T. Krishnan v. Joint Registrar of Co-operative Societies (General), Kasaragod; Administrator, Pullur Service Co-operative Bank Ltd; Pullur Service Co-operative Bank Ltd represented by the Secretary-in-Charge; M. Chandran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **TUESDAY, THE 24TH DAY OF OCTOBER 2017/2ND KARTHIKA, 1939** ## **WP(C).No. 30148 of 2017 (P)** **----------------------------** **PETITIONER :** - **------------------** **T. KRISHNAN AGED 43 YEARS, S/O. T. APPA, THAZHATHEVEEDU, P.O. HARIPURAM, PULLUR, HOSDURG TALUK, KASARAGOD DISTRICT.** ## **BY ADVS.SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON** **RESPONDENTS :** - **----------------------** **1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KASARAGOD.** **2. THE ADMINISTRATOR, PULLUR SERVICE CO-OPERATIVE BANK LTD NO.2183, P.O. HARIPURAM,PULLUR, HOSDURG TALUK, KASARAGOD - 671 531.** **3. THE PULLUR SERVICE CO-OPERATIVE BANK LTD NO.2183 REPRESENTED BY THE SECRETARY-IN-CHARGE, P.O.HARIPURAM, PULLUR, HOSDURG TALUK, KASARAGOD 671 531** **4. M.CHANDRAN S/O. ALAMI, KANNAMKOTTU, P.O.HARIPURAM, PULLUR, HOSDURG TALUK, KASARAGOD 671 531** - **R1 BY GOVERNMENT PLEADER SRI.MABLE C.KURIAN R4 BY ADV. SRI.P.C.SASIDHARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/10/2017, THE COURT ON 24-10-2017 DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 30148 of 2017 (P)** **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** - **EXHIBIT P1: TRUE COPY OF THE CHARGE MEMO DT. 21/12/2016 ISSUED BY THE SUBCOMMITTEE TO THE 4TH RESPONDENT** - **EXHIBIT P2: TRUE COPY OF THE REPLY DATED 4/1/2017 OF THE 4TH RESPONDENT BEFORE THE DISCIPLINARY SUB COMMITTEE.** - **EXHIBIT P3: TRUE COPY OF THE LETTER DT. 24/5/2017 OF DISCIPLINARY SUB COMMITTEE** - **EXHIBIT P4: TRUE COPY OF THE ORDER DATED 31/5/2017 OF DISCIPLINARY SUB COMMITTEE** - **EXHIBIT P5: TRUE COPY OF THE NOTICE DT. 2/6/2017 ISSUED BY 1ST RESPONDENT** - **EXHIBIT P6: TRUE COPY OF THE ORDER DT. 14/6/2017 ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT P7: TRUE COPY OF THE COMPLAINT ACKNOWLEDGMENT ETC. RECEIVED FROM THE C.I. OF POLICE** - **EXHIBIT P8: TRUE COPY OF THE COMPLAINT DT. 28/6/2017 ALONG WITH ACKNOWLEDGEMENT RECEIVED FROM THE OFFICE OF THE SUPERINTENDENT OF POLICE** - **EXHIBIT P9: TRUE COPY OF THE F.I.R DT. 28/7/2017 REGISTERED BY AMBALATARA POLICE STATION** - **RESPONDENT(S)' EXHIBITS :** **---------------------------------------** **EXT.R4(a): COPY OF THE INTERIM ORDER DT 15/9/2017 IN WPC 20239/2017.** **//TRUE COPY//** **P.A. TO JUDGE** **bp** **C.R SHAJI P. CHALY, J.** ----------------------------------------------- **W.P.(C) No. 30148 of 2017 ----------------------------------------------Dated this the 24[th] day of October, 2017** ## **J U D G M E N T** This writ petition is filed by the petitioner, who is a member of the 3[rd] respondent society seeking to quash Ext.P6 order passed by the 1[st] respondent dated 14.6.2017 rescinding Ext.P4 order passed by the Disciplinary Sub committee constituted by the 3[rd] respondent bank and dismissing the 4[th] respondent from the services of the bank and for other related reliefs. Material facts for the disposal of the writ petition are as follows; 2. Petitioner is an A class member of the 3[rd] respondent bank. Fourth respondent was dismissed from service by the sub committee after conducting a detailed enquiry, as per Ext.P4 order. The 4[th] respondent instead of filing an appeal against Ext.P4 order as is provided under rule 198(4) of the Kerala Co-operative Societies Rules, 1969, hereinafter called “the Rules”, filed a petition before the 1[st] respondent under W.P.(C) No. 30148 of 2017 2 rule 176 for rescinding Ext.P4 order. According to the petitioner, as per the settled position of law, 1[st] respondent has no power to entertain any petition seeking to invoke rule 176 to rescind the resolution, especially when power is conferred under section 69 (2) (d) of the Kerala Co-operative Societies operative Societies Act enabling the 4[th] respondent to prefer a suit, 1[st] respondent entertained the said petition and has passed Ext.P6 order rescinding Ext.P4 decision of the disciplinary sub committee dismissing the 4[th] respondent from the service of the 3[rd] respondent bank. It is the contention of the petitioner that, petitioner being a member of the 3[rd] respondent bank is interested in its activities and therefore, he is entitled as of right to challenge Ext.P6 order and therefore seeks to quash Ext.P6 order passed by the 1[st] respondent. 