K. Kolappan Achari and others v. The Managing Committee of The Ananthasayanam Co-Operative Bank Ltd. (No.478) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **MONDAY, THE 25TH DAY OF FEBRUARY 2013/6TH PHALGUNA 1934** **WP(C).No. 21599 of 2012 (Y) ---------------------------** ## **PETITIONER(S): --------------------------** **1. K.KOLAPPAN ACHARI, AGED 47 YEARS APPRAISER, THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** **2. REMA S., BRANCH MANAGER, (FORT BRANCH) THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** **3. G. RAMACHANDRAN, CHIEF ACCOUNTANT, THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** **4. R. RAMANATHAN, BRANCH MANAGER (KARAMANA BRANCH) THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** **5. G.P. SUBRAMANYAN, SENIOR ACCOUNTANT, THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** **6. S. SEETHALAKSHMI AMMAL, JUNIOR ACCOUNTANT, THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** **7. S.Y. NARAYANAN, JUNIOR ACCOUNTANT, THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** **8. K. PADMAJA, JUNIOR ACCOUNTANT, THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** **9. P. LEKSHMINARAYANAN, JUNIOR ACCOUNTANT, THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** **10. S. ANAND, JUNIOR CLERK, THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** ## **WP(C).No. 21599 of 2012 (Y)** **11. THANKACHI, JUNIOR CLERK, THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** **12. JYOTHI S., JUNIOR CLERK, THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** **13. S. RAMAKRISHNAN, ATTENDER,** - **THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** **14. S. SUBRAMANYA IYER, PEON, THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** **15. V. HARIHARAN, PEON, THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** **16. K.S. SREEKUMAR, PEON, THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** ## **BY ADVS.SRI.P.N.MOHANAN SMT.I.VINAYAKUMARI** ## **RESPONDENT(S):** - **----------------------------** **1. THE MANAGING COMMITTEE OF THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, REPRESENTED BY CHAIRMAN, G.P.O. LANE 695 001, THIRUVANANTHAPURAM DISTRICT** **2. THE ANANTHASAYANAM CO-OPERATIVE BANK LTD. NO.478, REPRESENTED BY SECRETARY G.P.O. LANE, THIRUVANANTHAPURAM DISTRICT** **3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) THIRUVANANTHAPURAM 695 001** **4. REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM 695 001.** ## **R1 & R2 BY ADV. SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 21599 of 2012 (Y)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** ## **EXT.P1:TRUE COPY OF THE PAY REVISION ORDER DATED 18.8.2010** ## **EXT.P2:TRUE COPY OF REPRESENTATION DATED 10.8.2012** **EXT.P3:TRUE COPY OF THE REPRESENTATION DATES 14.9.2011 FILED BY KERALA CO-OPERATIVE URBAN BANK EMPLOYEES ASSOCIATION BEFORE THE FIRST RESPONDENT** **EXT.P4:TRUE COPY OF THE REPRESENTATION DATED 3.10.2011 FILED BY KERALA CO-OPERATIVE URBAN BANK EMPLOYEES ASSOCIATION BEFORE THE FIRST RESPONDENT** ## **EXT.P5:TRUE COPY OF THE LETTER DATED 31.10.2011 OF THE FIRST RESPONDENT** **EXT.P6:TRUE COPY OF THE BALANCE SHEET AS ON 31.3.2009 ALONG WITH REPORT OF THE AUDITOR AND PROCEEDINGS OF THE JOINT REGISTRAR DATED 19.9.2009** ## **EXT.P7:TRUE COPY OF THE BALANCE SHEET AS ON 31.3.2011** ## **RESPONDENTS' EXHIBITS :** **EXT.R2(a): PHOTOSTAT COPY OF THE EXTRACT OF THE RESOLUTION NO.222 PASSED BY THE BOARD OF DIRECTORS IN THE MEETING HELD ON 3.8.2012.** **EXT.R2(b): PHOTOSTAT COPY OF THE CIRCULAR NO.RBI/2011-12/420 UBD.BPD (PCB) CIR.22/12.05.001/2011-12 DATED 1.3.2012 ISSUED BY THE CHIEF GENERAL MANAGER-IN-CHARGE, RBI TO THE CHIEF EXECUTIVE OFFICER, ALL PRIMARY (URBAN) CO-OPERATIVE BANKS.