The OONNUKAL SERVICE CO-OPERATIVE BANK LTD. v. Joint Registrar of Co-operative Societies (General), Ernakulam and Smt. Mary Mathew

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 20TH DAY OF JUNE 2013/30TH JYAISHTA 1935** ## **WP(C).No. 7783 of 2013 (W)** **---------------------------** **PETITIONER:** **-----------** **THE OONNUKAL SERVICE CO-OPERATIVE BANK LTD.NO.E-58, OONNUKKAL, ERNAKULAM - 686 693 REPRESENTED BY THE CONVENOR OF THE ADMINISTRATIVE COMMITTEE.** **BY ADV. SRI.GEORGE POONTHOTTAM** **RESPONDENTS:** **------------** **1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL), ERNAKULAM.** **2. SMT.MARY MATHEW, PEECHATTU VEEDU, NELLIMATTOM,** **ERNAKULAM DISTRICT.** **R2 BY ADV. SRI.V.G.ARUN R2 BY ADV. SRI.T.R.HARIKUMAR BY SR. GOVERNMENT PLEADER K.K.SAIDALAVI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 7783 of 2013 (W) ---------------------------** ## **APPENDIX** ## **PETITIONER'S' EXHIBITS** **-----------------------** **EXHIBIT P1. COPY OF THE APPLIATION DATED 14.08.1987 GIVEN BY THE 2ND RESPONDENT.** **EXHIBIT P2. COPY OF THE RESOLUTION NO.319 DATED 14.08.1987.** **EXHIBIT P3. COPY OF THE APPLICATION DATED 05.04.4988 GIVEN BY THE 2ND RESPONDENT.** **EXHIBIT P4. COPY OF THE APPLICATION DATED 23.04.1993 GIVEN BY THE 2ND RESPONDENT.** **EXHIBIT P5. COPY OF THE RESOLUTION NO.454 DATED 26.04.1993.** **EXHIBIT P6. COPY OF THE APPLICATION DATED 15.06.1999 GIVEN BY THE 2ND RESPONDENT.** **EXHIBIT P7. COPY OF THE RESOLUTION NO.221 DATED 12.07.1999.** **EXHIBIT P8. COPY OF THE APPLICATION DATED 06.08.1999 GIVEN BY THE 2ND RESPONDENT.** **EXHIBIT P9. COPY OF THE RESOLUTION NO.308 DATED 14.08.1999.** **EXHIBIT P10. COPY OF THE ACKNOWLEDGMENT CARD.** **EXHIBIT P11. COPY OF THE RESOLUTION NO.719 DATED 10.03.2000.** **EXHIBIT P12.COPY OF THE ODER NO.CRP 2163/2000 DATED 9.7.2001 PASSED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ERNAKULAM.** **EXHIBIT P13. COPY OF THE RESOLUTION NO.302 DATED 05.09.2011.** **EXHIBIT P14. COPY OF THE RESOLUTION NO.443 DATED 10.11.2011.** **EXHIBIT P15.COPY OF THE COMMUNICATION NO.1618/2001-2002 DATED 20.11.2001 GIVEN TO THE 2ND RESPONDENT.** **EXHIBIT P16. COPY OF THE REPORT DOMESTIC ENQUIRY IN RESPECT OF THE CHARGES LEVELLED AGAINST SMT.MARY MATHEW, SENIOR CLERK/CASHER.** **WP(C).No. 7783 of 2013 (W)** **EXHIBIT P17. COPY OF THE COMMUNICATION NO.1006/02-03 DATED 31.07.2002 GIVEN TO THE 2ND RESPONDENT.** **EXHIBIT P18. COPY OF THE EXPLANATION DATED 08.08.2002 GIVEN BY THE 2ND RESPONDENT.** **EXHIBIT P19. COPY OF THE COMMUNICATION NO.1266/02-03 DATED 13.09.2002 GIVEN TO THE 2ND RESPONDENT.** **EXHIBIT P20. COPY OF THE JUDGMENT N O.P.NO.4041/2002 DATED 24.11.2003.** **EXHIBIT P21. COPY OF THE PROCEEDINGS OF THE PETITIONER BANK HELD ON 14.08.2004.** **EXHIBIT P22. COPY OF THE ORDER NO.C.R.P.1/8072/04 DATED 24.12.2004 ISSUED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES.** **EXHIBIT P23. COPY OF THE JUDGMENT IN WP(C)NO.1729/2005 DATED 13.10.2008.** **EXHIBIT P24. COPY OF THE ORDER NO.C.R.P.(1)7216/08 DATED 27.02.2013 ISSUED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ERNAKULAM.** ## **RESPONDENTS' EXHIBITS** **---------------------** **EXHIBIT R2(A): COPY OF THE APPLICATION SUBMITTED BY THE 2ND RESPONDENT DATED 1.4.1995.** **EXHIBIT R2(B): COPY OF THE REQUEST DATED 19.6.1997 SUBMITTED BY THE 2ND RESPONDENT.** **EXHIBIT R2(C): COPY OF THE PROCEEDINGS OF THE PART-TIME ADMINISTRATOR DATED 28.6.1997** **EXHIBIT R2(D): COPY OF THE RESOLUTION NO.453 DATED 6.8.1998 OF THE MANAGING COMMITTEE** **EXHIBIT R2(E): COPY OF THE APPLICATION SUBMITTED BY THE 2ND RESPONDENT DATED 6.8.1999.** //True Copy// P.A to Judge ab ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.No.7783 of 2013 ---------------------------------------Dated this the 20[th] day of June 2013 ## **J U D G M E N T** The petitioner society challenges Ext.P24 order passed by the Joint Registrar on the ground that it is passed without jurisdiction. 