioner possesses B.Com with Co-operation. He was promoted as Senior Clerk on 01.09.1989; as Accountant on 01.10.1997; as Branch Manager on 01.04.2004; and as Chief Accountant on 01.02.2012. He was promoted as Assistant Secretary on 01.04.2014. On 01.06.2016, on account of the retirement of the Secretary in office, the petitioner was promoted to that post. 7. According to the petitioner, on account of certain incidents, the Managing Committee started harassing him making false allegations. As the petitioner was not able to withstand the pressure, he made Ext.P1 request dated 09.12.2017 before the 2[nd] respondent to permit him to continue as Branch Manager. As the Managing Committee was not inclined to pass orders on Ext.P1 request, the petitioner obtained Ext.P2 medical certificate dated 20.01.2018 from one Dr.Shahul Ameen to show that he is ## **W.P.(C)Nos.21456 & 21568/2018** -8- suffering from depressive disorder. Based on the said medical certificate, the President of the 1[st] respondent Bank issued Ext.P3 order dated 01.02.2018, whereby he was permitted to work as Branch Manager/Internal Auditor and accordingly, he joined duty on 02.02.2018. Later, the petitioner applied for leave for 6 months from 03.02.2018. However, the 2[nd] respondent sanctioned only one month leave up to 03.03.2018. 8. After the expiry of the period of leave, the petitioner reported for duty on 05.03.2018, as 04.03.2018 was Sunday. But he was not permitted to join duty, in the absence of a fitness certificate. In such circumstances, the petitioner produced Ext.P4 medical certificate dated 03.03.2018, in order to resume duty with effect from 05.03.2018. However, he was not permitted to join duty on that day. Later, by Ext.P5 letter dated 08.03.2018, the 1[st] respondent directed the petitioner to produce fitness certificate from Medical Board. On receipt of Ext.P5, the petitioner submitted Ext.P6 reply dated 14.03.2018, wherein he has stated that fitness certificate from Medical Board cannot be produced as Medical Board has to be constituted by the 2[nd] ## **W.P.(C)Nos.21456 & 21568/2018** -9- respondent Managing Committee, if they are desirous of the same. In Ext.P6, the petitioner has also made a request to permit him to join duty forthwith. 9. While the request made in Ext.P6 was pending consideration, the 1[st] respondent issued Ext.P7 letter/notice dated 11.04.2018 proposing to take disciplinary action against the petitioner, as he failed to produce medical certificate from Medical Board. According to the petitioner, he was reporting to the Bank on all days from 05.03.2018. He submitted Ext.P8 representation dated 13.04.2018 before the 3[rd] respondent Joint Registrar seeking interference and to permit him to join duty, after the expiry of the leave. Pending Ext.P8 representation, the petitioner moved this Court in W.P.(C)No.14111 of 2018 and that writ petition was disposed of by Ext.P9 judgment dated 20.04.2018, whereby the 3[rd] respondent Joint Registrar was directed to consider Ext.P8 representation. 10. In the light of the direction contained in Ext.P9 judgment, the 3[rd] respondent Joint Registrar issued a notice to the petitioner as well as to respondents 1 and 2 for conducting ## **W.P.(C)Nos.21456 & 21568/2018** -10- personal hearing on 23.05.2018. On that day, the Secretary and President of the 1[st] respondent Bank and the petitioner appeared before the 3[rd] respondent Joint Registrar. After considering the rival submissions, the 3[rd] respondent passed Ext.P10 order dated 14.06.2018, whereby the petitioner was ordered to be reinstated in service as Secretary, as there is no provision to revert an employee to a lower post. Though, a copy of Ext.P10 order was served on respondents 1 and 2, and they have acknowledged the same on 22.06.2018, the petitioner was not permitted to join duty. It was in such circumstances that, the petitioner has moved this Court in W.P.(C)No.21456 of 2018 seeking interference. 11. In the counter affidavit filed by respondents 1 and 2, it is stated that the petitioner was promoted as Secretary of the 1[st] respondent Bank on 01.06.2016 and he continued in that post till 01.06.2017. During the said period, he took various leaves and he availed leave for the period from 01.06.2017 to 15.07.2017, without assigning any reasons. On 09.12.2017, the petitioner submitted a letter stating that he is unable to discharge the duties of the Secretary and sought transfer/reversion as Branch ## **W.P.