OP(C).No. 1620 of 2016 (O) & OP(C).No. 1626 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **WEDNESDAY, THE 13TH DAY OF JUNE 2018 / 23RD JYAISHTA, 1940** ## **OP(C).No. 1620 of 2016 (O)** **---------------------------** **APPEAL. NO. 9/2016 of KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM.** **----------------** ## **PETITIONERS :** - **------------------** **1. THE THUMBOOR SERVICE CO-OP BANK LTD NO. 359 THUMBUR, VELLANGALOOR (VIA), THRISSUR DIST. PIN-680 662. REPRESENTED BY ITS SECRETARY.** **2. MANAGING COMMITTEE OF THUMBUR SERVICE CO-OPERATIVE BANK LTD. NO. 359, THUMBUR , VELLANGALLOOR (VIA) THRISSUR DISTRICT PIN - 680662. REPRESENTED IN ITS PRESIDENT.** ## **BY ADVS.SRI.P.N.MOHANAN SRI.C.P.SABARI** ## **RESPONDENTS :** - **-----------------------** **1. N.C. SOBHY S/O. N.L. CHAKKAPPAN, AGED 45 YEARS, RESIDING AT NERAPARAMBIL HOUSE, P.O., KALLETTUKARA, PIN-680 683, THRISSUR.** **2. KERALA CO-OPERATIVE TRIBUNAL, REPRESENTED BY SECRETARY, THIRUVANANTHAPURAM-695 001.** - **R1 BY ADVS. SRI.THAMPAN THOMAS** - **SRI.B.V.JOY SANKER SRI.SHAFFIE THOMAS SRI.K.HAMZA SRI.T.R.HARIKUMAR** **R2 BY SENIOR GOVERNMENT PLEADER** **SRI. SAIGI JACOB PALATTY BY SRI.B.SHOK SHENOY (AMICUS CURIAE)** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13/6/2018, ALONG WITH OPC. 1626/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp 23/6/2018** **OP(C).No. 1620 of 2016 (O) -------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** **P1 A TRUE COPY OF THE ORDER DATED 27.5.2014 IN ARC NO.63/2012.** **P2 TRUE COPY OF THE JUDGMENT DATED 24.5.2016. IN APPEAL NO. 9/2016.** **P3 TRUE COPY OF THE ORDER DATED 28.4.2016 OF THE TRIBUNAL IN UNNUMBERED APPEAL FILED AGAINST INTERIM ORDER IN ARC NO. 26/2016.** **RESPONDENT(S)' EXHIBITS :** ## **NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE** **bp 23/6/2018** ## **ALEXANDER THOMAS, J.** **-------------------------------------------------OP(C) No.1620 of 2016 & OP(C) No.1626 of 2016 -------------------------------------------------Dated this the 13[th] day of June, 2018** ## **JUDGMENT** The 1[st] petitioner in these petitions is the Thumboor Service Cooperative Bank Ltd. No.359, Thrissur District and the 2[nd] petitioner is the Managing Committee of the 1[st] petitioner. The 1[st] respondent in these two petitions had initiated ARC Nos.63 and 64 of 2012, challenging the order of dismissal imposed on them by the above said Co-operative Bank employer consequent to domestic enquiry proceedings on the allegations of alleged misappropriation and allied allegations. 2. Before the Arbitration Court constituted under the provisions of the Section 69 the above said arbitration reference cases were initiated by the 1[st] respondent employee and were agitated in terms of the provisions contained in Section 69 of the Kerala State Co-operative Societies Act, 1969. Before the Arbitration Court the preliminary issue _OP(C) No.1620 of 2016 & OP(C) No.1626 of 2016_ **2** was taken up for consideration as to whether the said domestic enquiry proceedings were conducted by the Enquiry Officer in accordance with the principles of natural justice. The Arbitration Court as per order dated 27.05.2014 [produced as Ext.P1 in both the OPCs] had found that the Enquiry Officer had conducted domestic enquiry proceedings in proper manner, that there is no mistakes or flaw in that report and that natural justice has been duly complied with. Being aggrieved by the findings in Ext.P1 order dated 27.05.2014 the employee concerned [1[st] respondent] had preferred WP(C) Nos.16585 & 16586 of 2014 before this Court so as to challenge the said order at Ext.P1 herein. In those proceedings the petitioner herein [who are impleaded as respondents 2 & 3] had taken up a contention that the petitioners therein/employees have an efficacious alternative statutory remedy by filing statutory appeal under Section 82 of the Act before the Kerala Co-operative Tribunal. The said submission made by the petitioners herein/respondents therein was not contested by the employees concerned and they had also submitted before this Court that they may be given an opportunity to raise this dispute before the