## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE AMIT RAWAL**
**MONDAY, THE 6[TH] DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943**
## **WP(C) NO. 22517 OF 2018**
## **PETITIONER/S:**
1 THE ARPOOKARA SERVICE CO-OPERATIVE BANK LTD.NO.1931 REPRESENTED BY ITS SECRETARY, , VILLOONNI P.O, ARPOOKARA, KOTTAYAM. 2 THE PRESIDENT AROPPKARA SERVICE CO-OPERATIVE BANK LTD. NO. 1931, VILLOONNI P.O, ARPOOKARA, KOTTAYAM. BY ADVS. SRI.T.A.SHAJI (SR.) SRI.S.ABHILASH VISHNU SRI.ATHUL SHAJI
## **RESPONDENT/S:**
1 T.M.GEORGE THOTTUCHALIL HOUSE, VILLOONNI P.O, ARPOOKARA, NOW RESIDING AT THITTUCHALIL HOUSE, ANIKADU P.O, KAYOORI JUN., PALLIKATHODU, KOTTAYAM DISTRICT 686503 2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNEMNT CO-OPERATION DEPARTMENT, THIRUVANANTHAPURAM, PIN-695001. BY ADV SRI.P.C.SASIDHARAN
## **OTHER PRESENT:**
GP SRI JIMMY GEORGE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.08.2021, THE COURT ON 6.9.2021 DELIVERED THE FOLLOWING:
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## **JUDGMENT**
Petitioner, a Co-operative Bank along with its President laid challenge to the order Ext.P9 dated 21.2.2018 of the Co-operative Arbitration Court whereby direction has been issued to pay full salary and other monetory benefits for the period of 30.10.1998 to 8.4.2003. This case has little checkered history. First respondent while working as Secretary of the petitioner Bank , after the initiation of disciplinary proceedings, was dismissed from the service. An appeal was preferred before the Board of Directors, which was also dismissed.
2. By invoking the provisions of Rule 176 of the Cooperative Societies Rules, the first respondent filed a petition before the Joint Registrar. However, during the interregnum, Managing Committee of the Society was superseded and Administrator assumed charge on 19.3.2003.
3. Application filed under Rule 176 by the first respondent in the meantime was allowed and the matter was
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remitted back to the Board. Since the Board was not in power, Administrator was in charge vide order dated 8.4.2003 allowed the appeal and reinstated the first respondent. The aforementioned order was challenged in this Court vide O.P No.9723/2003 which was set aside vide judgment dated 27.8.2003. One third party, challenged the order of the Administrator which was rejected and appeal filed before the Government was also rejected on 3.9.2005. Subsequent to the reinstatement, disciplinary proceedings were initiated against the first respondent as per the proceedings dated 5.1.2004. The aforementioned proceedings were challenged by the first respondent but this Court declined to interfere with the same and the first respondent was relegated to invoke statutory remedies. The Joint Registrar also refused to interfere with the proceedings and the first respondent approached the Government in appeal. Government by order dated 27.9.2004 dismissed the appeal. Challenging the same the first respondent filed W.P. (C) No.30842/2004.
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4. The aforementioned writ petition was heard along with two other writ petitions. Vide judgment dated 30.5.2006 the decision of the Government was set aside. It was held that since the date of the retirement of the first respondent was 30.11.2004, the question of regularization of the period of suspension, entitlement to pay, pension would also arise after the decision of the appeal. The matter was taken in appeal by the first respondent and this Court allowed the Writ Appeal, granting some reliefs to the 1[st] respondent and order of the Board was set aside. As regards the second disciplinary proceedings, it was held that the Managing Board was competent to proceed against the appellant on any other misconduct. The question which arise in the present writ petition is ‘whether the first respondent was gainfully employed during the period aforementioned and was entitled to salary or not. Direction was issued to file a representation to the Board of Directors for consideration. On receipt of the representation before the Board of Directors vide order dated 15.5.2007 it was directed that the first respondent was entitled to back
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wages to the amount already received as subsistence allowance the period of suspension, and directed the regularization only for the purpose of pension. Aggrieved of the same, respondent preferred ARC No.101/2007 and the award dated 23.7.2010, Ext.P5 was rendered against the Management. Management preferred a revision as R.P No.86/2012. Vide order dated 26.9.2013, the revision petition on behalf of the petitioners was dismissed and award was confirmed, Ext.P6. Challenging Exts.P5 and P6, petitioners filed W.P. (C) No.4827 of 2014. This Court vide judgment dated 30.7.2015 held that neither the Arbitration Court nor Tribunal considered the matter regarding the entitlement of full back wages. Accordingly, awards rendered in ARC No.101/2007 and R.P No.86/2012 were set aside and the matter was remitted to the Co-operative Arbitration Court for consideration afresh after hearing the parties.
5. The aforementioned order was assailed in W.A No.2479 of 2015. The Division Bench of this Court did not interfere with the judgment of the Single Bench and appeal was dismissed. Arbitration Court vide award dated
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21.2.2018, Ext.P9 heard the matter afresh and ordered that the first respondent was entitled to get full salary and other monetary benefits for the period of 30.10.1998 to 8.4.2003.