3. Fourth respondent has filed a detailed counter affidavit refuting the allegations and claims and demands raised by the petitioner. The paramount contention advanced by the 4[th] respondent is that, petitioner has no locus standi to challenge Ext.P6 order. In fact the said order was challenged by the Vice W.P.(C) No. 30148 of 2017 3 President of the Managing Committee of the society in W.P.(C) No.20239/2017 and this court at the admission stage issued an order of interim stay on all further proceedings in the matter. In the said writ petition 4[th] respondent has filed a detailed counter affidavit stating that, the society need not have any grievance regarding the orders issued by the Joint Registrar of Cooperative Societies. The society at no point of time has raised any objection before the Joint Registrar regarding the maintainability of the petition filed by the 4[th] respondent. The 4[th] respondent was constrained to move before the 1[st] respondent since there is total illegality in the matter of initiation of the disciplinary proceedings so also passing of the final order. It is also contended that, the disciplinary committee has no power, authority or jurisdiction to issue memo of charges and it is for the appointing authority to issue the memo of charges and seek explanation from the employee and if the explanation is found not satisfactory, then only the disciplinary committee can be constituted to conduct enquiry. However, contentions are also raised with respect to the power conferred on the sub committee W.P.(C) No. 30148 of 2017 4 or the executive committee of the society under rule 198. Therefore, according to the 4[th] respondent, 4[th] respondent was justified in approaching the 1[st] respondent invoking the power conferred under rules 176 of Rules, 1969. That apart it is submitted that, the writ petitioner is none else but the brother of Sri.Narayanan, who is the husband of Smt.Sreekala, who is the alleged Chairperson of the disciplinary sub committee. It is also contended that, taking note of the contentions raised in W.P.(C) No.20239/2017, the interim order granted was vacated as per Ext.R4(a) order. Therefore, according to the 4[th] respondent, there is no bonafide in the reliefs sought for by the petitioner and seeks dismissal of the same. 4. Heard learned counsel for the petitioner, learned Senior Government Pleader, learned counsel appearing for the 4[th] respondent and perused the pleadings and the documents on record. 5. The sole question that emerges for consideration in this writ petition is whether the 1[st] respondent is vested with powers under rule 176 of the Rules, 1969 in order to rescind Ext.P4 W.P.(C) No. 30148 of 2017 5 decision of the disciplinary sub committee imposing punishment on the 4[th] respondent by dismissing from the service after conducting an enquiry as is contemplated under rule 198 of Rules, 1969. Rule 176 of Rules 1969 read thus: 176. Registrar's power to rescind resolution:Notwithstanding anything contained in the byelaws of a registered society, it shall be competent for the Registrar to rescind any resolution of any meeting of any society or the committee of any society, if it appears to him that such resolution is ultravires of the objects of the society, or is against the provisions of the Act, Rules,Bye-laws or of any direction or instructions issued by the Department, or calculated to disturb the peaceful and orderly working of the society or is contrary to the better interest of the society.” 6. On a reading of rule 176, it is categoric and clear that, the power vested with the 1[st] respondent is to rescind any resolution of any meeting of any society or the committee of any society if it appears that, such resolution is ultravires of the objects of the society, or is against the provisions of the Act, Rules, Bye-laws or of any direction or instructions issued by the W.P.