K.K. Joseph & Others v State of Kerala & Others (including Muthalakodam Service Co-Operative Bank Ltd.)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 16TH DAY OF MARCH 2017/25TH PHALGUNA, 1938** ## **WP(C).No. 35944 of 2015 (P)** ## **----------------------------** ## **PETITIONERS:** **----------------------** **1. K.K.JOSEPH, KALLUNGAKUDIYIL HOUSE,** **MUTHALAKODAM.P.O,THODUPUZHA, IDUKKI DISTRICT.** **2. ELSY JOHN, W/O.K.K.JOSEPH, KALLUNGAKUDIYIL HOUSE, MUTHALAKODAM.P.O,THODUPUZHA, IDUKKI DISTRICT.** **3. MAITHEEN, THRIKKADAYIL HOUSE,MUTHALAKODAM.PO,** **THODUPUZHA,IDUKKI DISTRICT.** ## **BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH** **RESPONDENTS:** - **--------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT,** **CO-OPERATION DEPARTMENT,SECRETARIAT, TRIVANDRUM.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, TRIVANDRUM.** **3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(G), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, PAINAVU, IDUKKI.** **4. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(G), OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THODUPUZHA, IDUKKI.** **2/-** **-2-** **WP(C).NO.35944/2015** ## **5. MUTHALAKODAM SERVICE CO-OPERATIVE BANK LTD.NO.1403, MUTHALAKODAM.P.O, IDUKKI-686 605, REPRESENTED BY ITS PRESIDENT.** ## **R1 TO R4 BY SR GOVERNMENT PLEADER SRI.T.N.MANOJ** **R5 BY ADVS. KUM.ANJU CLETUS SRI.A.RAJESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 35944 of 2015 (P)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS ---------------------------------------** - **P1 A TRUE PHOTOCOPY OF THE ORDER DATED 9/7/1985 ISSUED BY THE 3RD RESPONDENT CLASSIFYING THE 5TH RESPONDENT BANK AS CLASS-II SOCIETY** - **P2 A TRUE PHOTOCOPY OF THE G.O.(P)NO.36/2011/CO-OP DATED 25/2/2011 WITH ENGLISH TRANSLATION OF RELEVANT PORTION** - **P3 A TRUE PHOTOCOPY OF THE RESOLUTION NO.224 DATED 28/7/2001 OF THE MANAGING COMMITTEE OF THE 5TH RESPONDENT BANK WITH ENGLISH TRANSLATION** - **P4 A TRUE PHOTOCOPY OF THE RESOLUTION NO.227 DATED 9/8/2011 OF THE MANAGING COMMITTEE OF THE 5TH RESPONDENT BANK WITH ENGLISH TRANSLATION** - **P5 A TRUE PHOTOCOPY OF THE RESOLUTION NO.318 DATED 4/10/2011 OF THE MANAGING COMMITTEE OF THE 5TH RESPONDENT BANK WITH ENGLISH TRANSLATION** - **P6 A TRUE PHOTOCOPY OF THE CIRCULAR ISSUED BY THE 2ND RESPONDENT DATED 2/4/2011 WITH ENGLISH TRANSLATION OF RELEVANT PORTION** - **P7 A TRUE PHOTOCOPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 12/7/2011 WITH ENGLISH TRANSLATION** - **P8 A TRUE PHOTOCOPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 22/11/2011 WITH ENGLISH TRANSLATION** - **P9 A TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 23/3/2012 WITH ENGLISH TRANSLATION** - **P10 A TRUE PHOTOCOPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 21/7/2012 WITH ENGLISH TRANSLATION** - **P11 A TRUE PHOTOCOPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT DATED 19/12/2011 WITH ENGLISH TRANSLATION** - **P12 A TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 7/5/2012 WITH ENGLISH TRANSLATION** - **P13 A TRUE PHOTOCOPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT DATED 17/7/2012 WITH ENGLISH TRANSLATION** - **P14 A TRUE PHOTOCOPY OF THE RESOLUTION NO.231 DATED 23/8/2012 OF THE MANAGING COMMITTEE OF THE BANK WITH ENGLISH TRANSLATION** **2/-** **-2-** ## **WP(C).NO.35944/2015** - **P15 A TRUE PHOTOCOPY OF THE AUDIT CERTIFICATE FOR THE YEAR 2007-08 DATED 25/2/2009 ENGLISH TRANSLATION OF RELEVANT PORTION** - **P16 A TRUE PHOTOCOPY OF THE CHART EVIDENCING THE WORKING OF THE SOCIETY FROM 2000 TO 2011** - **P17 A TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 20/9/2012 WITH ENGLISH TRANSLATION** - **P18 A TRUE PHOTOCOPY OF THE REPLY RECEIVED UNDER THE RIGHT TO INFORMATION ACT 10/10/2012 WITH ENGLISH TRANSLATION** - **P19 A TRUE PHOTOCOPY OF THE JUDGMENT IN W.P.(C)NO.25656/2012 DATED 4/3/2015** - **P20 A TRUE PHOTOCOPY OF THE ORDER IN RP NO.369/2015 IN W.P.(C).NO.25656/2012 DATED 9/4/2015.** ## **RESPONDENT(S)' EXHIBITS** **------------------------------------------** **R5(A) A TRUE COPY OF THE LETTER DATED 03/10/2012 OF THE 4TH RESPONDENT** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **sts** ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = = =** ## **W.P.