statutory appellate forum as pointed by the employer. Resultantly this Court had _OP(C) No.1620 of 2016 & OP(C) No.1626 of 2016_ **3** passed a common judgment dated 27.11.2015 finally disposing of WP(C) Nos.16585 & 16586 of 2014, a copy of which is produced as Ext.R1(b) in the Counter Affidavit filed in this original petition. The said judgment reads as follows: _“Heard both sides._ _2. In the face of objection taken by the respondents on the grounds of alternative remedy, the learned counsel for the petitioners has submitted that the petitioners are willing to approach the Kerala Cooperative Tribunal, Thiruvananthapuram. He has, nevertheless, submitted that since the petitioners bona fide approached this Court on time, any delay that may have ensued while the petitioners pursued the writ petition should not come in the way of the proceedings to be initiated by the petitioners before the learned Tribunal._ _3. The learned counsel for respondents 2 and 3 has submitted that the Bank is willing to have the matter considered by the learned Tribunal on merits. And the bank may not have any objection concerning condoning the delay, if any._ _In the facts and circumstances, this Court closes the writ petitions. It is further made clear that the learned Tribunal at the time of considering the appeals, if filed, may take into account the delay that has occurred while the petitioners have pursued the writ petition and also the concession made by the respondent Bank.”_ 3. In terms of the above said directions in Ext.R1(b) judgment, which had been issued primarily on the basis of the submissions made by the employer, the contesting respondents herein [employees] had filed statutory appeals before the Co-operative Tribunal under Section _OP(C) No.1620 of 2016 & OP(C) No.1626 of 2016_ **4** 82 of the Act. The Co-operative Tribunal, after hearing both sides, had rendered Ext.P2 order dated 24.05.2016 allowing the said appeals with the finding that no proper reasons whatsoever have been stated by the Arbitration Court in arriving at the conclusion that the domestic enquiry proceedings have been conducted properly and that the Arbitration Court is legally obliged to pass a recent order in that regard. At that juncture the petitioners herein had preferred the instant OPCs so as to challenge Ext.P2 appellate order dated 24.05.2016 of the Kerala Appellate Tribunal on the ground that the matter could not have in terms of Section 82 in as much as Ext.P1 order arose only then a preliminary issue and it is not a final award etc. It is on this premise that the legality and correctness of Ext.P2 appellate order of the Tribunal has been challenged by the petitioners concerned. 4. Heard Sri.V.N. Mohanan, the learned counsel appearing for the petitioners [employer], Sri.T.R. Harikumar, the learned counsel appearing for the 1[st] respondent in these two cases [employees concerned] and Sri.Saigi Jacob Palatty, the learned Senior Government Pleader appearing for the 2[nd] respondent. 5. The main issue to be decided in these cases as to whether or not _OP(C) No.1620 of 2016 & OP(C) No.1626 of 2016_ **5** appeal filed by the employees before the Co-operative Tribunal in terms of Section 82 of the Act so as to impugn Ext.P1 order of the Arbitration Court is maintainable. Sections 70 & 82 of the Act provide as follows: _“_ _**70. Award on disputes : -** (1) The Co-operative Arbitration Court, on receipt of reference of a dispute under sub-section (1) of Section 69, shall pass an award within one year in accordance with the provisions of this Act and the rules and the bye-laws made thereunder and such award shall, subject to the provisions of Section 82, be final._ _(2) The Co-operative Arbitration Court may, pending award of a dispute referred to it under Section 69, make such interlocutory orders as it may deem necessary in the interests of justice._ _(3) The Co-operative Arbitration Court shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), while trying a suit in respect of the following matters, namely :-_ - _(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath ;_ - _(ii) the discovery and production of any