High Court of KeralaSingle Judge2021-03-17Writ petition allowed; awards quashed; reinstat...

The Co-operative Sugars (through its Liquidator) v. K. M. Sudheer Kumar

Case / Petition Number:WP(C).No.11519 OF 2015(L)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
Judgment Date: 2021-03-17
Court Decision / Holding: The Arbitration Court’s award and the Kerala Co-operative Tribunal’s order are quashed for want of jurisdiction and for misapplying civil court-like remedies to a Co-operative Arbitration framework. The writ petition is allowed, and the tribunal’s and arbitrator’s reliefs ordering reinstatement (and related back-wages framework as extended by the appellate decision) are set aside. The court clarifies that personal service disputes in the co-operative field do not automatically warrant reinstatement through the Co-operative Arbitration apparatus; a Civil Court/Industrial Disputes Act route or damages under Section 41(e) may be the appropriate remedy.
Final Disposition: Writ petition allowed; awards quashed; reinstatement not granted through Co-operative Arbitration framework.

Parties to the Case

Appellants / Petitioners

The Co-operative Sugars (represented by its Liquidator)

Respondents

K. M. Sudheer Kumar

Legal Representation & Advocates

Counsels for Petitioners

• Sri K. Anand (Sr.)
• Sri Joseph Sebastian (Parackal)
• Sri Latha Anand
• Sri M. N. Radhakrishna Menon

Case Synopsis & Summary

The Kerala High Court (Ernakulam) heard WP(C) 11519/2015(L) on 17 March 2021, challenging an award of the Co-operative Arbitration Court and the Kerala Co-operative Tribunal regarding reinstatement and back wages of K. M. Sudheer Kumar, a draftsman employed by the petitioner society. The employee had taken extended leave and later remained absent from duty, allegedly unauthorised, from 1.4.2008 onward, and was removed from the rolls in 2011. The employee invoked arbitration under the Kerala Co-operative Societies Act, seeking reinstatement and salary arrears, while the management argued the remedy lay under the Industrial Disputes Act (ID Act) and/or 41(e) of the Specific Relief Act, and that the Arbitration Court lacks civil court-like jurisdiction to order reinstatement. The Arbitrator partly allowed reinstatement but left back wages to be assessed by others; the Appellate Tribunal reversed aspects, affecting back wages. The petitioner contended that the arbitration proceedings do not resemble civil court procedures, and that the remedy for a personal service dispute should be damages only, under 41(e). The High Court held that the Arbitration Court and Tribunal acted without jurisdiction to grant reinstatement and that the proceedings cannot be equated with civil court remedies; accordingly, the awards were quashed and the writ petition allowed. The judgment references Ambika v. The Kottappady Service Co-operative Bank Ltd. as authority but treats it as a passing consideration rather than a binding precedent in this context.

Provisions of Law Cited

Section 41(e) of the Specific Relief ActSection 69 of the Kerala Co-operative Societies ActSection 11A of the Industrial Disputes Act, 1947Section 10 of the Industrial Disputes Act, 1947

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner’s counsel contends that the dispute, being one arising out of personal service, ought to be resolved under the Industrial Disputes Act and not by a Co-operative Arbitration Court, which does not possess civil court-like powers to order reinstatement. It is argued that the remedy under Section 11A/Section 10 of the Industrial Disputes Act is proper, and that reinstatement could be ordered only in a civilly cognizable framework; at best damages are recoverable under Section 41(e) of the Specific Relief Act. The CPC-like procedures cannot be imported into arbitration under the Co-operative Societies Act. The matter should be treated as a service dispute with limited relief, and the reliance on Ambika v. The Kottappady Service Co-operative Bank Ltd. (2018 (3) KLT 779) is noted but not treated as controlling.The petitioner also argues that the Registrar’s jurisdiction under the Co-operative Societies Act aligns with civil court, but the actual power to grant reinstatement is not present; therefore the awards are without jurisdiction and liable to be quashed.