(C) No. 35944 of 2015** **- - - - - - -- - - - - - - - - - - - - -** Dated this the 16[th] day of March, 2017 ## **J U D G M E N T** This writ petition is filed with the following prayers: _i) Issue a writ of certiorari or any other appropriate writ or order or calling for the records leading to Ext.P14 and P17 and quash the same; and._ _ii) Issue a writ of mandamus or any other appropriate writ or order or commanding and compelling the respondents to implement the pay revision order treating the Society as Class-II Society and extent all the benefits arising out of the pay revision order; and._ _iii) Declare that Ext.P14 and also the consequential order issued by the 3[rd] respondent in the nature of Ext.P17 are without any power authority or jurisdiction; and_ _iv) Issue such other appropriate writ, order or direction which may deem fit and appropriate in the facts and circumstances of the case and allow the writ petition with cost_ 2. Heard the learned counsel for petitioners and the learned Senior Government Pleader and the Standing Counsel appearing for respondents 1 to 4. Though a **W.P.(C) No. 35944 of 2015** ## **-: 2 :-** counter affidavit has been filed on the part of the 5[th] respondent, there was no appearance for the 5[th] respondent, when the writ petition was taken up. 3. Learned counsel for the petitioners contends that the society was classified as a Class II credit society as on 01.04.2009. As such, the petitioners who were the employees of the society, were entitled to pay revision, taking note of the classification of the society as Class II. Learned counsel for the petitioners relies on Exts.P1, P3 and P5 to show that the 5[th] respondent society was classified as a Class II credit society as on 01.04.2009. As per Ext.P2 pay revision order, petitioners were entitled to get benefits of the pay revision order, taking the society as a Class II credit society. It is submitted that on the plea that the society had later reclassified retrospectively as a Class IV society, the society had refused to extend all the due benefits of the pay revision order to the **W.P.(C) No. 35944 of 2015** ## **-: 3 :-** employees. 4. The learned counsel for the petitioners contends that going by the norms of classification of the society, the society was liable to be classified as Class II society during 01.04.2009. It is further contended that even if the society was not entitled to be classified as a Class II society, since no order of reclassification had been issued as on the relevant date, i.e., 01.04.2009, a retrospective reclassification and a reduction of benefits due would not be possible in view of the provisions of the Kerala Co-operative Societies Act and Rules. It is further submitted that the Registrar specifically directed the implementation of pay revision in the 5[th] respondent society taking note of its classification as Class II with effect from 01.04.2009 and all communications issued by the society or by Assistant Registrar stating that the benefits are due only on reclassification as Class IV society are **W.P.(C) No. 35944 of 2015** ## **-: 4 :-** therefore illegal and unsustainable. 5. A counter affidavit had been filed by the 2[nd] , 3[rd] and 4[th] respondents contending that the society had been classified as a Class II society with effect from 01.07.1984. It is further stated that the society was reclassified as Class IV with effect from 01.04.2009, by order of the Joint Registrar dated 20.09.2012. It is further stated that the 5[th] respondent society continued as Class II till 01.04.2009 due to the laches in administration and neglect on the part of the management of the society, since the 5[th] respondent had not applied for reclassification of the society before 2012. It is further stated that the society had been reclassified as Class III with effect from 01.04.2012 and 01.04.2013 respectively **.** It is stated that the employees of the society enjoyed the benefits of Class II society, during 2009-2012 and the decision to reclassify the society as Class IV was taken only in 2012. The proposal for **W.P.