(C) No. 30148 of 2017 6 Department, or calculated to disturb the peaceful and orderly working of the society or is contrary to the better interest of the society. Therefore the significant component of rule 176 to exercise power by the 1[st] respondent is a resolution adopted by a society or the committee of any society. Here is a case where disciplinary action was initiated against the 4[th] respondent. A disciplinary committee was constituted, the committee conducted an enquiry and report was drawn, based on which a punishment is imposed. Ext.P4 order is passed by the disciplinary sub committee on the basis of the enquiry conducted. The said order can never be treated as resolution of any meeting of any society or committee of any society. Therefore, in my considered opinion, the Registrar did not have any power to entertain a petition from the 4[th] respondent invoking the power conferred under rule 176. This is exactly the contentions advanced by the learned counsel for the petitioner with respect to rule 176 and he has invited my attention to the judgments of this court in **Thrissur Taluk Co-operative College Educational Society Ltd. v. Joint Registrar** [2012(1) W.P.(C) No. 30148 of 2017 7 KLT 503] and **Kanjoor Service Co-operative Bank Ltd. v. Joint Registrar of Co-operative Societies (General)** [2016(3) KLT 73] to canvass the said proposition. In **Thrissur Taluk Cooperative College Educational Society Limited** supra, it is held in paragraph 9 and 12 as follows: 9. The next question is as to whether the Joint Registrar has jurisdiction to entertain Ext.P7 series petitions seeking to invoke R.176 of the Rules. The reliefs sought in Ext.P7 series petitions fall within the ambit of any dispute arising in connection with employment under S.69(2)(d) of the Act. The last limb of S.69(1) further mandates that 'no other court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute'. Thus there is a statutory exclusion for the Joint Registrar to entertain Ext.P7 series petitions seeking to invoke R.176 of the Rules. 12. I have no hesitation to hold that Exts.P4 and P6 notices issued on Ext.P7 series petitions filed seeking to invoke R.176 of the Rules are non est in law. There is a statutory exclusion for the Joint Registrar to deal with Ext.P7 series petitions relating to the employment of respondents 2 to 4. I therefore quash Exts.P4 W.P.(C) No. 30148 of 2017 8 and P6 notices and allow the Writ Petition however without costs. This is of course without prejudice to the right of respondents 2 to 4 to invoke other remedy known to law. 7. In **Kanjoor Service Co-operative Bank Ltd.** supra again a learned Single Judge of this court interpreting rule 176 held that, the Joint Registrar cannot in exercise of his powers conferred under the Rules interfere with or deal with a dispute overriding the exclusion of his authority by virtue of the provisions contained in the Act, by adopting summary procedure under Rule 176, by rescinding resolution of the petitioner Co-operative societies. Paragraph 7 of the said judgment is relevant in the said context, which read thus: “7. Therefore the jurisdiction to decide the disputes is not restricted to those disputes provided in clauses (a) to (d) alone of sub-section (2) of S.69. An inclusive meaning given to the term dispute does not in any manner take away the jurisdiction to decide the disputes covered by sub-section (1) of S.69 cannot be interpreted to mean an employee envisaged under S.80 of the Act and included in the Appendix. As long as the W.P.(C) No. 30148 of 2017 9 petitioner employer and the 2[nd] respondent do not dispute that the 2[nd] respondent was employed under them as Collection agent, the complaint of the 2[nd] respondent against his removal or disengagement can only be one coming under S.69 (1)(c) of the Act, which is necessarily to be decided by the Arbitration Court. The collection agent was employed by the 1[st] respondent. He was removed from the society. He complains that an inquiry was not conducted. His engagement and disengagement are not disputed. Therefore, by virtue of S.69, which starts with the non-obstante clause providing that the disputes as mentioned therein has to be referred to Arbitration Court/Registrar in respect of nonmonetary/monetary disputes and hence barring the authority of any other forum to deal with those disputes, the removal of the 2[nd] respondent is a matter which requires to be dealt with by the Arbitration Court and the Joint Registrar has no authority to deal with the same in any manner because of the specific ouster contained in S.69(1) of the Act. At any rate, the Joint Registrar cannot in exercise of his powers conferred under the Rules interfere with or deal with a dispute overriding the exclusion of his authority by virtue of the provisions W.P.