O.P.No.29538/2001 & W.P.(C) No.17494/2004

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 24TH DAY OF MAY 2018 / 3RD JYAISHTA, 1940** **OP.No. 29538 of 2001** ## **PETITIONER(S)** **KERALA STATE HANDLOOM WEAVERS CO-OPERATIVE SOCIETY LIMITED,PB.NO.64, THIRUVANANTHAPURAM-695001, REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADVS.SRI.M.K.CHANDRA MOHANDAS SRI.C.S.MANILAL** **SRI.T.M.RAMAN KARTHA, SC** ## **RESPONDENT(S)/RESPONDENTS IN OP:** **1. THE DEPUTY LABOUR COMMISSIONER, KOTTAYAM (APPELLATE AUTHORITY UNDER THE KERALA SHOPS AND COMMERCIAL ESTABLISHMENT ACT, 1960).** **2. R. SOMASEKHARA PILLAI, SURESH BHAVAN, MANNAM NAGAR P.O., PERUMPULIKKAL, PANTHALAM. [DIED]** **3. STATE OF KERALA REPRESENTED BY THE SECRETARY, TO GOVT. LABOUR AND REHABILITATION DEPT, TRIVANDRUM.** *** ADDL. R4 TO R8 IMPLEADED(LEGAL HEIRS OF DECEASED 2ND RESPONDENT)** **ADDL. R4: P.V. VIJAYAMMA (WIFE OF SOMASEKHARAN PILLAI), AGED 64 YEARS,RESIDING AT SURESH BHAVAN, MANNAM NAGAR P.O., PERUMPULICKAL, PANDALAM-689501, PATHANAMTHITTA.** - **ADDL. R5. SURESH KUMAR (S/O. OF SOMASEKHARAN PILLAI), AGED 42 YEARS, RESIDING AT SURESH BHAVAN,** - **MANNAM NAGAR P.O., PERUMPULICKAL, PANDALAM-689501, PATHANAMTHITTA.** **ADDL.R6. SUNANDHA S (W/O . SAJIKUMAR),AGED 39 YEARS, RESIDING AT NEDIYAVILAYIL HOUSE, KUDASSANAD, POOZHICADU, PANDALAM, PATHANAMTHITTA-689512.** ## **PBS** **OP.No. 29538 of 2001** **ADDL.R7. SUDHA.S (W/O. SURESH KUMAR),** **AGED 36 YEARS, RESIDING AT SURESH BHAVAN, PONGALADI, THATTA (VIA), ADOOR-691523, PATHANAMTHITTA DISTRICT.** **ADDL.R8. SUNIL KUMAR,AGED 33 YEARS, SURESH BHAVAN, MANNAM NAGAR P.O., PERUMPULICKAL, PANDALAM-689501, PATHANAMTHITTA DISTRICT.** - **ADDL.R4 TO R8 ARE IMPLEADED AS PER ORDER DT. 18/11/16 IN I.A.NO. 1432/16 IN M.J.C.NO. 194/2016** **R1 BY ADV. SRI.C.J.JOY** **R3 BY GOVERNMENT PLEADER SMT. PRIYA SHANAVAS** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24-05-2018, ALONG WITH WP(C) 17494/2004,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **PBS** **OP.No. 29538 of 2001** ## **APPENDIX** ## **PETITIONER'S EXHIBITS & ANNEXURE** **EXHIBIT P1 TRUE COPY OF THE PRELIMINARY ORDER DATED 8/5/1996 IN S.A.NO. 1/89 PASSED BY THE 1ST RESPONDENT. EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 20.3.2000 IN S.A.NO. 1/89 PASSED BY THE 1ST RESPONDENT , APPELLATE AUTHORITY. ANNEXURE A A TRUE COPY OF THE LIST OF CASES HANDED OVER BY THE PREVIOUS COUNSEL TO THE NEW COUNSEL.** **RESPONDENT'S EXHIBIT NIL** **/TRUE COPY/** **PS TO JUDGE** **PBS 31/05/2018** ## **A.MUHAMED MUSTAQUE, J.** _**********************************************************************************************************_ ## O.P.No.29538/2001 & W.P.(C) No.17494/2004 _***********************************************************************************************************_ Dated this the 24[th] day of May, 2018 ## JUDGMENT These writ petitions concern an order passed by the Appellate Authority under the Kerala Shops and Commercial Establishment Act, 1960(hereinafter referred as 'Act, 1960'). One Somasekhara Pillai (hereinafter referred as 'employee') while working with the Kerala State Handloom Weaver's Co-operative Society (hereinafter referred as 'employer') was dismissed from the service pursuant to a disciplinary action. He approached the Appellate Authority, constituted under Section 18 of the Act, 1960, challenging the disciplinary proceedings and punishment. By a preliminary order passed by the Appellate Authority, it was found that enquiry in the disciplinary proceedings was concluded by following the principles of natural justice. This O.P.No.29538/2001 & W.P.