Contentions of Respondents

Respondent’s counsel argues for reinstatement and back wages, or at least for a remedy within the arbitration framework for personal service disputes. The respondent asserts that the arbitration process recognized an entitlement to reinstatement and that the appellate tribunal’s partial concession on back wages vindicates the broader relief sought. The absence from duty since 1.4.2008, the justification of unauthorised absence, and the management’s reliance on the revival of the unit as a basis to terminate are presented as valid grounds for reinstatement and back wages under the Co-operative Act’s arbitration mechanism. The respondent contends that the remedy under the Industrial Disputes Act should be pursued via reference to Labour Courts, and that the arbitration award’s approach should stand unless shown to be void for lack of jurisdiction or misapplication of law.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ambika v. The Kottappady Service Co-operative Bank Ltd.	2018 (3) KLT 779	Mentioned Only	Cited in argument as authority; the judgment does not adopt or distinguish its ratio explicitly.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942** ## **WP(C).No.11519 OF 2015(L)** **AGAINST THE ORDER/JUDGMENT IN OTHERS 52/2014 OF KERALA COOP.TRIBUNAL, THIRUVANANTHAPURAM.** ## **PETITIONER/S:** **THE CO-OPERATIVE SUGARS AGED 55 YEARS CHITTOOR NO.4322, MENONPARA 678556, PALAKKAD, KERALA REPRESENTED BY ITS LIQUIDATOR** **BY ADVS. SRI.K.ANAND (SR.) SRI.JOSEPH SEBASTIAN (PARACKAL) SMT.LATHA ANAND SRI.M.N.RADHAKRISHNA MENON** ## **RESPONDENT/S:** **K.M. SUDHEER KUMAR** **S/O.LATE K.BHASKARA MENON, RESIDING AT SAYOOJYA, NEAR SABARI ASHRAMAM, AKATHETHARA POST, PALAKKAD TALUK, PALAKKAD DISTRICT 678008** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.11519 OF 2015(L)** **2** ## **JUDGMENT** ## **Dated this the 17th day of March 2021** The question involved in the present writ petition is whether the Tribunal constituted under the Kerala Co-operative Societies Act while examining orders passed by the management of the societies would have the trappings of the civil court in ordering reinstatement. In order to answer the question, the facts, in brief are : 2. Sri.K.M Sudheer Kumar was working as a Draftsman in the factory attached to the petitioner society from 15.11.1995 onwards. While so on 16.3.2002, he applied for leave on loss of pay for three years to go abroad for a job which was allowed as per order of the Managing Director dated 1.4.2002. Before the expiry of extra ordinary leave for three years from 1.4.2002 to 31.3.2005, the respondent submitted application for extra ordinary leave for further period of three(3) years from 1.4.2005, which was allowed. Another application for extension of extra ordinary leave without pay and allowances for a further period of five years from 1.4.2008 to 31.3.2013 was also submitted, however, the same was not considered due to the reason that the Government of Kerala decided to revive the unit and his services were essential for the above purpose. Different notices sent to the respondent were not replied. Later Petitioner issued notice on **WP(C).No.11519 OF 2015(L)** **3** 18.11.2011 calling upon the first respondent to explain the reasons for not removing his name from the rolls of the company for unauthorised absence, which was also not replied. Thereafter the respondent was removed from the rolls of the company vide Ext.P10. It is on that account the respondent invoked the jurisdiction of the arbitration court under the provisions of the Kerala Co-operative Societies Act on the premise that the petitioner did not pass any order rejecting the leave of the respondent or the notices alleged to have been sent in March, May and 2018 were never received. 3. The petitioner society opposed the aforementioned claim of the respondent and submitted that despite notice was served on respondent he failed tojoin duty and that was the reflection of his mind in not continuing with the employment, thus his absence w.e.f 1.4.2008 was unauthorised. The management complied with all requirements. The Arbitrator on perusal of the pleadings framed the following issues for consideration: I) Whether the plaintiff is entitled for reinstatement of the service of the 1[st] Defendant Society as claimed in the Plaint or not ii) Whether the Plaintiff is entitled for all the service benefits including arrears of salary, as claimed in the Plaint or not? Iii) What is the Reliefs and cost? 4. On consideration of the matter the claim of the respondent was **WP(C).No.11519 OF 2015(L)** **4** allowed in part by ordering reinstatement, but as regards the payment of back wages, two appeals were preferred before the Appellate Tribunal. Appeal preferred by the