The Nediyirippu Service Co-operative Bank Kondotty v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 13[TH] DAY OF OCTOBER 2022 / 21ST ASWINA, 1944** ## **WP(C) NO. 27604 OF 2022** ## **PETITIONER:** THE NEDIYIRIPPU SERVICE CO-OPERATIVE BANK KONDOTTY P.O, MALAPPURAM- 673638, REPRENTED BY ITS SECRETARY IN CHARGE, KUNHIMOHAMMED. P, AGED 56, S/O. MOHAMMED KUTTY, RESIDING AT PULLIKALAKATH HOUSE, KURUPATH, KONDOTY P.O, MALAPPURAM - PIN - 673638 BY ADV P.C.MUHAMMED NOUSHIQ 1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF CO-OPERATION, SECRETARIATE, THIRUVANANTHAPURAM, PIN - 695001 2 THE DEPUTY SECRETARY, DEPARTMENT OF CO-OPERATION (C), SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) MALAPPURAM, CIVIL STATION, MALAPPURAM – 676505. 4 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KONDOTTY, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, KONDOTTY, KONDOTTY POST, MALAPPURAM, PIN - 673638 5 UNEEN C.T THAYYIL HOUSE, MUSLIYARANGADI, NEDIYIRIPPU POST, KONDOTY, MALAPPURAM, PIN - 673638 BY ADV P.P.JACOB SMT PARVATHY K-GP ## **RESPONDENTS:** THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 27604 OF 2022** **2** ## **JUDGMENT** A Co-operative Society, operating under the provisions of the Kerala Co-operative Societies Act (hereinafter called “KCS” Act for short), has approached this Court impugning Ext.P7 order issued by the 3[rd] respondent - Joint Registrar of Co-operative Societies, to the extent to which it has directed payment of gratuity to the 5[th] respondent, who was their earlier employee. 2. According to Sri.P.C.Muhammed Noushiq - learned counsel for the petitioner, the Joint Registrar obtained no jurisdiction to have directed his client to pay any amount to the 5[th] respondent and therefore, that said order is without legs to stand on legally. He thus prayed that Ext.P7 be set aside and the 5[th] respondent be directed to invoke his **WP(C) NO. 27604 OF 2022** **3** alternative remedy, if he requires any further relief. 3. In response, Sri.P.P.Jacob – learned Counsel appearing for the 5[th] respondent, submitted that it is also his client's case that Ext.P7 is illegal since it has permitted recovery of certain amounts from him. He argued that law has now been well settled by this Court, through the judgment of a learned Full Bench in _**Chandrasekharan Nair.G & others v.**_ _**Kerala State Co-operative Agricultural and Rural Development Bank Ltd.& others** [2017(5) KHC 15 (FB)] followed by_ _**Jayarajan v. Kozhikode**_ _**Co-operative Bank [2019 (4) KLT 99]**_ that an employee is entitled to higher benefits if it is eligible to him either under a Group Gratuity Scheme or such other; and therefore, that when the Life Insurance Corporation has **WP(C) NO. 27604 OF 2022** **4** paid larger amounts to the Society in the account of his client as gratuity, same could not have been withheld by them on the ground that there is a liability. He argued that no such liability has ever been fixed against his client and that, in any event, it is virtually admitted that the Society has not obtained any Award against him through a process of law. 4. Smt.Parvathy.K – learned Government Pleader appearing for the Joint Registrar, submitted that Ext.P7 has been issued only to the extent of permitting the petitioner - Society to recover amounts found due from the 5[th] respondent and that it does not, _ipso facto,_ direct payment of any gratuity. She submitted that law is now well settled that the eligible amount of gratuity will have to be paid by the petitioner – Society to the 5[th] **WP(C) NO. 27604 OF 2022** **5** respondent, save that sum which has been adjudged as liability. 5. I must say that this Court certainly can travel with the stand taken by the Joint Registrar as afore because, as I have already said above, the judgment of this Court render it indubitable that except that amount which has been adjudged as liability through a process of law, the balance will have to be paid to the 5[th] respondent, notwithstanding the fact that it exceeds the upper cap under the Payment of Gratuity Act. The declarations in _**Chandrasekharan Nair.G**_ (supra) is incontestable in this regard; while in _**Jayarajan**_ (supra), this Court said that the additional amounts recovered under the Group Gratuity Scheme cannot be retained by the Bank, unless there is a liability which has already been adjudicated. ## **WP(C) NO. 27604 OF 2022** **6** 6. In the case at hand, it is without doubt that even though the petitioner - Society says that they are continuing with an enquiry against the 5[th] respondent, no Award obtained by them from the competent Forum adjudging the liability. This is, in fact, expressly conceded. 7. Obviously, therefore, the rigor of the afore two judgments would stand against the petitioner. Resultantly, I order this writ petition with the following directions: a) Ext.P7 is set aside. b) The petitioner - Society is directed to pay and disburse the entire amount of gratuity eligible to the petitioner and which have been received by them from the LIC under the Group Gratuity Scheme, within a period of four months **WP(C) NO. 27604 OF 2022** **7** from the date of receipt of a copy of this judgment. c) I leave full liberty to the Society to approach the competent Arbitrator within the afore time frame for adjudicating and quantifying any liability against the 5[th] respondent; and if they are able to obtain any interim order within the afore time frame, then, certainly, my directions above will stand modulated as per the same. (d) As a consequential corollary to the afore, Ext.P9 will also stand set aside. **==> picture [55 x 12] intentionally omitted <==** ## **DEVAN RAMACHANDRAN** ## **JUDGE** SAS **WP(C) NO. 27604 OF 2022** **8** ## **APPENDIX OF WP(C) 27604/2022** |PETITIONER'S EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE COMPLAINT FILE BY THE 5TH| ||RESPONDENT BEFORE THE 3RD RESPONDENT| |Exhibit P2|TRUE COPY OF THE OBJECTION FILED BY THE| ||PETITIONER BEFORE THE 3RD RESPONDENT| |Exhibit P3|TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE| ||DISTRICT CONSUMER DISPUTES REDRESSAL| ||COMMISSION, MALAPPURAM| |Exhibit P4|TRUE COPY OF THE PRELIMINARY OBJECTION FILED| ||BY THE PETITIONER HEREIN BEFORE THE DISTRICT| ||CONSUMER DISPUTES REDRESSAL COMMISSION,| ||MALAPPURAM| |Exhibit P5|TRUE COPY OF THE ORDER IN I.A. NO.505 OF 2021| ||IN C.C. NO. 32 OF 2021 ON THE FILES OF| ||DISTRICT CONSUMER DISPUTES REDRESSAL| ||COMMISSION, MALAPPURAM I| |Exhibit P6|TRUE COPY OF THE OBJECTION FILED BY THE| ||PETITIONER HEREIN BEFORE THE DISTRICT| ||CONSUMER DISPUTES REDRESSAL COMMISSION,| ||MALAPPURAM.| |Exhibit P7|TRUE COPY OF ORDER DATED 29.03.2021 ISSUED BY| ||THE 3RD RESPONDENT| |Exhibit P8|TRUE COPY OF THE APPEAL MEMORANDUM SUBMITTED| ||BY THE PETITIONER BEFORE THE SECRETARY OF CO-| ||OPERATIVE DEPARTMENT| |Exhibit P9|TRUE COPY OF THE ORDER DATED 04.06.2022| ||PASSED BY 2ND RESPONDENT.| //TRUE COPY// P.A. TO JUDGE