RP No. 346 of 2020 in WA No. 8 of 2019

_**RP.346/2020 IN WA.8/19**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 7[TH] DAY OF JULY 2022 / 16TH ASHADHA, 1944** ## **RP NO. 346 OF 2020** ## **AGAINST THE ORDER/JUDGMENT IN WA 8/2019 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/S:** SUDHA P., AGED 45 YEARS D/O.VISWANATHAN P., PANANCHIKUNNATH, MANJAKKAD, (PO) SHORANUR, PALAKKAD - 679 121. BY SUDHA P.,(Party-In-Person) ## **RESPONDENT/S:** 1 THE AMBALAPARA SERVICE CO-OPERATIVE BANK LTD. NO. 1512, AMBALAPARA, (PO) AMBALAPARA, PALAKKAD - 679 512. 2 THE CO-OPERATIVE ARBITRATION COURT (NORTHERN), KOZHIKODE FIFTH FLOOR, HOUSEFED COMPLEX, SASTHRI NAGAR ROAD, ERANHIPALAM, KOZHIKODE - 673 006. 3 THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM, UNNAMED ROAD, VANROSS, PALAYAM, THIRUVANANTHAPURAM - 695 034. BY ADV P.RAMAKRISHNAN(B/O) THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _**RP.346/2020 IN WA.8/19**_ 2 **K.VINOD CHANDRAN & V.G.ARUN, JJ. ----------------------------------------------R.P.No. 346 of 2020 in W.A.No.8 of 2019 ----------------------------------------------Dated this the 7[th] day of July, 2022** ## **O R D E R** ## _**Arun, J.**_ This review petition is an offshoot of the petitioner’s relentless crusade against the order dismissing her from the service of the first respondent Bank. The essential facts are as under; The petitioner, while working as Peon in the first respondent Bank, was terminated from service on 25.6.2008. The disciplinary committee of the Bank dismissed her appeal against the order of termination. Thereupon, she preferred ARC.No.106 of 2011. By award dated 6.3.2018, the Co-operative Arbitration Court set aside the punishment of dismissal and directed reinstatement with immediate effect, but without back wages and service benefits. Being aggrieved by the award, to the extent it denied back wages to her, the petitioner preferred appeal No.24 of 2018 before the Co-operative Tribunal. On their part, the first respondent filed revision petition No.57 of 2018 against the same award. The first respondent’s challenge was against setting aside the order of dismissal and direction to reinstate the petitioner in service. While the revision and appeal were pending before the Co-operative _**RP.346/2020 IN WA.8/19**_ 3 Tribunal, the petitioner filed W.P.(C) No.19899 of 2018 before this Court seeking enforcement of the directions in the award. The writ petition was disposed of by judgment dated 10.8.2018, directing the Joint Registrar to take necessary action in accordance with the law, subject to any interim or final orders to be passed by the Co-operative Tribunal. Thereafter, the revision petition and appeal were disposed of by the Co-operative Tribunal on 30.08.2018, upholding the award to the extent the punishment of dismissal was set aside and reinstatement ordered. The award was interfered with to the extent it denied back wages and service benefits to the petitioner. Consequently, the first respondent was directed to grant all service and monetary benefits. 2. The first respondent has challenged the award of the Cooperative Arbitration Court and judgment of the Co-operative Tribunal in W.P(C).No.30582 of 2018. While admitting the writ petition on 18.09.2018, this Court stayed the operation of the award and the judgment. Petitioner filed I.A.No.2 of 2018, seeking to vacate the interim order. The prayer for vacating the interim order was declined _vide_ order dated 05.11.2018. The petitioner challenged that order in W.A.No.8 of 2019 and the appeal was dismissed as per judgment dated 08.02.2019. This petition is filed seeking review of the judgment on the premise that there are errors apparent on the face of the judgment. 3. The petitioner, appearing in-person, put forth various _**RP.346/2020 IN WA.8/19**_ 4 contentions. The primary contention is that the learned Single Judge had committed a grave mistake in refusing to vacate the interim order, _-_ relying on the decision in _Ambika v. Kottappadi Service Co operative Bank Ltd._ [2018 (3) KLT 779], which decision was rendered based on _-_ the decision in _Maharashtra State Co operative Housing Finance Corporation Ltd. v. Prabhakar Sitaram Bhabange_ [(2017) 5 SCC 623]. It is contended that the Apex Court decision was rendered on an interpretation of the provisions of the Maharashtra Co-operative Societies Act, which are distinct from the related provisions in the Kerala Co-operative Societies Act. Therefore, the decision in _Ambika’s_ case is faulty and requires reconsideration. 4. The other contention is that the direction in W.P.(C) No.19899 of 2018, requiring the Joint Registrar to take steps for implementing the award of the Co-operative Arbitration Court, has become final. Without challenging that judgment, the first respondent cannot assail the award and judgment of the Arbitration Court and Co-operative Tribunal. This crucial flaw in the first respondent’s writ petition was not noted by the single Judge while staying the impugned award/judgment. It is also contended that the first respondent had challenged the award of the arbitration court by filing a revision petition instead of appeal. The scope of revision being limited and the petitioner’s appeal having been allowed, the single Judge committed gross illegality by granting an _**RP.346/2020 IN WA.8/19**_ 5 interim order. None of these contentions were considered while declining to vacate the interim order. The Division Bench also refused to consider the contentions and rejected the writ appeal on the ground that the order impugned in the appeal is not an appealable order under Section 5(1) of the Kerala High Court Act. The Division Bench ought to have found that the three aspects to be taken into account for granting an interim relief, _viz_ ; balance of convenience, irreparable injury and prima facie case are in the petitioner’s favour. Instead, it was wrongly observed that if ultimately the writ petitioner's contentions are found against, the impugned orders can be implemented and the petitioner compensated adequately. 