(C) No. 35944 of 2015** ## **-: 5 :-** approval of the society as Class II with effect from 01.04.2013 is also said to be pending before the Joint Registrar. It is further stated that the society is legally bound to implement the pay revision as on 01.04.2009 to its employees in accordance with classification of the society as on the said date. 6. A counter affidavit has been placed on record by the 5[th] respondent also, wherein it is stated that the society had been reclassified as Class IV society with effect from 01.04.2009 by the Joint Registrar by proceedings dated 20.09.2012. It is further contended that the petitioners cannot claim benefits of the pay revision as employees of Class II society with effect from 01.04.2009. It is further submitted that the petitioners who were also parties to an earlier writ petition cannot maintain this writ petition with the same reliefs. 7. I have considered the contentions with **W.P.(C) No. 35944 of 2015** ## **-: 6 :-** reference to the statutory provisions as contained in Section 80 of the Kerala Co-operative Societies Act, Rule 182 and Appendix III of the Kerala Co-operative Societies Rules. As regards the question of maintainability of this writ petition, I find that this Court by its order dated 9.10.2015 in I.A. No.349 of 2015 in R.P. No.69 of 2015 in W.P.(C) No.2565 of 2012 specifically saved the right of the petitioners for filing a fresh writ petition. In the above view of the matter, I hold that the present writ petition is maintainable. 8. With regard to the contentions urged by the learned counsel for the petitioners, as to the eligibility of the employees of the society for the benefits of the pay revision as Class II society, I find from the documents produced that the society had continued to be classified as a Class II society as on 01.04.2009. Section 80(1) of the Kerala Co-operative **W.P.(C) No. 35944 of 2015** ## **-: 7 :-** Societies Act provides for classification of societies according to their type and financial position. Rule 182 (1) of the Kerala Co-operative Societies Rules provides for classification of societies as shown in Appendix III. A reading of Rule 182(1) would make it abundantly clear that there is no power conferred for any deemed classification or retrospective reclassification going by the Act and Rules. The reclassification of the society by the Joint Registrar as a Class IV society was only on 20.09.2012. In the above view of the matter, the contention raised by the society to the effect that the reclassification would have retrospective operation and would therefore disentitle the employees of the society from claiming the benefits of pay revision as employees of Class II credit society cannot be accepted. This is more so in view of the fact that going by Ext.P16 which is document of the 5[th] respondent society itself it is seen that the society had a working capital of 17.75 **W.P.(C) No. 35944 of 2015** ## **-: 8 :-** crores during the year in question. 9. In any view of the matter, even if the reclassification was called for, unless such reclassification had been carried out as on the date of the effect of pay revision, i.e., on 01.04.2009, such retrospective reclassification cannot be carried out to the detriment to the employees of the society. This legal position has the support of a decision of the Apex Court in _**Vice Chancellor, M.D. University, Rohtag v. Jahan Singh**_ [(2007) 5 SCC 77] wherein it has been held that unless express power is provided for issuing orders with retrospective effect, the actions or orders of persons or bodies delegated with power can only be prospective in operation. 10. In the above view of the matter, I am of the opinion that the orders implementing pay revision in the 5[th] respondent society treating it as a class IV society, cannot be sustained. Exts.P14 and P17 orders are **W.P.(C) No. 35944 of 2015** ## **-: 9 :-** therefore quashed. It is directed that respondents 1 to 4 shall take emergent steps to see that Ext.P2 pay revision is implemented by the 5[th] respondent society, treating the society as Class II society. All monetary benefits due and arrears thereof shall be calculated and paid to the eligible employees by the 5[th] respondent within four months from the date of receipt of a copy of this judgment. Writ Petition is ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** DST Paragraph 10 of the judgment dated 16/03/2017 in W.P.(C) No.35944/2015 is reviewed and modified by deleting the 2[nd] sentence in the said paragraph which reads as “Exhibits P14 and P17 orders are therefore **W.P.(C) No. 35944 of 2015** ## **-: 10 :-** quashed.”, as per order dated 09/10/2017 in I.A. No.14155/2017 in W.P.(C) No.35944/2015. Sd/Registrar (Judicial)