Sureshkumar C. and Others v. Joint Registrar of Co-operative Societies (General), Kollam and The Managing Committee of Kareepra Panchayat Service Co-operative Bank Ltd No.3827, represented by President, Kareepra, Kollam, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY ,THE 05TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940** ## **WP(C).No.4925 of 2015** ## **PETITIONERS:** - **1 SURESHKUMAR C. AGED 38 YEARS PEON, KAREEPRA PANCHAYAT SERVICE CO-OPERATIVE BANK (LTD) NO.3827, KAREEPRA, KUZHIMATHICADU P.O., KOLLAM** - **2 GEETHU MOHAN, SALES WOMAN, KAREEPRA PANCHAYAT SERVICE CO-OPERATIVE BANK (LTD) NO.3827, KAREEPRA, KUZHIMATHICADU P.O., KOLLAM.** - **3 MADHUSUDHANAN S., SALESMAN, KAREEPRA PANCHAYAT SERVICE CO-OPERATIVE BANK LTD NO.3827, KAREEPRA, KUZHIMATHICADU P.O., KOLLAM** - **4 BIJU THARAKAN, SALESMAN KAREEPRA PANCHAYAT SERVICE CO-OPERATIVE BANK (LTD) NO.3827, KAREEPRA, KUZHIMATHICADU P.O., KOLLAM** **BY ADV. SRI.P.N.MOHANAN** ## **RESPONDENTS:** - **1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) KOLLAM - 691 001.** - **2 THE MANAGING COMMITTEE OF THE KAREEPRA PANCHAYAT SERVICE CO-OPERATIVE BANK (LTD) NO.3827, REPRESENTED BY PRESIDENT, KAREEPRA, KUZHIMATHICADU P.O., KOLLAM- 691 509.** **WP(C).No.4925 of 2015** **2** **3 SAJITH BHASKAR, SARAS BAUG KUDIKKODU, NEDUMANKAVU P.O., KOLLAM DISTRICT - 691 509.** - **4 C.KRISHNANKUTTY NAIR, ASWATHI BHAVAN, VAKKANADU P.O. KOLLAM DISTRICT - 691 509.** - **5 ROBIN P.ALEX, SHREYAS THRIPPILAZHIKAM P.O. KUZHIMATHIDAKU KOLLAM DISTRICT - 691 509.** - **6 G.SREEREKHA, PRASANTHAM VAKKANADU P.O. KOLLAM DISTRICT - 691 509.** **BY ADVS. SRI.M.SASINDRAN SRI.R.SREEHARI GOVT.PLEADER SRI.S.DILIP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.4925 of 2015** **3** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ Petitioners, who have been appointed in various posts in the Kareepra Panchayat Service Co-operative Bank Ltd. No.3827, challenge Ext.P10 order of the 1[st] respondent-Joint Registrar of Co-operative Societies (General), Kollam rescinding the resolutions passed by the Bank to appoint the petitioners. The petitioners also seek to declare that services of the petitioners cannot be terminated under Rule 176 of the Kerala Co-operative Societies Rules in view of constitution of Arbitration Court under Section 69 of the Kerala Co-operative Societies Act with effect from 02.01.2003. 2. The petitioners state that in response to a notification issued by the Bank on 09.02.2011, the petitioners applied for the posts notified. A written test was conducted on behalf of the Bank for selection to the posts, by the Institute of **WP(C).No.4925 of 2015** **4** Management and Business Studies, MG University. On the basis of the written test and interview, the petitioners were appointed as Peon and Salesman on 25.11.2013. 3. According to the petitioners, the 2[nd] respondent's Bank is classified as Class I and it can appoint Salesman. Appointment of Salesmen was approved by the Joint Registrar earlier. The petitioners were appointed on 25.11.2013 and were continuing in the posts. Their probation was declared on 29.12.2014. Certain members of the Managing Committee filed a complaint before the Joint Registrar contending that the selection and appointment of the petitioners are illegal. On the basis of the said complaint, the 1[st] respondent-Joint Registrar made enquiry and found that three salesmen were appointed by the Bank though the notification published was only for one vacancy of salesman. Further more, though the posts of Attender and Peon are distinct having different pay scales, the notification published was for the post of “Attender/Peon”, which is irregular and misleading. On the basis of these findings, the 1[st] respondent **WP(C).No.4925 of 2015** **5** issued Ext.P10 order dated 06.02.2015 rescinding the resolutions of the Managing Committee of the Bank to appoint the petitioners. The petitioners state that in view of the constitution of Arbitration Court under Section 69 of the Kerala Co-operative Societies Act, 1969 ('the Act', for short), the jurisdiction of the Joint Registrar to interfere with the service matters of the employees, stands ousted. It is the further complaint of the petitioners that before issuing the impugned Ext.P10 order, the petitioners were not heard, which has resulted in violation of the principles of natural justice. The petitioners state that respondents 3 to 6, who are the Managing Committee members who participated in the Committee meeting approving the selection of the petitioners, cannot subsequently make any complaint to the Joint Registrar. 