document or other material object producible as evidence ;_ - _(iii) the reception of evidence on affidavits ;_ - _(iv) issuing of any commission for the examination of any witness ; and_ - _(v) any other matter which may be prescribed._ _(4) The Registrar may on receipt of the reference of a dispute under sub-section (1) of Sec. 69-_ - _(a) elect to decide the dispute himself ; or_ - _(b) transfer it for disposal to any person who has been invested by the Government with powers in that behalf ; or_ _OP(C) No.1620 of 2016 & OP(C) No.1626 of 2016_ **6** ## _(c) refer it for disposal to an arbitrator appointed by the Registrar :_ _Provided that a transfer under clause (b) or a reference under clause (c) shall not be made to a person equal or superior to him in rank._ _(5) The Registrar may withdraw any reference transferred under clause (b) of sub-section (4) or referred under clause (c) of that sub-section and he may elect to decide the dispute himself or transfer it to any other person under clause (b) of sub-section (4) or refer it to any other arbitrator under clause (c) of that sub-section._ _(6) The Registrar or the person invested with powers in this behalf shall, decide the dispute or the arbitrator shall pass an award in accordance with the provisions of this Act and the rules and the bye-laws and such decision or award shall, subject to the provisions of Section 82, be final. Pending decision or award, the Registrar, such person or the Arbitrator, as the case may be, may make such interlocutory orders, as he may deem necessary, in the interests of justice.”_ _“82. Appeals to Tribunal - (1) Any person aggrieved_ _by -_ _(a) an award of the Co-operative Arbitration Court, under sub-section (1) of Section 70; or_ _(b) an order of the Registrar made under clause (ii) of sub-section (8) or clause (ii) of sub-section (9) of Section 14 ; or_ _(c) any decision of the Registrar made under subsection (6) of Section 70 ; or_ _(d) any decision under sub-section (6) of Section 70 of the person invested with powers in that behalf, by the Government ; or_ _(e) any award of the arbitrator under sub-section (6) of Section 70 ;_ _may, within sixty days from the date of such decision or award, as the case may be, appeal to the Tribunal and the Tribunal, may pass such orders on the appeal as it may deem_ _OP(C) No.1620 of 2016 & OP(C) No.1626 of 2016_ **7** _fit._ _(1A) The Tribunal shall pass an order under subsection (1) within six months with direction to communicate the copies thereof within fifteen days to the parties thereof.”_ 6. On the basis of the provisions contained in Sections 70 & 82 of the Act it is contended by the petitioners that only a final award of the Co-operative Arbitration Court as envisaged under Section 70(1) of the Act is appealable before the Tribunal as mandated in Clause (a) of Section 82 and that Clauses (b) to (e) of sub-section (1) of Section 82 deals with other contingencies etc. It is further pointed out that the award envisaged under Section 82(1)(a) of the Act could only be a final award of the Arbitration Court as envisaged in Section 70(1) and not an interlocutory order of the Arbitration Court as envisaged in Section 70(2) of the Act. 7. _Per contra_ Sri.T.R. Harikumar, the learned counsel appearing for the 1[st] respondent and the learned Senior Government Pleader appearing for the 2[nd] respondent would point out that the issue in this regard is no longer _res integra_ and has been settled by a learned Single Judge of this Court in _**Kuruppumpady Service Co-operative Bank Ltd. v. David [2008 (1) KLT 633]**_ . 8. In the above said judgment in the case in _**Kuruppumpady**_ _OP(C) No.1620 of 2016 & OP(C) No.1626 of 2016_ **8** _**Service Co-operative Bank Ltd.