(C) No.17494/2004 2 preliminary order was passed by an officer, namely, Smt.K.P.Sisily, Deputy Labour Commissioner. Thereafter, the matter was heard by another officer, namely, P.Vasu, who passed the final order in this matter. In the final order, the officer adverted to the merits of the evidence and found that the dismissal of employee from his employment was illegal and against natural justice and ordered to reinstate the employee. It was further ordered that if the employer fails to reinstate the employee, the employer shall pay an amount of Rs.2,55,000/-as compensation in lieu of reinstatement in addition to the back wages awarded. 2. The final order is challenged by the employer in W.P.(C) No.29538/2001. The employee also challenged the preliminary order originally passed in W.P.(C) O.P.No.29538/2001 & W.P.(C) No.17494/2004 3 No.17494/2004. Both matters were heard together. It is appropriate to dispose the cases by a common judgment. 3. The learned counsel for the employer raised a question regarding maintainability of the application before the Appellate Authority under Section 18 of Act, 1960. Therefore, it is appropriate to refer on the maintainability of application under Section 18. It was argued by the learned counsel for the employer that the employer is a Co-operative Society and therefore, he is having a in-built mechanism to file an appeal before the Board. Apart from that, it was argued that an employee of a Co-operative Society cannot approach an authority under the Act, 1960, which is a general enactment, since he has a remedy under the special enactment under the Co-operative Societies Act. The learned counsel for the employer placed reliance O.P.No.29538/2001 & W.P.(C) No.17494/2004 4 on the judgment of this Court in Neelakantan Nair v. Deputy Labour Commissioner [1993(2) KLT SN 8], wherein the learned single Judge of this Court had taken a view that an employee of Co-operative Society dismissed from the service, cannot file an appeal under Section 18 of the Act, 1960, as such appeal is not maintainable under the above provision. The learned counsel also placed reliance on the judgment of the Hon'ble Supreme Court in Annamma v. Cochin Co-operative Hospital Society Ltd.[2018 (1) KLT 414(SC)] to argue that the remedy is either under the Cooperative Societies Act, 1969 or under the Industrial Disputes Act, 1947 and therefore, the employee cannot resort to the provisions of the Act, 1960. Pending these writ petitions, the employee passed away. His legal heirs are not prosecuting the case. The learned counsel for the O.P.No.29538/2001 & W.P.(C) No.17494/2004 5 employee would argue that there is no legal bar for an employee to approach the appellate authority under the Act, 1960. Going by the judgment in Annamma 's case, (supra) the employee is having an option to choose any one forum out of the two forums available to him under the two Acts. According to the learned counsel for the employee, the employee is not a workman within the meaning of the Industrial Disputes Act and therefore, he cannot resort to the provisions under the Industrial Disputes Act, which would not apply to him. It is argued that in the light of Annamma 's case(supra), the choice is left to the employee and it cannot be said that the Cooperative Societies Act exclude the provisions of the Act, 1960, so far as the employee is concerned. O.P.No.29538/2001 & W.P.(C) No.17494/2004 6 4. It is to be noted that the Act, 1960 as well as the Co-operative Societies Act confers concurrent jurisdiction upon the authorities to entertain and adjudicate such dispute. It cannot be said that both the provisions are inconsistent or repugnant when more than one forum is provided for thrashing out the dispute between the employer and its employee, the employee is having a choice to select either of the forum. He cannot approach both authorities. Having gone through the various provisions of the enactments, it can be seen that the provisions therein do not exclude the jurisdiction of other forum entertaining such complaint and decide the dispute. In the Annamma 's case (supra), the Hon'ble Supreme Court, in fact, considered the issue whether the Labour Court/Tribunal would have the jurisdiction to decide a O.P.No.29538/2001 & W.P.