LOKAMALESWARAM SERVICE CO-OPERATIVE BANK LTD v N. V. MOHANADAS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **MONDAY, THE 3RD DAY OF JULY 2017/12TH ASHADHA, 1939** ## **WP(C).No. 6533 of 2013 (N) ---------------------------** **PETITIONER:** - **------------------** ## **LOKAMALESWARAM SERVICE CO-OPERATIVE BANK LTD NO249, KODUNGALLUR, THRISSUR DISTRICT REPRESENTED BY IT'S PRESIDEN, I.K.GOVINDAN, AGED 69 YEARS, S/O.KITTU.** ## **BY ADV. SMT.P.R.REENA** **RESPONDENT(S):** **-------------------------** **1. N. V. MOHANADAS S/O.VELAYUDHAN, NADUMURI HOUSE, LOKAMALESWARAM, P.O.KODUNGALLUR.** **2. DEPUTY LABOUR COMMISSIONER (AUTHORITY UNDER THE KERALA SHOPS AND COMMERCIAL ESTABLISHMENTS ACT), O/O.DEPUTY LABOUR COMMISSIONER, THRISSUR.** **R1 BY ADVS. SRI.A.JAYASANKAR** **SRI.MANU GOVIND R2 BY GOVERNMENT PLEADER SRI. C.P. PRADEEP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** ## **WP(C).No. 6533 of 2013 (N)** **APPENDIX** **PETITIONER(S) EXHIBITS** **EXHIBIT-P1: TRUE COPY OF THE PROCEEDINGS OF JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES SANCTIONING THE STAFF STRENGTH OF THE PETITIONER SOCIETY.** **EXHIBIT-P1(a): TRUE COPY OF THE BOND EXECUTED BY THE 1ST RESPONDENT ON 04.09.1995 IN FAVOUR OF THE SOCIETY.** **EXHIBIT-P2: TRUE COPY OF THE PROCEEDINGS OF THE PETITIONER SOCIETY DATED 02.04.2003.** **EXHIBIT-P3: TRUE COPY OF THE SHOP APPEAL FILED BY THE 1ST RESPONDENT BEFORE THE APPELLATE AUTHORITY DATED 21.4.2003.** **EXHIBIT-P4: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE DEPUTY COMMISSIONER IN SHOP APPEAL DATED 04.10.2005.** **EXHIBIT-P5: TRUE COPY OF THE ORDER OF THE DEPUTY LABOUR COMMISSIONER/APPELLATE AUTHORITY IN S.A.1/2003 DATED 26.11.2010.** **EXHIBIT-P6: TRUE COPY OF THE DECISION REPORTED IN 2006(1) KLT 199.** **EXHIBIT-P7: TRUE COPY OF THE DECISION REPORTED IN 1993(2) KLT SN 8 CASE NO.9.** **RESPONDENTS' EXHIBITS NIL** **/TRUE COPY/** **PA TO JUDGE** **sdr/-** ## **A.K.JAYASANKARAN NAMBIAR, J.** **............................................................. W.P.(C).No.6533 Of 2013-(N ) ............................................................. Dated this the 3[rd] day of July, 2017** ## **J U D G M E N T** The petitioner is a Service Co-operative Bank constituted under the Co-operative Societies Act. In the writ petition, the petitioner impugns Ext.P5 appellate order passed by the appellate authority under Section 18 of the Kerala Shops and Commercial Establishments Act. The facts in the writ petition would indicate that, the petitioner had employed the 1[st] respondent as a night watchman on daily wage basis with effect from 04.09.1995. The appointment on daily wage basis was resorted to since, there was no sanctioned post of night watchman in the petitioner bank. In 2003, the petitioner, by Ext.P2 order dated 02.04.2003, consequent to a Board resolution, terminated the services of the 1[st] respondent on the ground that, inasmuch as another establishment functioning under the petitioner society had engaged a night watchman on regular basis, and the said watchman was sufficient to take care of the interests of the petitioner bank as well, the services of the 1[st] -2- **W.P.(C).No.6533 Of 2013-(N )** respondent was no longer required. By Ext.P2 order, therefore, the services of the 1[st] respondent were terminated. The 1[st] respondent challenged the decision of the petitioner through an appeal filed under Section 18 of the Kerala Shops and Commercial Establishments Act. Ext.P5 is the order passed by the appellate authority under the said Act, allowing the appeal, and directing the petitioner to reinstate the 1[st] respondent in the services of the petitioner bank in the post of night watchman, with immediate effect from the date of the order, and to pay to the said person full wages from 03.04.2003 (the date of dismissal) till the date of reinstatement. It was clarified that, the 1[st] respondent would be treated as in continuous service for the purposes of receiving the aforesaid service benefits. It was further clarified that, if the petitioner was not reinstating the 1[st] respondent in service, the petitioner would have to pay a sum of Rs.70,000/- as compensation to the 1[st] respondent in lieu of reinstatement, in addition to the back wages already directed to be paid. In the writ petition, Ext.P5 appellate order is impugned, inter alia, on the contention that the dispute raised before the appellate authority was itself not maintainable inasmuch as there was an alternative remedy, that -3- ## **W.P.