** **EXT.R2(c): PHOTOSTAT COPY OF THE LETTER NO.HO-72/12-13 DATED 7.6.2012 ISSUED BY THE 2ND RESPONDENT BANK TO THE JOINT REGISTRAR, THIRUVANANTHAPURAM** **EXT.R2( d): PHOTOSTAT COPY OF THE REPLY NO.V.R.1938/12 DATED 11.7.2012 ISSUED BY THE ASSISTANT REGISTRAR (GENERAL) TRIVANDRUM, TO THE SECRETARY, 2ND RESPONDENT BANK** **EXT.R2( e): PHOTOSTAT COPY OF THE BALANCE SHEET OF THE BANK AS ON 31.3.2011 ISSUED BY THE 2ND RESPONDENT BANK** **EXT.R2( f): PHOTOSTAT COPY OF THE EXTRACT OF THE RESOLUTION NO.315 DATED 22.9.2011 ISSUED BY THE 2ND RESPONDENT BANK** ## **WP(C).No. 21599 of 2012 (Y)** **EXT.R2(g ): PHOTOSTAT COPY OF THE EXTRACT OF THE MINUTES OF THE GENERAL BODY HELD ON 11.3.2012** **EXT.R2( h): PHOTOSTAT COPY OF THE EXTRACT OF THE CIRCULAR NO.UBD.PBD (PCB) MC NO.3/09/14,000/2011-2012 DATED 1.7.2011 ISSUED BY THE RBI TO THE BANK** **EXT.R2(i ): PHOTOSTAT COPY OF THE REPORT NO.UBD (T) NO.587/12.04.036/2006-07 DATED 5.10.2006 ISSUED BY THE ASSISTANT GENERAL MANAGER, RESERVE BANK OF INDIA, TO THE 2ND RESPONDENT BANK** **EXT.R2( j): PHOTOSTAT COPY OF THE STATEMENT SHOWING THE ADDITIONAL COMMITMENT OF THE BANK PAY REVISION 2008 IMPLEMENTED MONTHLY COMMITMENT FOR THE MONTH OF JUNE 2011** **EXT.R2( k): PHOTOSTAT COPY OF THE LETTER DATED 14.5.2011 SUBMITTED BY THE EMPLOYEES 2ND RESPONDENT BANK TO THE SECRETARY, 2ND RESPONDENT BANK** **EXT.R2( l): PHOTOSTAT COPY OF THE LETTER UBD (T) NO.883/12 04 0036/2009-10 DATED 14.12.2009 ISSUED BY THE MANAGER, RBI TO THE SECRETARY, 2ND RESPONDENT BANK.** //True copy// P.A. TO JUDGE Shg/ ## **A.M. SHAFFIQUE, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.21599 of 2012 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of February, 2013** ## **J U D G M E N T** The writ petition is filed by the employees of the 2[nd] respondent bank inter alia seeking a direction to implement Ext.P1 pay revision order issued by the Government. Though Ext.P1 is issued on 18.08.2010, the pay revision was with effect from 01.04.2008. The contention of the respondents 1 and 2 is that Ext.P1 pay revision order cannot be implemented as the 2[nd] respondent bank is running in huge loss for the years 2009 - 2010 & 2010-2011 and therefore the bank had passed a resolution deciding not to implement pay revision to the employees as per Ext.P1 on account of the highly critical financial position. Ext.R2 (a) is the said decision. Still further they rely upon Ext.R2 (d),communication from the Assistant Registrar (General) of Co-operative Societies informing the bank that it is for the managing committee to take a ## W.P.(C) No.21599 of 2012 **-2-** decision in respect of the directions issued by the Government as per Ext.P1 Government order. 2. It is also contended that if the pay revision as stated in Ext.P1 is given, the bank will be in severe loss and it will amount to capital erosion of the bank which will affect the stability and very existence of the bank. Still further it is contended that the employees of the bank are fully aware of the financial condition of the bank and they have in their representation Ext.R2 (k) stated that the pay revision arrears may be paid only when the bank achieves profit. 3. Heard the learned counsel for the petitioners Sri. P.N. Mohanan, learned senior counsel Sri. N. Nandakumara Menon appearing for the 2[nd] respondent bank and the learned Government Pleader. 4. According to the learned counsel for petitioners when Ext.P1 Government order is issued, the Society is bound to comply with the same as the pay scale of different categories of posts in a society is fixed in terms of Rule W.P.