(C)Nos.21456 & 21568/2018** -11- Manager. Later, on 11.01.2018, without informing his whereabouts, the petitioner absented from duty. In the absence of the Secretary, the Bank could not transact any major business activities for the subsequent three days. The petitioner did not give charge to anybody during that period. The President of the Bank sent a letter to the house of the petitioner, through staff, and directed him to resume duty forthwith or hand over charge of Secretary to the Assistant Secretary, for the smooth functioning of the Bank. On 15.01.2018, the petitioner admitted his lapse and gave a letter admitting that he was undergoing treatment at St.Thomas Hospital, Chethippuzha, Changanassery. Along with the said letter, the medical certificate dated 02.01.2018 issued from St.Thomas Hospital was also enclosed, wherein it has been certified that he was undergoing treatment for depressive disorder, since 29.05.2017 and he is unable to withstand extensive stress and it is advisable to move him to a post which is having less stress. 12. According to respondents 1 and 2, based on the request made by the petitioner, he was reverted to the post of ## **W.P.(C)Nos.21456 & 21568/2018** -12- Branch Manager/Internal Auditor by proceedings dated 01.02.2018 and accordingly, he assumed duty in the reverted post on 01.02.2018. The reversion of the petitioner and the consequent promotion of the Assistant Secretary to the post of Secretary was duly communicated to the Assistant Registrar of Co-operative Societies, Changanassery, vide letter dated 05.02.2018. 13. According to respondents 1 and 2, after joining duty as Branch Manager/Internal Auditor, the petitioner again sought for long leave. The said request made by the petitioner was considered by the Managing Committee in its meeting held on 31.01.2018 and it was resolved to grant leave upto one month and further resolved to direct the petitioner to produce medical certificate from the Medical Board to the effect that he is fit to resume duty and further discharge the duties of Branch Manager/Internal Auditor. However, the petitioner did not produce any medical certificate as directed by the Managing Committee. The petitioner moved Ext.P8 representation before the 3[rd] respondent Joint Registrar seeking a direction to permit ## **W.P.(C)Nos.21456 & 21568/2018** -13- him to join duty as Branch Manager/Internal Auditor, without producing any medical certificate from Medical Board. Based on that representation, the 3[rd] respondent Joint Registrar, by Ext.P10 proceedings, directed the 1[st] respondent Bank to post him as Secretary, by invoking the provisions under Rule 176 of the Kerala Co-operative Societies Rules, which according to respondents 1 and 2 is illegal and without any jurisdiction. 14. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, this Court finds that, while working as the Secretary of the 1[st] respondent Bank, the petitioner made a request for reversion to the post of Branch Manager/Internal Auditor. Based on that request, he was reverted to the post of Branch Manager/Internal Auditor. Thereafter, he was on leave for some time and when a request was made to rejoin duty, the 1[st] respondent Bank insisted for medical fitness certificate. The petitioner could not produce such certificate from the Medical Board and accordingly, he was not permitted to rejoin duty. The petitioner moved Ext.P8 representation before the 3[rd] respondent ## **W.P.(C)Nos.21456 & 21568/2018** -14- Joint Registrar, which has resulted in Ext.P10 order dated 14.06.2018 of the 3[rd] respondent Joint Registrar, whereby the said respondent, by invoking the powers under Rule 176 of the Kerala Co-operative Societies Rules, directed the 1[st] respondent Bank to reinstate the petitioner as Secretary, thereby rescinding the resolution taken by the Bank. 15. A reading of Ext.P10 order would show that the said order is one issued by the 3[rd] respondent Joint Registrar in exercise of his powers under Rule 176 of the Kerala Co-operative Societies Rules. Rule 176 of the Kerala Co-operative Societies Rules empowers the Registrar to rescind resolution. Rule 176 provides that, notwithstanding anything contained in the byelaws of a registered society, it shall be competent for the Registrar to rescind any resolution, of any meeting of any Society or the committee of any society, if it appears to him that such resolution is ultra vires of the objects of the society or is against the provisions of the Kerala Co-operative Societies Act, Rules, Bye-laws or of any direction or instructions issued by the Department, or calculated to disturb the peaceful and orderly **W.P.(C)Nos.21456 & 21568/2018** -15- working of the society or is contrary to the better interest of the society. 