management was dismissed, but the appeal preferred by the employee was allowed in part, as the direction of the Arbitration Court leaving open for the defendant to assess the backwages of the respondent, was struck down. 5. Sri.Vishnu, learned Counsel appearing on behalf of the petitioner in support of the grounds taken in the present writ petition raised the following submissions. I) The claim petition as such on behalf of the respondent was not maintainable as the remedy for the determination of dispute was to invoke the provisions of the Industrial Disputes Act, seeking reference under Section 10. ii) Arbitration Court constituted under the Kerala Co-operative Societies Act do not have the trappings of the civil court for ordering reinstatement in view of the specific power under Section 41 (e)of the Specific Relief Act. iii) At the best the damages could have been awarded. 6. Strict Principles of Code of Civil Procedure in proceedings before the Arbitration Court constituted under the Kerala Co-operative Societies Act, would **WP(C).No.11519 OF 2015(L)** **5** not be applicable, and therefore, the documents brought on record could not have been rejected on point of mode of rule. 7. In support of the contentions, reliance has been laid to the Division Bench judgment of this Court in _**Ambika v. The Kottappady Service Co-operative Bank Ltd. [2018 (3) KLT 779].**_ It was next submitted that while admitting the writ petition, this Court had stayed the operation of award as well as the order of the Tribunal. As per the office report dated 4.6.2015, the respondent was served, but no representation nor any Vakalath on the part of any Advocate has been filed. 8. I have heard learned Counsel for the parties and appraised the paper books and judgment cited (supra). 9. On perusal of the point of determination, the Arbitration court framed issue No.1, which in my view could not have been done as none of the provisions of the Co-operative Societies Act empowers or stipulates similar power as provided under Section 11 A of the Industrial Disputes Act, 1947. 10. Section 41 (e) of the Specific Relief Act is the only remedy for an employee to claim damages as it cannot be permitted to implore as and when any dispute arises. There would not have been any force, had this Court been dealing with the award passed under the Industrial Disputes Act. The aforementioned view of mine is reaffirmed from the ratio decidendi culled out in judgment cited (supra) as the jurisdiction of the Registrar under Section 69 of the Kerala Co-operative **WP(C).No.11519 OF 2015(L)** **6** Societies Act is co-terminus with that of a civil court, but the general rule is that the civil court would not specifically enforce the contract of personal service and can at the best award damages as per the provisions of Section 41 (e) of the Specific Relief Act. All these points have not been taken into consideration by the appellate authority, though specifically raised in the grounds. An upshot of findings, the award of Arbitrator as well as the Tribunal are not sustainable being without jurisdiction and fallacious, accordingly the same are quashed. The writ petition stands allowed. ## **Sd/** **AMIT RAWAL** **JUDGE** **Jm/** **WP(C).No.11519 OF 2015(L)** **7** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 P1:TRUE COPY OF THE CERTIFIED STANDING ORDER DATED 28.02.1967** **EXHIBIT P2 P2:TRUE COPY OF THE ORDER DATED 01.04.2002 EXHIBIT P3 P3:TRUE COPY OF THE ORDER DATED 01.04.2005 EXHIBIT P4 P4:TRUE COPY OF APPLICATION 21.01.2008 SUBMITTED BY THE FIRST RESPONDENT** **EXHIBIT P5 P5:TRUE COPY OF THE LETTER OF THE PETITIONER DATED 24.03.2008 EXHIBIT P6 P6:TRUE COPY OF THE LETTER OF THE PETITIONER DATED 19.05.2008** **EXHIBIT P7 P7:TRUE COPY OF THE LETTER OF THE PETITIONER DATED 11.06.2008 EXHIBIT P8 P8:TRUE COPY OF THE NOTICE DATED 18.11.2011 ISSUED BY THE PETITIONER EXHIBIT P9 P9:TRUE COPY FO APPLICATION DATED 29.11.2011 SUBMITTED BY THE RESPONDENT EXHIBIT P10 P10:TRUE COPY OF APPLICATION DATED 29.11.2011 SUBMITTED BY THE RESPONDENT** **EXHIBIT P11 P11:TRUE COPY OF PLAINT NO.ARC 15/12 BEFORE THE CO OPERATIVE ARBITRATION CALICUT FILED BY THE RESPONDENT EXHIBIT P12 P12:TRUE COPY OF THE COUNTER STATEMENT DATED 14.308.2012 FILED BY THE PETITIONER EXHIBIT P13 P13:TRUE COPY OF AWARD DATED 06.02.2014 EXHIBIT P14 P14:TRUE COPY OF APPEAL NO.52/2014 FILED BY THE PETITIONER BEFORE THE KERALA CO OPERATIVE TRIBUNA, THIRUVANANTHAPURAM** **WP(C).No.11519 OF 2015(L)** **8** **EXHIBIT P15** **EXHIBIT P16** **P15:TRUE COPY OF APPEAL NO.65/2014 FILED BY THE RESPONDENT BEFORE THE KERALA CO OPERATIVE TRIBUNAL THIRUVANANTHAPURAM** **P16:TRUE COPY OF COMMON JUDGMENT IN APPEAL NOS.52/2014 AND 65/2014 OF THE KERALA CO OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM**