## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY**
## **TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938**
## **WP(C).No. 19694 of 2010 (J)**
**----------------------------**
**PETITIONER(S): --------------------------**
**T. SABULAL, "ROHINI", PUNTHALATHAZHAM, KILIKOLLUR P.O., KOLLAM.**
**BY ADVS.SRI.V.G.ARUN, SRI.T.R.HARIKUMAR.**
## **RESPONDENT(S):**
**----------------------------**
**1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOLLAM-691 001.**
**2. KANNANALLOOR JANASEVINI RURAL CO-OPERATIVE SOCIETY LTD. NO. Q-1388, REPRESENTED BY ITS PRESIDENT, KANNANALLOOR P.O., KOLLAM-691 576.**
**R1 BY GOVT. PLEADER SRI.G. GOPAKUMAR.**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
rs.
## **WP(C).No. 19694 of 2010 (J)**
## **APPENDIX**
## **PETITIONER'S EXHIBITS:-**
**EXT.P1 COPY OF THE PROCEEDING OF THE PRESIDENT APPOINTING THE PETITIONER AS SECRETARY TO THE 2ND RESPONDENT SOCIETY DATED 13/02/2006. EXT.P2 COPY OF THE PROCEEDING DATED 28/08/2006, WHICH WAS COMMUNICATED TO THE 1ST RESPONDENT FOR APPROVAL OF SCALE OF PAY DATED 18/09/2006. EXT.P3 COPY OF THE ORDER DATED 09/10/2009. EXT.P4 COPY OF THE REPRESENTATION DATED 04/02/2010.**
## **RESPONDENT'S EXHIBITS:NIL.**
## **//TRUE COPY//**
## **P.S. TO JUDGE**
rs.
## **SHAJI P. CHALY, J.**
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W.P.(C)No.19694 of 2010
## **----------------------------------------**
Dated this the 9[th] day of August, 2016
## **JUDGMENT**
This writ petition is filed by the petitioner, Secretary of the second respondent Bank seeking to quash Ext.P3 order passed by the first respondent directing the Bank to initiate action to recover the excess salary paid to the petitioner and for other related reliefs.
2. Material facts for the disposal of the writ petition are as follows:-
As per Ext.P1, remuneration to the petitioner is fixed at Rs.1,000/- as consolidated pay. The total working capital of the second respondent Society is Rs.43,37,429/- as per the audit report of 2008-2009. Since the payment of Rs.1000/was inadequate, the Society took a resolution as per Ext.P2 to fix the salary of the Secretary, in terms of the salary of societies of unclassified credit society, Rs.4160-8220. Ext.P2 proceedings was communicated to the first respondent for approval of the scale of pay. However, the
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first respondent has not taken a decision so far. Thereafter, Board took a decision dated 29.9.2006 to enroll the petitioner in the Provident Fund Scheme and started contribution, to the same. Subsequently, as per decision dated 16.12.2008, petitioner became a member of Welfare Fund also. As per decision No. 133 and 134/08-09 dated 16.12.2008 the Society forwarded an application to the Pension Board . However, that application was returned with an observation to classify the Society as miscellaneous instead of unclassified Society. Petitioner's probation was declared as per resolution dated 19.7.2007 with effect from 26.6.2007.
3. It is further submitted that, without passing an order in Ext.P2 first respondent issued Ext.P3 order dated 9.10.2009 directing the Society to recover the salary, which was paid to the petitioner on the basis of Ext.P2 resolution with effect from 1.9.2006. On receipt of Ext.P3, Ext.P4 representation was submitted by the petitioner to the first respondent. However, the same was not considered and it is
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in this background challenging Ext.P3, petitioner has filed this writ petition.
4. First respondent has filed a counter affidavit contending as follows. While on registration, the Society was classified under miscellaneous type under Rule 15 Clause II(3) of Kerala Co-operative Societies Rules. On the request of the Society the post of a Secretary was sanctioned with consolidated pay of Rs.1000/- as per order dated 24.6.2005, petitioner has taken charge on 06.2.2006 on the consolidated pay of Rs.1000/-. However, the second respondent Society took a decision to fix the salary of the Secretary of unclassified credit Society . It is true that, the Board of Directors took such a resolution, but till now the said resolution was not submitted to the office of the first respondent for approval. According to the first respondent, the attempt of the petitioner is to mislead this Court stating that Ext.P2 resolution was placed before the first respondent for consideration.