16. The issue that has to be decided in these writ petitions is as to whether, after the insertion of Section 70A of the Kerala Co-operative Societies Act, whereby Co-operative Arbitration Courts are constituted to decide non-monetary disputes falling under Section 69 of the Act, the 3[rd] respondent Joint Registrar, in exercise of his powers under Rule 173 of the Kerala Co-operative Societies Rules can rescind the resolution of a Co-operative Society, based on a dispute raised by an employee, which is in the nature of a service dispute, which squarely falls within the scope of Section 69 of the Act. 17. Section 69 of the Kerala Co-operative Societies Act, 1969 deals with disputes to be decided by Co-operative Arbitration Court and Registrar. As per clause (c) of sub-section (1) of Section 69, notwithstanding anything contained in any law for the time being in force, if a dispute arises between the society or its Committee and any past Committee, any officer, agent or employee or any past officer, past agent or past employee or the ## **W.P.(C)Nos.21456 & 21568/2018** -16- nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society, such disputes shall be referred to Co-operative Arbitration Court constituted under Section 70A of the Act, in the case of nonmonetary disputes and to the Registrar, in the case of monetary disputes, and the Arbitration Court or the Registrar, as the case may be, shall decide such disputes and no other court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such disputes. 18. Section 70(B) of the Act would make it explicitly clear that, on constitution of a Co-operative Arbitration Court, every dispute pending before the Registrar or any person invested with the power to dispose of the dispute by the Government or the Arbitrator appointed by the Registrar, in respect of non-monetary disputes, relating to the local area of jurisdiction of the Arbitration Court, shall be transferred to such Arbitration Court and the Court shall dispose of the same as if it were a dispute referred to it under Section 69. 19. In **Commissioner of Income Tax v. Chhabil Das** **W.P.(C)Nos.21456 & 21568/2018** -17- **Agarwal [(2014) 1 SCC 603]** the Apex Court held that nonentertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 20. In **Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85]** the Apex Court reiterated that the discretionary jurisdiction under Article 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with **W.P.(C)Nos.21456 & 21568/2018** -18- law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well defined exceptions as observed in **Chaabil Das Agarwal's case (supra)** , i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. After referring to the law laid down in **Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419]** and **Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433]** the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring **W.P.(C)Nos.21456 & 21568/2018** -19- the statutory dispensation. 21. In **Thansingh Nathmal's case (supra)** a Constitution Bench of the Apex Court held that, the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court ## **W.P.(C)Nos.21456 & 21568/2018** -20- does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 22. In **Titaghur Paper Mills' case (supra)** a ThreeJudge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy ## **W.P.(C)Nos.21456 & 21568/2018** -21- provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in **Wolverhampton New Water Works Co. v. Hawkesford [(1859) 6 CBNS 336]** at page 356 in the following passage: "There are three classes of cases in which a liability may be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in that passage was approved by the House of Lords in **Neville v. London Express Newspaper Ltd.[1919 AC 368]** and has been reaffirmed by the Privy Council in **Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532]** and **Secretary of State v. Mask and Co. [AIR 1940 PC 105]** . It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 23. In the instant case, the pleadings and materials on ## **W.P.(C)Nos.21456 & 21568/2018** -22- record would show that the request made by the petitioner in Ext.P8 representation dated 13.04.2018 submitted before the 3[rd] respondent Joint Registrar, is one seeking interference for rejoining duty as Branch Manager/Internal Auditor. It was based on that request that the 3[rd] respondent Joint Registrar issued Ext.P10 order dated 14.06.2018, whereby the petitioner has been directed to be reinstated in service as Secretary of the 1[st] respondent Bank. 24. In view of the provisions under Section 69 of the Act, read with the provisions under Section 70B, conclusion is irresistible that the 3[rd] respondent Joint Registrar cannot exercise any jurisdiction in respect of a non-monetary dispute, namely, a service dispute, which clearly falls within the jurisdiction conferred on the Co-operative Arbitration Court. The said issue is no more _res integra_ in view of the law laid down by this Court in **Raveendran v. State of Kerala [2007(3) KLT 558]** , **Jayaram T. v. Assistant Registrar of Co-operative Societies [2016(2) KLJ 446]** , **Thrissur Taluk Co-operative College Educational Society Ltd. v. Joint Registrar [2012 (1) KLT** **W.P.