(C).No.6533 Of 2013-(N )** was provided for under rule 176 of the Kerala Co-operative Societies Rules, for resolution of the disputes. 2. I have heard the learned counsel appearing for the petitioner, the learned counsel for the 1[st] respondent, and the learned Government Pleader for the 2[nd] respondent. 3. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that on the facts that were before the appellate authority, the appellate authority found that, it was the admitted case that the 1[st] respondent had been employed continuously for a period of not less than six months. It was also noticed that the petitioner, in his capacity as employer, had not issued the statutory one months notice, or wages in lieu of such notice, to the 1[st] respondent before passing passing an order terminating his services. It was, therefore, that the appellate authority found that the termination order was in contravention of the requirements under Section 18 of the Kerala Shops and Commercial Establishments Act, 1960, and that the 1[st] respondent was entitled to an order in his favour in -4- **W.P.(C).No.6533 Of 2013-(N )** the appeal. As regards the relief granted by the appellate authority, I find that, after holding the termination to be illegal, the appellate authority only granted the consequential benefit of the wages payable to the 1[st] respondent for the period that he was kept out of service by the petitioner. The back wages directed to be paid in Ext.P5 appellate order is the wages, at the rate of Rs.750/- per month, which the 1[st] respondent was drawing at the time of termination of his service, and the said amount was to be paid for a period of 91 months culminating with Ext.P5 order of the appellate authority. The amount of back wages works out to Rs.68,250/- (Rs.750 x 91 months). Over and above the said amount, the petitioner was also given an option of either reinstating the 1[st] respondent or granting a compensation of Rs.70,000/- in lieu of reinstatement. Inasmuch as the petitioner has chosen not to reinstate the 1[st] respondent, I am of the view that, the award of Rs.70,000/- towards compensation is not unreasonable taking note of the fact that the 1[st] respondent has been kept out of employment for over seven years and the first respondent is now aged 64 years, and he cannot aspire for a fresh employment in any other establishment. I, therefore, find that the -5- ## **W.P.(C).No.6533 Of 2013-(N )** amount of Rs.1,38,250/- that is found payable to the 1[st] respondent by Ext.P5 order, is not unreasonable and does not call for any interference by this Court in these proceedings under Article 226 of the Constitution of India. 4. As regards the contention of the learned counsel for the petitioner that the appellate authority ought not to have entertained the appeal, taking note of the provisions of the Rule 176 of the Kerala Co-operative Societies Rules, I find that, in the instant case the relief that was sought for by the 1[st] respondent before the appellate authority one of reinstatement in service. The contract between the petitioner and the 1[st] respondent being one of personal service, it is trite that the relief of reinstatement , and thereby the enforcement of a contract of personal service, could not have been granted by a civil court, or a forum vested with the powers of a civil court, as has been reiterated by the Supreme Court in a recent judgment in **Maharashtra State Cooperative Housing Finance Corporation Limited v. Prabhakar Sitaram Bhadange [(2017) 5 SCC 623].** I am, therefore, of the view that the contention of the petitioner that the -6- ## **W.P.(C).No.6533 Of 2013-(N )** appellate authority ought not to have entertained the appeal under Section 18 is devoid of merit. The writ petition fails and is accordingly dismissed. The petitioner is directed to effect payment of the aforesaid amount of Rs.1,38,250/- (less the amount of Rs.10,000/- already paid pursuant to the interim order of this Court) to the 1[st] respondent, within one month from the date of receipt of a copy of this judgment. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/3.07.17