(C) No.17494/2004 7 dispute between the employee and employer which is a Co-operative Society. The Hon'ble Supreme Court after adverting to the various provisions of the Industrial Disputes Act and the Co-operative Societies Act, held that both the enactments confer concurrent jurisdiction and therefore, the employee is entitled to exercise the option, choosing either of the forum under the above enactments. 5. In the light of the above, I am of the view that the Appellate Authority as well as the authority under Section 69 of the Co-operative Societies Act and the Act, 1960 are having concurrent jurisdiction to entertain such dispute. The employee has opted the forum under the Act, 1960 and this Court is of the view that such appeal is maintainable. In the light of the Annamma 's case (supra), I am of the view that in Neelakantan Nair ' s case (supra), O.P.No.29538/2001 & W.P.(C) No.17494/2004 8 the learned single Judge of this Court lost its binding force. 6. The next question is on the merit of the challenge. The learned counsel for the employee confronted with the situation that two contradictory orders in regard to the validity of the enquiry, attempted to justify the final order stating that so far as the preliminary order is concerned, it has to be treated as an order passed on a finding that the procedural aspect of natural justice have been complied and in so far as the final order is concerned, the finding was pointing out paucity of evidence to find the misconduct on the part of the employee. Therefore, it was argued that reasoning in both orders are different and the orders cannot be treated as mutually contradictory. 7. On the other hand, the learned counsel for the employer would submit that the orders are mutually O.P.No.29538/2001 & W.P.(C) No.17494/2004 9 destructive in regard to the finding on validity of enquiry. In the preliminary order, it was categorically found that the principles of natural justice have been complied and in the final order, it was found that there was a denial of natural justice. In that view of the matter, both orders cannot remain together. It is to be noted that the employee has also challenged the preliminary order, originally passed in the matter. 8. Having scanned through the final order in the matter, in fact, it can be seen that the officer who presided as the appellate authority had not adverted to the earlier order passed in the matter (preliminary order). The reasoning and finding in the final order would clearly show that the appellate authority found that there was denial of natural justice to the employee in adducing evidence. In O.P.No.29538/2001 & W.P.(C) No.17494/2004 10 such circumstances, as rightly pointed out by the learned counsel for the employer, both orders are contradictory to each other. There is a categorical finding in the final order that the conduct of the enquiry itself was wholly illegal and perverse and was conducted in a prejudicial manner. That being the case, it would amount to a review of the earlier preliminary order passed in the matter. In such circumstances, this Court has no option but to set aside both the orders to pave way for reconsideration by the appellate authority. Therefore, this Court is of the view that the impugned orders challenged in both the writ petitions, will have to be set aside. The matter shall be considered afresh by the appellate authority after affording an opportunity to the petitioner. It is made clear that both the preliminary and final order in the matter are set aside. O.P.No.29538/2001 & W.P.(C) No.17494/2004 11 The parties are directed to appear before the Appellate Authority on 27.6.2018. Thereafter, the appellate authority shall dispose the matter within a further period of three months. The writ petitions are disposed of as above. Sd/- ## **A.MUHAMED MUSTAQUE, JUDGE** ln