(C)Nos.21456 & 21568/2018** -23- **503]** and **Kanjoor Service Co-operative Bank Ltd. v. Joint Registrar of Co-operative Societies [2016(3) KLT 73]** . The said position has been reiterated by a Division Bench of this Court in its judgment dated 16.07.2018 in W.A.No.2119 of 2016, which reads thus; “1.The law is well settled that the power to rescind a resolution under Rule 176 of the Kerala Co-operative Societies Rules, 1969 cannot be invoked to annul an employment in a cooperative bank. Resort should be had to Section 69(2d) of the Kerala Co-operative Societies Act, 1969 by raising a dispute before the Co-operative Arbitration Court if there is any illegality in the employment. The following are the decisions in support: - i. **Raveendran** v. **State of Kerala** [2007(3) KLT 558] - ii. **Jayaram T.** v. **Assistant Registrar of Co-operative Societies** [2016(2) KLJ 446] - iii. **Thrissur Taluk Co-operative College Educational Society Ltd.** v. **Joint Registrar** [2012 (1) KLT 503] - iv. **Kanjoor Service Co-operative Bank Ltd.** v. **Joint Registrar of Co-operative Societies** [2016(3) KLT 73]. - 2.The direction in the impugned judgment to reconsider Ext.P10 order passed in exercise of the **W.P.(C)Nos.21456 & 21568/2018** -24- jurisdiction under Rule 176 of the Rules concerning the rescinding of the resolution appointing the appellants is bad. There is no necessity to reconsider the issue by the Joint Registrar after conforming to the principles of natural justice when he lacks jurisdiction in that regard. We therefore set aside the impugned judgment by quashing Ext.P10 order of the Joint Registrar rescinding the resolution dated 29.12.2008 of the bank pertaining to the appointment of appellants. The power under Sections 65 and 66 of the Act for an enquiry and inspection as regards the alleged irregularities in the appointment however remains intact. The writ appeal is allowed. No costs.” 25. In such circumstances, the order dated 14.06.2018 of the 1[st] respondent Joint Registrar (produced as Ext.P10 in W.P. (C)No.21456 of 2018 and as Ext.P16 in W.P.(C)No.21568 of 2018) whereby the said respondent rescinded the resolution taken by the 2[nd] respondent Managing Committee of the 1[st] respondent Bank to reinstate the petitioner as Secretary of the Bank cannot be sustained in the eye of law. 26. By order dated 08.08.2018, while referring the petitioner for medical examination by the Medical Board at ## **W.P.(C)Nos.21456 & 21568/2018** -25- Government Medical College Hospital, Kottayam, this Court has recorded the submission made by the learned counsel for the 1[st] respondent Bank in W.P.(C)No.21456 of 2018 (the petitioner in W.P.(C)No.21568 of 2018) that if the writ petitioner in W.P. (C)No.21456 of 2018 is found medically fit by the Medical Board, he can be permitted to join duty as Branch Manager. In terms of the said order dated 08.08.2018, the petitioner in W.P. (C)No.21456 of 2018 appeared before the Medical Board and the report of the Medical Board dated 24.09.2018 is placed on record along with a memo dated 16.10.2018 of the learned Government Pleader. The said medical report reads thus; “We Dr. Rekha Mathew and Dr. Ganga. G. Kaimal, Assistant Professors in the Department of Psychiatry, Govt. Medical College, Kottayam as directed by Head of the Department of Psychiatry examined Mr. Dony John, 56 years at Superintendents chamber, Govt.Medical College, Kottayam on 24.09.2018. History was obtained from patient and wife. Mr. Dony was working at Co operative Bank, Vazhappally from 1986 onwards and was promoted to Secretary on May 2016. Following some stressors at work place he developed decreased sleep, andety and depressive **W.P.(C)Nos.21456 & 21568/2018** -26- symptoms for which he took treatment from Dr. Shahul Ameen of St. Thomas Hospital, Chethipuzha. (Copy of treatment summary dated 3.9.2018 available). Currently he is not having any symptoms and not on any medication. No other past history or family history of behavioral problems. No history of substance use for the past 20 years. Past history of Hypothyroidism present. Mental status examination revealed a cooperative male, with adequate psychomotor activity, relevant and coherent talk and euthymic affect. No delusions or Hallucinations elicited. No depressive cognition or anxiety symptoms present. No gross cognitive impairment elicited at present. Psychometry done on 16.9.2018 by clinical Psychologist Mrs. Tessy Grace Mathew, RCI No. A 24569. The impression was "the protocol was productive. The responses did not meet the criterias for any of the special indices.” From history we conclude that Mr. Dony John was having a Depressive episode, now in remission. Present mental status examination and psychometric evaluation does not reveal any active psychopathology. At present he is fit to resume his duties.” (Underline supplied) 27. The medical report dated 24.09.2018 produced along with the memo filed by the learned Government Pleader would ## **W.P.