4. The learned counsel for the petitioners argued that the jurisdiction of the 1[st] respondent-Joint Registrar stands ousted in view of Section 69 of the Act. The learned counsel for the petitioners relied on the judgments of this Court in **WP(C).No.4925 of 2015** **6** _**Prakasini v. Joint Registrar** [2006 (1) KLT 199],_ _**Raveendran v. State of Kerala** [2007 (3) KLT 558],_ _**Thrissur Taluk Co-operative College Educational Society Ltd. v. Joint Registrar** [2012 (1) KLT 503],_ _**Jayarani T. v. Assistant Registrar of Co-operative Societies** [2016 (2) KLJ 446],_ _**Jeffin Thomas v. The Joint Registrar of Co-operative Societies (General)**_ [WPC.42030/2017], _**Akalakkunnam Village Service Co-operative Bank Ltd. v. Binu N. and others** [ILR 2014 (4) Ker 605]_ and _**Kanjoor Service Cooperative Bank Ltd. v. Joint Registrar of Co-operative Societies (General)** [2016 (3) KLT 73]._ The learned counsel also relied on a Division Bench judgment of this Court in W.A. No.2434/2018. 5. The learned counsel for respondents 3 to 6 as well as the learned Government Pleader appearing for respondents 1 and 2 strongly opposed the writ petition. According to the counsel for the respondents, the petitioners have been appointed against posts which are not sanctioned. Therefore, the appointment itself is void _ab initio_ . The Joint **WP(C).No.4925 of 2015** **7** Registrars of Co-operative Societies have power, duty and obligation to supervise the functioning of all Co-operative Societies functioning in Kerala. When the Joint Registrar, in exercise of his supervisory functions, detects that appointments are illegally made by a Society against posts which are not sanctioned, the Joint Registrar cannot be said to be helpless in interfering with the matter in exercise of his powers. The Joint Registrar, in such circumstances, can definitely interfere questioning the illegal appointments and rescind any resolution passed by a Society making illegal and unauthorised appointments to posts which do not exist. Any other interpretation given to the provisions of the Act and the Rules relating to the powers of the Registrar of Co-operative Societies, will undermine the supervision envisaged by the Act and the Rules. In turn, it will only give rise to commission of more illegalities by registered societies, contended the counsel for the respondents. 6. Counsel for respondents 3 to 6 relied on judgment in _**Parameswaran Kartha v. Assistant Registrar**_ reported in **WP(C).No.4925 of 2015** **8** 1992 (2) KLT 77 to contend that while the upgradation of a Society does not require approval of the Registrar, increase in the staff strength consequent thereon does require his approval and any additional staff can be appointed only after such approval. Learned counsel for respondents 3 to 6 also relied on the judgment in _**Elampal Service Co-operative Bank Ltd. v. Government of Kerala** [2000 (3) KLT 389]_ . In the said Division Bench judgment, this Court held that no approval of Registrar is necessary for appointing staff as per the staff pattern fixed but, if any change in the pattern is necessary, approval is required. 7. The counsel for the respondents further argued that when the appointments of the petitioners are illegal and against non existing posts, there is no legal requirement on the side of the Joint Registrar to issue notice and hear the petitioners. Since appointment itself is against non existing posts, compliance of the principles of natural justice by giving the petitioners an opportunity of hearing, will not in any way go to change the situation. **WP(C).No.4925 of 2015** **9** 8. I have perused the pleadings and considered the arguments raised by the counsel on either side. 9. The issue to be decided in this writ petition is as to whether jurisdiction of the Registrar/Joint Registrars conferred on them under Rule 78 of the Rules to rescind resolutions passed by societies stands excluded, consequent to the introduction of Co-operative Arbitration Courts as per Section 69. In fact, the issue is covered by a number of judgments of this Court. 10. In _**Prakasini**_ ( _supra_ ), in a dispute relating to a promotion in a Co-operative Society, a learned Single Judge of this Court held that in view of the last limb of Section 69(1) of the Act, 1969, there is a clear statutory exclusion of the authority under Rule 176 of the Kerala Co-operative Societies Rules ('the Rules', for short), which otherwise was being exercised in relation to such disputes. In the judgment in _**Raveendran** (supra)_ relating to a dispute regarding seniority of employees of a Co-operative Society, a Division Bench of this Court held that, after the coming into force of Act 1 of **WP(C).No.4925 of 2015** **10** 2000 with effect from 02.01.2003, a dispute in connection with employment of officers and servants of different classes of societies specified in sub-Section (1) of Section 80, has to be decided by the Arbitration Court and not by the Joint Registrar or by the Government. 