**_ [supra], this Court held that a decision rendered by an Arbitration Court setting aside the domestic enquiry report in the domestic enquiry proceedings and giving liberty to the parties to prove their case before it is appealable under Section 82 of the Act as the said decision to be treated as an award as envisaged in Section 82(1)(a) of the Act during the course of proceedings. The question raised in the said case is as to whether a decision by the Arbitration Court by setting aside the report in the domestic enquiry proceedings and giving liberty to the parties to prove the case before it is appealable under Section 82. This Court after considering the various aspects of the matter, has held that such an impugned decision that the enquiry proceedings are initiated is not merely an interlocutory order as envisaged in Section 70(2) of the Act during the course of proceedings, because, findings of such issues resulted in answering the disputes between the parties by adjudication of the lis. Hence it was held that such an impugned decision is final as far as that matter is concerned and therefore should be treated as an award under Section 70(1) of the Act and hence it is appealable under Section 82(1)(a) of the Act and such appeal is maintainable etc. _OP(C) No.1620 of 2016 & OP(C) No.1626 of 2016_ **9** 9. This Court is in respectful concurrence with the said views expressed by the learned Single Judge of this Court in the above said reported decision. Therefore a decision that is to be rendered by the Cooperative Arbitration Court on the issue as to whether or not the domestic enquiry proceedings have been held in consonance with the principles of natural justice etc. cannot be said to be merely an interlocutory order as envisaged in Section 70(2) of the Act, but should be treated as an award in as much as determination of the said issue calls upon the Arbitration Court to answer the disputes between the parties by adjudication of the lis in that regard and therefore such a decision should be treated as final on that lis and hence should be treated as having the legal weight of an award as per Section 70(1) and hence the appeal is maintainable in terms of Section 82(1)(a) of the Act. Therefore in the light of the aspects, it is only to be held that the sole contention made by the petitioners that the appellate order is vitiated for want of appellate jurisdiction is clearly untenable and unsustainable and it is only to be rejected and accordingly it is so ordered. More importantly it is borne in mind that it was the present petitioner herein [employer concerned], who had resisted the earlier attempt made by the _OP(C) No.1620 of 2016 & OP(C) No.1626 of 2016_ **10** employees in agitating this issue before this Court by taking up the contention that the impugned Ext.P1 order herein is appealable in terms of Section 82 of the Act and that writ jurisdiction should not be afforded to the employees. In view of that stand, the employees concerned had also agreed that they should be given the opportunity to agitate the issue before the appellate forum. These aspects are clear from a mere reading of Ext.R1(b) judgment referred to herein above. No other contentions are raised by the petitioners herein and therefore the prayers in these petitions are only to be rejected. However, before parting this case, it is to be noticed that the respondents were dismissed from service as early as in August, 2012 and the impugned Ext.P2 appellate order dated 24.05.2016 the impugned order at Ext.P1 herein dated 27.05.2014 passed by the Arbitration Court was set aside and the matter was remitted to the Arbitration Court. Thereafter the matter was taken up before this Court, which resulted in Ext.R1(b) judgment dated 27.11.2015. Therefore more than six long years have elapsed and the matter should not brook any further delay. The Co-operative Arbitration Court will ensure that the matter remitted by the Appellate Tribunal is decided after affording an opportunity of being heard to both sides. _OP(C) No.1620 of 2016 & OP(C) No.1626 of 2016_ **11** 10. The decision on the above said aspects should be rendered by the Co-operative Arbitration Court within a period of two months from the date of production of a certified copy of this judgment. The parties shall produce the certified copy of this judgment before the Cooperative Arbitration Court for necessary action. With these observations and directions, the above petitions will stand dismissed. Sd/- **ALEXANDER THOMAS, JUDGE.** //True Copy// P.A. To Judge sp/13/06/18