5. It is also contended that, before fixing the scale
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of pay of the staff in the Society, Society has to give application for classification of the Society per Appendix III of the Kerala Co-operative Societies Act, 1969. As per Appendix III, for the classification of the Society prior approval, from the Joint Registrar (General) is required, and also for the scale of pay prescribed for each post under classification of the Society. But, however, the second respondent Society has not complied with any of the formalities contemplated under law. It is also stated that, the Board of Directors of the second respondent Society as per resolution dated 26.11.2008 has resolved to apply for additional post of one Clerk and Attender in the Society. While forwarding the above proposal for additional posts, the Assistant Registrar (General) reported that the Society has also sanctioned a scale of pay of Rs.4160-8220 with effect from 1.9.2006 to the Secretary without prior approval from the department. It is also stated that, it is not mandatory to issue notice to the Society when giving instruction to recover the excess pay drawn by staff of any
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society. Thereupon it is contended that, petitioner is not entitled to get the salary fixed at the scale of Rs.4160-8220.
6. Heard learned counsel for the petitioner, learned Government Pleader and perused the pleadings and documents on record.
7. Learned counsel for the petitioner reiterated the contentions raised in the writ petition. The prime contention put forth is that, Ext.P3 order is issued by the first respondent without any notice either to the second respondent society or to the petitioner, who is an affected person, consequent to the directions contained thereunder to recover the excess salary paid. It is also contended that, as held by the Apex Court in various judgments that the excess salary paid to an employee cannot be recovered unless and until it is found that the employee is a contributory to payment of such excess salary. It is also contended by the learned counsel that, in spite of submission of Ext.P4 representation, the first respondent has not cared to consider the grievance voiced by the
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petitioner and in that constrained circumstances petitioner had no other alternative than to seek refuge in this Court.
8. However, learned Government Pleader submitted that, the post of Secretary was sanctioned as per order of the first respondent on a consolidated pay and thereafter, there was no sanction provided by the first respondent to the second respondent Society to fix a scale of pay to the post of secretary. Therefore, the second respondent was not at liberty to fix a scale of pay and that too in violation of Appendix III of the Co-operative Societies Rules.
9. Taking into account the rival submissions made across the Bar, the question to be considered is whether, any manner of interference is warranted to Ext.P3 order passed by the first respondent. On a reading of Ext.P3 it is categoric and clear that, prior to the issuance of Ext.P3 there was no manner of communication provided either to the society or the petitioner, enabling either the second respondent or the petitioner to make appropriate representation before the first respondent so as to justify
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the action. Even though, a counter affidavit is filed by the first respondent, there is no allegations raised against the petitioner with respect to the excess salary paid to the petitioner. Going by the law laid down by the Apex Court in its various judgments and including the judgment in **Syed Abdul Qadar v. State of Bihar** [2009(3) SCC 475], wherein the Apex Court held that excess salary paid to the employee cannot be recovered unless and until the employee is a contributory factor for payment of the same. On a reading of Ext.P3 or from the counter affidavit it is not discernible whether petitioner has any contribution in the matter of fixation of scale of pay by the second respondent Society. Therefore, in my considered opinion Ext.P3 is passed by the first respondent to the detriment of the petitioner as well as the Society. Even though, the first respondent has stated in the counter affidavit that a notice is not mandatorily contemplated under law before passing any order by the first respondent, principles of natural justice demands that before any order is passed causing
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perejudice to an employee an opportunity shall be provided. Admittedly, Ext.P3 is causing detriment to the petitioner specifically and the second respondent Society at large. Therefore, I set aside Ext.P3 order and direct the first respondent to consider Ext.P4 representation submitted by the petitioner taking into account the judgments rendered by the Apex Court as well as this Court in that regard and pass appropriate orders in the same, within two months from the date of receipt of a copy of this judgment. Needless to say, all proceedings pursuant to Ext.P3 shall be kept in abeyance till such an order is passed by the first respondent.
Writ petition is disposed of accordingly.
Sd/-
## **SHAJI P. CHALY, JUDGE**
dlk/10/8/