5. Adv.P.Ramakrishnan, learned Counsel for the first respondent submitted that the writ appeal was dismissed, on finding that the challenge is against an order refusing to vacate the interim order granted in a pending writ petition. For arriving at such a conclusion, this Court referred to Section 5(1) of the Kerala High Court Act and relied on the Full Bench decision in _K.S.Das v. State of Kerala_ [1992(2) KLT 358]. It is pointed out that the correctness of the dictum in _Ambika’s_ case (supra) is under consideration before the Full Bench and the petitioner’s attempt is to challenge that decision collaterally. The petitioner had challenged the judgment in W.A.No. 8 of 2019 before the Supreme Court and her SLP was dismissed, on noticing that writ petition _**RP.346/2020 IN WA.8/19**_ 6 is pending before the High Court. While dismissing the SLP, the Supreme Court requested the High Court to consider listing the writ petition filed by the first respondent at an early date, preferably within a period of three months from the date of receipt of certified copy of the order, to facilitate finality being brought to the dispute under consideration. Without making any effort to bring up the writ petition for hearing, the petitioner has filed this review petition. The fact that the Supreme Court declined to entertain the Special Leave Petition filed against the very same judgment for the reason that writ petition is pending before this Court also assumes relevance. In _Kunhayammed v. State of Kerala_ [(2000) 6 SCC 359], the Apex Court summed up its conclusions on the maintainability of a review petition before the High Court after dismissal of the Special Leave Petition filed against the same judgment before the Supreme Court. Later, in _Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd._ [(2019) 4 SCC 376], the Apex Court has reiterated that _Kunhayammed_ lays down the correct law .Going by the dictum laid down in the above decisions, the review petition is not maintainable. 6. A perusal of the impugned judgment shows that the petitioner’s writ appeal was dismissed based on the dictum in _K.S.Das_ , on finding that the appeal does not fall within the category of cases in which appeal is maintainable against an interlocutory order passed in a _**RP.346/2020 IN WA.8/19**_ 7 pending writ petition. Despite the assertive submissions of the petitioner, we find no reason to come to a different conclusion. Despite the Division Bench having doubted the dictum and referred the question to a Full Bench, the binding precedent does not lessen in rigour unless it is overturned by the Full Bench. 7. As to the challenge against maintainability of the review, insofar as there is no declaration of law by the Supreme Court under Article 141 or a statement of law binding the parties, a mere direction or request to dispose the writ petition will not amount to merger, without which the dictum in _Kunhayammed and Khoday Distilleries_ has no application. As such, we find the review petition to be maintainable, but however the present one, not falling within the contours of a review. Having held so, we are also of the considered opinion that in view of the observations in the SLP order, it would have been prudent for the petitioner to have taken efforts to bring up the writ petition for consideration, instead of filing the review petition. The Registry is also at fault for not listing the writ petition, despite the request of the Supreme Court, which in every sense should be taken by the High Court to be in the spirit of a direction. 8. As regards the contention based on balance of convenience, irreparable injury and loss, we find the said aspects to be in favour of the first respondent for the time being, subject, of course, to the loss _**RP.346/2020 IN WA.8/19**_ 8 suffered by the petitioner being offset, by appropriate measures depending on the final decision in the writ petition. 9. The other contentions urged by the petitioner can only be perceived as an attempt to re-hear the appeal, which is impermissible. We direct the Registry to post the writ petition immediately before the learned Single Judge having roster and request the learned Single Judge to take up the writ petition for consideration on an early date, in view of the observations in the SLP order. In the result, the review petition is dismissed with the above observations. **Sd/-** **K.VINOD CHANDRAN, JUDGE** **Sd/-** **V.G.ARUN, JUDGE** _vgs_ _**RP.346/2020 IN WA.8/19**_ 9 ## **APPENDIX OF RP 346/2020** PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF ORDER IN SPECIAL LEAVE PETITION NO.13617/2019 BY THE HON'BLE SUPREME COURT.