(C) No. 30148 of 2017 10 contained in the Act, by adopting summary procedure under R.176, by rescinding resolution of the petitioner Co-operative Societies.” 8. Moreover, the resolution is defined the Black's Law Dictionary, 9[th] Edition as “a formal action by a co-operative board of directors or other corporate body authorizing a particular act , transaction, or appointment.” 9. Taking into account the totality of the circumstances, I am of the considered opinion that, the power exercised by the 1[st] respondent under rule 176 to rescind Ext.P4 order passed by the disciplinary sub committee cannot be sustained under law. In my considered opinion, there is every right vested with the 4[th] respondent to invoke section 69(2)(d), if the 4[th] respondent is aggrieved by Ext.P4 order, which read thus: “Any dispute arising in connection with employment of officers and servants of the different classes of societies specified in subsection (1) of Sec.80, including their promotion and inter se seniority.” 10. So also section 69 of the Act, 1969 starts with a non obstante clause to the effect that, notwithstanding anything W.P.(C) No. 30148 of 2017 11 contained in any law for the time being in force if a dispute arises:- Therefore, it is clear that, when a dispute arises by and between the society and any of its employees in connection with employment, then necessarily the 4[th] respondent is to invoke the right conferred under sub-section 2(d) thereunder. 11. Yet another contention advanced by learned counsel for the 4[th] respondent is that, petitioner, merely a member of the society is not vested with any power or locus standi to challenge Ext.P6 order passed by the disciplinary committee. In that regard, learned counsel for petitioner has invited my attention to the judgment of the learned Single Judge in **Jomon Augustine v. State of Kerala** (in W.P.(C) No.23239/2010 dated 21.3.2016) wherein self same question was considered. Paragraphs 29 and 30 of the said judgment is relevant, which read thus: 29. Viewed from the above perspective, there is a semblance of justification in the respondent's contention that the rights of petitioners 1 and 2 have not been affected. It cannot, however, be said so as regards their interest. In elaboration, I may hold that petitioners 1 and 2, being the members of the respondent Society—the W.P.(C) No. 30148 of 2017 12 employer, have sufficient interest in its affairs. For the Society, notwithstanding its distinct legal character, represents the interests of all its members collectively. Extending the same logic a little further, I reckon it is easy to hold that petitioners 1 and 2 as members are, in a sense, co-employers. 30. Summing up, I am of the view that petitioners 1 and 2 have their interest affected, if not their rights, because of the method and manner adopted by the Society in effecting the appointments to the posts in the Society. The Society adhering to a strict procedure, and recruiting the best of the personnel is in its interest, that is, in the interest of its constituents, the members, who include petitioners 1 and 2, too.” 12. I am in respectful agreement with the proposition of law so laid down by this court in the said judgment in order to conclude that the petitioner has a duty to protect the interest of the society. I have also gone through Ext.P1 charge memo and finds that, allegations are made against the 4[th] respondent with respect to financial indiscipline on the part of the 4[th] respondent among other charges. Therefore, definitely petitioner being an A W.P.