11. In the judgment in _**Thrissur Taluk Co-operative College Educational Society Ltd.**_ ( _supra_ ), in a matter relating to the dismissal of an employee, a learned Single Judge of this Court held that in service matters, there is a statutory exclusion for the Joint Registrar to entertain complaints seeking to invoke Rule 176 of the Rules. 12. _**Akalakkunnam Village Service Co-operative Bank Ltd.**_ ( _supra_ ) was a case where complaints regarding notification for appointments were made before conducting examination for appointment. In the said case, the Apex Court held that since the respondent therein moved the High Court challenging the Circulars immediately after the notification and prior to the conduct of examination, the jurisdiction of the Registrar is not excluded and the issue will **WP(C).No.4925 of 2015** **11** not fall within the ambit of disputes to be resolved under Section 69 of the Act, 1969. 13. In _**Jayarani T.**_ ( _supra_ ), the issue was cancellation of appointments by the Assistant Registrar. A learned Single Judge of this Court held therein that if the dispute is raised by an employee or any other person than the employer itself, the recourse ought to be to the Co-operative Arbitration Court. The learned Single Judge held that the power conferred on the Registrar is a species of subordinate legislation. Section 69 of the Act, on the other hand, provides for the dispute resolution mechanism involving the quasi judicial authorities and therefore, the question of a private person approaching the Registrar or the employer complaining against the appointments, does not arise. 14. In _**Kanjoor Service Co-operative Bank Ltd.**_ ( _supra_ ), in a matter relating to disciplinary proceedings, a learned Single Judge of this Court held that Rule 176 is an omnibus provision and when there is a specific forum for adjudicating service disputes, a Joint Registrar cannot invoke **WP(C).No.4925 of 2015** **12** his powers under Rule 176. In the judgment in W.P.(C) No.42030/2017, the issue considered was relating to cancellation of appointments. In the said judgment, a learned Single Judge of this Court held that jurisdiction of the Joint Registrar under Rule 176 of the Kerala Co-operative Societies Rules stood excluded by operation of Section 69 of the Act and that the subordinate legislation would essentially have to give way to the bar of jurisdiction as provided in the parent Act. The issue of interference in appointments invoking Rule 176 came up for consideration before a Division Bench of this Court in Writ Appeal No.2434/2018. The Division Bench held that powers under Rule 176 can perhaps be exercised before the appointment is made since the jural relationship to raise a dispute under Section 69 of the Act arises only after the appointment. 15. In this case, the 1[st] respondent-Joint Registrar of Co-operative Societies (General) has exercised his powers subsequent to the appointments. Therefore, in view of the aforesaid judgments pronounced by this Court, this writ **WP(C).No.4925 of 2015** **13** petition is only to be allowed. Accordingly, Ext.P10 order is set aside. Writ petition is allowed as above. Sd/- **N. NAGARESH, JUDGE** aks/30.03.2019 **WP(C).No.4925 of 2015** **14** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**A TRUE COPY OF THE JUDGMENT DATED**| |---|---| ||**24.10.2014 IN WPC NO.1175/12**| |**EXHIBIT P2**|**A TRUE COPY OF THE JUDGMENT DATED**| ||**23.11.2013 IN WPC NO.28111/13**| |**EXHIBIT P3**|**A TRUE COPY OF THE APPOINTMENT ORDER**| ||**DATED 25.11.13 OF THE FIRST PETITIONER**| |**EXHIBIT P4**|**A TRUE COPY OF THE APPOINTMENT ORDER**| ||**DATED 25.11.13 OF THE SECOND**| ||**PETITIONER**| |**EXHIBIT P5**|**A TRUE COPY OF THE APPOINTMENT ORDER**| ||**DATED 25.11.13 OF THE THIRD PETITIONER**| |**EXHIBIT P6**|**A TRUE COPY OF THE APPOINTMENT ORDER**| ||**DATED 25.11.2013 OF THE FOURTH**| ||**PETITIONER**| |**EXHIBIT P7**|**A TRUE COPY OF THE LIST OF SALESAM**| ||**APPOINTED BY THE BANK**| |**EXHIBIT P8**|**A TRUE COPY OF THE ORDER DATED**| ||**22.3.2008 OF THE JOINT REGISTRAR**| |**EXHIBIT P9**|**A TRUE COPY OF THE MINUTES OF THE**| ||**MEETING OF APPOINTMENT OF THE**| ||**PETITIONER**| |**EXHIBIT P10**|**A TRUE COPY OF THE ORDER DATED**| ||**6.2.2015 OF THE JOINT REGISTRAR**|