(C)Nos.21456 & 21568/2018** -27- show that, on examination, the petitioner was found fit to resume his duties. In such circumstances, the petitioner has to be permitted to resume duty as Branch Manager/Internal Auditor forthwith, without prejudice to his right to challenge the order of reversion to the post of Secretary before the Co-operative Arbitration Court, invoking Section 69 of the Act. 28. Accordingly, these writ petitions are disposed of without prejudice to the right of the petitioner to invoke the statutory remedy under Section 69 of the Act against his reversion from the post of Secretary to the post of Branch Manager/Internal Auditor, by approaching the Co-operative Arbitration Court. Ext.P10 order of the 3[rd] respondent Joint Registrar dated 14.06.2018 (which is under challenge as Ext.P16 in W.P.(C)No. 21568 of 2018) will stand set aside on the ground of lack of jurisdiction, leaving open the legal and factual contentions raised by both sides, which has to be raised before the Co-operative Arbitration Court, at appropriate stage. In terms of the medical report dated 24.09.2018 of the Medical Board at the Medical College Hospital, Kottayam, respondents 1 and 2 ## **W.P.(C)Nos.21456** ## **& 21568/2018** -28- shall permit the petitioner to rejoin duty as Branch Manager forthwith, as undertaken before this Court on 08.08.2018. It is made clear that the observations contained in this judgment touching the merits of the case are made for the limited purpose of disposal of these writ petitions and the Co-operative Arbitration Court shall consider any dispute raised by the petitioner in W.P.(C)No.21456 of 2018 regarding his reversion to the post of Branch Manager, invoking Section 69 of the Act, untramelled by any such observations. Sd/- **ANIL K.NARENDRAN JUDGE** dsn ## **W.P.(C)Nos.21456 & 21568/2018** -29- **WP(C).No. 21456 of 2018 (F)** ## **PETITIONER(S)' EXHIBITS** - **EXHIBIT P1 A TRUE COPY OF THE REQUEST DATED 09-12-2017 MADE BY THE PETITIONER.** - **EXHIBIT P2 A TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED FROM DR.SHAHUL AMEEN.** - **EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 01-02-2018 OF THE BANK.** - **EXHIBIT P4 A TRUE COPY OF THE MEDICAL CERTIFICATE DATED 03-03-2018.** - **EXHIBIT P5 A TRUE COPY OF THE LETTER DATED 08-03-2018 OF THE FIRST RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF THE REPLY DATED 14-03-2018 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P7 A TRUE COPY OF THE LETTER DATED 11-04-2018 OF THE BANK.** - **EXHIBIT P8 A TRUE COPY OF THE PETITION DATED 13-042018 SUBMITTED BEFORE THE THIRD RESPONDENT.** - **EXHIBIT P9 A TRUE COPY OF THE JUDGMENT DATED 20-042018 IN WP(C)NO.14111/2018.** - **EXHIBIT P10 A TRUE COPY OF THE ORDER DATED 14-06-2018 OF THE JOINT REGISTRAR.** ## **RESPONDENT'S EXTS: NIL** **TRUE COPY** **P.A.TO JUDGE** **dsn** ## **W.P.(C)Nos.21456 & 21568/2018** -30- **WP(C).No. 21568 of 2018 (U)** ## ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE LETTER DATED 09.12.2017.** **EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE LETTER DATED 15.01.2018.** **EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE LETTER DATED 15.01.2018.** **EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE MEDICAL CERTIFICATE DATED 02.01.2018.** **EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE LETTER DATED 01.02.2018 ISSUED TO THE 4TH RESPONDENT.** **EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE CHARGE HANDED OVER DOCUMENT.** **EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE SAID LETTER DATED 05.02.2018.** **EXHIBIT P8 TRUE PHOTOCOPY COPY OF THE MEDICAL CERTIFICATE DATED 03.03.2018.** **EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE LETTER DATED 08.03.2018.** **EXHIBIT P10 TRUE PHOTOSTAT COPY OF THE REPLY DATED 14.03.2018.** **EXHIBIT P11 TRUE PHOTOSTAT COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE BOARD MEETING HELD ON 31.01.2018** **EXHIBIT P12 TRUE PHOTOSTAT COPY OF THE LETTER DATED 05.04.2018.** ## **W.P.(C)Nos.21456 & 21568/2018** -31- **WP(C).No. 21568 of 2018 (U)** **EXHIBIT P13 TRUE PHOTOSTAT COPY OF THE LETTER DATED 11.04.2018. EXHIBIT P14 TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 13.04.2018. EXHIBIT P15 TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 20.04.2018. EXHIBIT P16 TRUE PHOTOSTAT COPY OF THE ORDER DATED 14.06.2018. EXHIBIT P17 COPY OF LEAVE APPLICATION SUBMITTED BY THE 4TH RESPONDENT DT.1.2.18. EXHIBIT P18 COPY OF LETTER DT.2.5.18.** **RESPONDENTS' EXTS:** **EXT.R4(A): COPY OF RESOLUTION DT.15.04.2016 OF THE BANK. EXT.R4(B): COPY OF MEDICAL CERTIFICATE DT.16.1.2018** ## **TRUE COPY** **P.A.TO JUDGE** **dsn**