(C) No.21599 of 2012 **-3-** 189 (2) r/w. Appendix III which reads as under: “the scale of pay for different categories of posts shall be shown in Appendix III to these rules”. Appendix III would show that as far as the Urban Cooperatives Banks are concerned the scale of pay shall be as fixed by the Government from time to time. Therefore, according to the counsel, if the Government had fixed revised pay scale of the employees, in terms of Rule 189, the Society is bound to apply the said revision. 5. It is argued by the learned senior counsel appearing for the bank that the writ petition is not maintainable essentially when the claim is a dispute coming within the purview of Section 69 (2) (d) of the Cooperative Societies Act. This issue is already covered by the Full Bench judgment of this court in **John v. Liquidator [2006 (1) KLT 11 (F.B.)** wherein the Full Bench after having considered in detail the scope of interference by this court with reference to the provisions of the Co-operative Societies Act and the rules framed thereunder opined that a ## W.P.(C) No.21599 of 2012 **-4-** writ will lie against a co-operative society only when the duty owed by the Co-operative Society is of a public nature or when there is infringement of any statutory rules by such a co-operative society. Another judgment on this point is **Pothanicad Farmers Co-op. Bank Ltd v. Joint Registrar [2002 (1) KTL 857]** wherein also this court opined that when there is a challenge that the society has violated the orders issued by the government, mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found, and technicalities should not come in the way of granting relief under Article 226. 6. Another main contention of the respondents 1 and 2 is non-application of Ext.P1 pay revision order issued by the Government. 7. Having referred to the various terms of pay revision order, I don't have hesitation to hold that Ext.P1 squarely applies to the respondent bank. It might be true that on account of financial situation it is not able to extend the benefit of Ext.P1 to its employees. But the question is W.P.(C) No.21599 of 2012 **-5-** whether it can refuse to comply Ext.P1 pay revision order. When the writ petition is filed seeking to implement Ext.P1 order issued by the Government, I am of the view that going by the judgments cited above, this court will have jurisdiction to pass appropriate orders in the form of mandamus despite the existence of an alternate remedy. That apart, there is not much dispute regarding the controversy involved in this matter which requires any evidence at all. This is a matter wherein the question is whether Ext.P1 applies to the 2[nd] respondent society. Having referred to the provisions of Rule 189 in Appendix III, it is clear that the 2[nd] respondent is bound by Ext.P1 order and they have an obligation to implement the same despite the fact that the 2[nd] respondent bank is in a difficult financial situation. However as can be seen from Rule 181, it is open to the 2[nd] respondent to approach the Government to see whether they could get any exemption from applying the pay revision order on account of special circumstances ## W.P.(C) No.21599 of 2012 **-6-** which they have stated in their counter affidavit. In the said circumstances, I am of the view that the writ petition can be disposed of as follows: - (1) That the 2[nd] respondent shall implement Ext.P1 pay revision order within a period of three months from today. - (2) If the 2[nd] respondent bank seeks to avail any exemption from the Government in implementing Ext.P1 pay revision order, they have to approach the Government in terms of Rule 181 of the Cooperative Societies Rules and obtain appropriate orders within the said period. Sd/- **A.M. SHAFFIQUE JUDGE** //True copy// P.A. TO JUDGE shg/