(C) No. 30148 of 2017 13 class member of the society has interest in the affairs of the society. In that view of the matter, I am of the considered opinion that, the challenge made by the 4[th] respondent in respect of the locus standi of the petitioner cannot be sustained under law. On a reading of Ext.P6 order also, it is categoric and evident that, the findings of the 1[st] respondent is that, disciplinary committee was not constituted properly, there was no appointment of the chairman to the disciplinary committee and the disciplinary committee has not taken into account the objection raised by the 4[th] respondent etc. etc. It is also found in Ext.P6 that, imposition of punishment of dismissal on the 4[th] respondent is disproportionate to the charges alleged and 1[st] respondent has even went to the extent of exercising the power conferred under rule 198 Which thus also means, illegality is attributed in Ext.P6 order, against Ext.P4 decision of the disciplinary committee, which is only susceptible to challenge under the provisions of Section 69 of Act, 1969. In my considered opinion, 1[st] respondent has no manner of power to invoke rule 198 while exercising powers under rule 176 of Rules, W.P.(C) No. 30148 of 2017 14 1969 in the fact situation on hand. 13. As I have pointed out earlier, if the 4[th] respondent has any grievance against Ext.P4 order of the sub committee, the 4[th] respondent is conferred with a remedy to file appeal against the order in accordance with sub-rule 4 of rule 198 before the Board of Management and also to institute any proceedings in accordance with section 69(2)(d) of Act, 1969. Apart from all these, when a statute prescribes a particular modality and procedure, the authority constituted thereunder shall confine himself to the power conferred thereunder. Learned counsel for petitioner has also invited my attention to the judgment of a Division Bench of this court is **State of Kerala and others v. Shree Navangar Sadavrat Trust** [ILR 2017(3) Kerala 838], to counter the contention that, there is an appeal remedy against the order impugned. Paragraph 14 is relevant which read thus: “We would first start with the contention as raised by the State. The first contention we would deal with is the question of alternative remedy provided by Section 11 of the Act. No doubt, it is a remedy provided by the Statute. But as is well-settled that where the order has W.P.(C) No. 30148 of 2017 15 been passed b y an authority wholly without jurisdiction, the question of alternative remedy does not arise. It is submitted that there were no facts to justify the assumption of jurisdiction. To the contrary, the enquiry report of the Tahsildar, which formed the basis of the order of the District Collector to assume jurisdiction and initiate proceedings, would itself show that the property belonged to the trust and all taxes were being paid by Shree Navanagar Sadavrat Trust and was being maintained by the Trust. If that be so, then where is the question of property belonging to a person who died without heirs. But the District Collector having no other materials before him, accepted the report of the Tahsildar and still choose to assume jurisdiction which he lacks in the facts aforesaid. If this be correct, then the District Collector clearly acted without jurisdiction and that being so, the alternative remedy would be no bar in entertaining the original petition and the learned Single Judge did no wrong in entertaining the original petition.” 14. Accordingly, I am of the considered opinion that, action of the 1[st] respondent is lacking jurisdiction, and therefore, W.P.(C) No. 30148 of 2017 16 illegal and arbitrary. Viewed in that regard, availability of alternative remedy will not stand in the way of the petitioner invoking the discretionary remedy conferred on this court under Article 226 of the Constitution of India. 15. Assimilating the fact situations and reckoning the law, in my view, 1[st] respondent has usurped the power conferred under rule 176 of the Rules, 1969 and therefore, petitioner is entitled to succeed in the writ petition, consequently, I quash Ext.P6 order passed by the 1[st] respondent, however, leaving open the liberty of the 4[th] respondent to proceed in accordance with law. It is made clear that, the findings and observations contained above shall not be construed as an expression of opinion on the merits of the matter or rival interest of the parties. Writ petition is allowed accordingly. Sd/- **SHAJI P. CHALY JUDGE** smv 20.10.2017