6. Learned counsel appearing on behalf of the petitioners submitted that award Ext.P9 is illegal and arbitrary as the jurisdiction of the Co-operative Arbitration Court is excluded by Section 69 of the Kerala Co-operative Societies Act. The appointing authority declined full back wages or rather limited the entitlement of back wages on valid reasons and on sound legal principles. The public funds cannot be utilized for unjust enrichment of the erring officers. In support of the aforementioned arguments, the judgments reported in _**State Bank of India and Another v. Mohammed Abdul Rahim (2013 KHC 3818), A.P. SRTC and Another v. B. S. David Paul (2006 KHC 91), Banshi Dhar v. State of Rajasthan and Another (2007 KHC 3013)**_ have been relied.
7. Counsel for the respondent countered the argument by submitting that on a writ petition filed by the
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Bank, this Court directed to reconsider the issue and the Division Bench also affirmed the same. Hence the power of the Arbitration Court deciding the issue cannot be challenged by the writ petitioners. The Arbitration Court found that suspension was wholly unjustified and that even proceeding for the disciplinary action, no suspension was necessary. The challenge against the order of the Administrator, reinstating the first respondent in service has attained finality.
8. I have heard the learned counsel for the parties and appraised the paper book. The respondent/plaintiff filed 14 documents along with the affidavit whereas the petitioners/defendants did not file any documents. In pursuance of the direction of this Court for submission of the representation, the petitioner Bank had filed reply stating that Managing Committee had resolved that the first respondent was not entitled to any back wages to the extent the services and the relevant period was to be regularized only for the purpose of pension and therefore not entitled to get salary and allowances during the period of suspension or dismissal. As per the documents placed
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on record Exts.A11 and A12 on behalf of the respondent, reveal that Administrator had decided to remit the pension contribution, group insurance premium and welfare fund, considering the period of suspension and dismissal from the service. Salary of the respondent was fixed by the bank as per Ext.A10. The argument of the petitioners that the Tribunal had relied upon the judgment Ext.A14 in O.P No.28123 of 1999, which was purported to be similar to that of the respondent stage ie., a direction was issued to the Bank to pay full salary and the Tribunal without referring to its content, heavily relied upon the same would be of no consequence as petitioner Bank failed to place on record any material that the first respondent was gainfully employed during the period of suspension and dismissal. There is no dispute to the judgments cited at bar on behalf of the petitioners but are based upon the facts. Even the ratio would not be applicable in the instant case in view of the fact that the order of the single judge upheld by the Division Bench remitting the matter to the Arbitration Court for entitlement of back wages, the objection of the petitioners for maintainability of the
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petition for back wages stood effaced.
In fact, had the material regarding gainfully employment of the first respondent placed on record, this Court would have definitely interfered while exercising the power of judicial review under Article 226 of the Constitution of India. But in the absence of the same, I do not find any illegality or perversity in the order under challenge dated 21.2.2018. Writ petition is accordingly dismissed.
Sd/sab **AMIT RAWAL JUDGE**
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## **APPENDIX OF WP(C) 22517/2018**
PETITIONER EXHIBITS
|EXHIBIT P1|TRUE COPY OF THE JUDGMENT DATED|
|---|---|
||30/05/2006 IN WP (C) NO. 30842/2004.|
|EXHIBIT P2|TRUE COPY OF THE JUDGMENT DATED|
||11/12/2006 W.A NO.1121/2006 DATED|
||11/12/2006|
|EXHIBIT P3|TRUE COPY OF THE ORDER DATED 15/05/2007|
||PASSED BY THE BOARD OF DIRECTORS|
||PETITIONERS IN ARC.101/2007|
|EXHIBIT P4|TRUE COPY OF THE WRITTEN STATEMENT|
||FILED BY THE PETITONERS IN ARC.101/2007|
|EXHIBIT P5|TRUE COPY OF THE AWARD DATED 23/7/2010|
||OF THE CO-OPERATIVE ARBITRATION COURT|
|EXHIBIT P6|TRUE COPY OF THE ORDER DATED 26/09/2013|
||BY THE CO-OPERATIVE ARBITRATION|
||TRIBUNAL IN R.P. NO. 86/2012|
|EXHIBIT P7|TRUE COPY OF THE JUDGMENT DATED|
||30/07/2015 IN WP(C0 4827 OF 2014 OF|
||THIS HON'BLE COURT.|
|EXHIBIT P8|TRUE COPY OF TH JUDGMENT DATED|
||11/03/2016 OF THIS HON'BLE COURT IN W.A|
||NO. 2479 OF 2015|
|EXHIBIT P9|TRUE COY OF THE AWARD DATED 21/022018|
||OF THE CO-OPERATIVE ARBITRATION COURT|
||IN ARC NO. 101OF 2007.|
|RESPONDENT EXHIBITS||
|EXHIBIT R1(a)|TRUE COPY OF THE A.R.C.NO.101/2007.|