2. The facts in the case would disclose that the 2[nd] respondent while working as an employee of the petitioner society was terminated from service after conducting a disciplinary enquiry for unauthorised absence from service and that she had left India without intimating the Management. She challenged the said order before the Joint Registrar. Initially the Joint Registrar set aside the impugned order and directed reinstatement. The petitioner filed W.P.C.No.1729 of 2005 alleging violation of natural justice. This Court by judgment dated 13/10/2008 directed the Joint Registrar to reconsider the matter after giving sufficient opportunity to both the parties. Accordingly the Joint W.P.C..No7783/13 2 Registrar passed Ext.P24 order setting aside the order of dismissal and directing reinstatement of 2[nd] respondent in service. This order is impugned by the petitioner mainly on the ground that the Joint Registrar has no jurisdiction to pass an order after the amendment of the Kerala Co-operative Societies Act (hereinafter referred to as the Act) which reads as under: _“_ _**69. Disputes to be decided by Cooperative Arbitration Court and Registrar.-**_ _(2) For the purpose of sub-section (1), the following shall also be deemed to be disputes, namely--_ _(a) X X X X_ _(b) X X X X_ **==> picture [88 x 14] intentionally omitted <==** _(d) any dispute arising in connection with employment of officers and servants of the different classes of societies specified in sub-section (1) of S.80, including their promotion and inter se seniority.”_ W.P.C..No7783/13 3 3. It cannot be disputed that after the amendment of the Act any dispute with reference to the conditions of employment of officers and servants of different classes of societies specified in Section 80(1) including their promotion and inter se seniority is to be decided by the Arbitration Court under the provisions of the Act. The learned counsel for the petitioner relies upon the judgment in **P.S.Ravendran v. State of Kerala and Others** [2007(3) KLT 780] in order to contend that if the Joint Registrar decides a dispute for which he has no jurisdiction, the order passed by the Joint Registrar is without jurisdiction and therefore liable to be declared as void. 4. Counter affidavit is filed by the 2[nd] respondent inter alia contending that the issue involved in the present disciplinary proceedings had arisen prior to the amendment coming into force and therefore the Joint Registrar had appropriate jurisdiction to interfere with the resolution passed by the Managing Committee. That apart even this Court in Ext.P23 judgment in W.P.C.No.1729 of 2005 had W.P.C..No7783/13 4 permitted the Joint Registrar to reconsider the matter after notice to both parties pursuant to which Ext.P24 order had been passed. It is further indicated that the Joint Registrar had properly considered the matter and it is found that there is no fault on the part of the petitioner whereas the petitioner had applied for leave which was not granted and the management did not inform the petitioner about the rejection of leave in the address furnished by her. Apparently the petitioner was abroad during the relevant time and the particulars of the 2[nd] respondent was furnished to the society. While rejecting the application for leave the society ought to have informed the same to the petitioner in her address while she was abroad. Having not done so, it is found that the decision taken by the managing committee was not in accordance with the procedure prescribed and the resolution passed by the managing committee was directed to be set aside. 6. The learned counsel for the respondents submits that, even if it is assumed that the order is passed without W.P.C..No7783/13 5 jurisdiction, having regard to the factual statement in Ext.P24 order, it could be seen that there was no fault on the part of the 2[nd] respondent and therefore even if the order is passed without jurisdiction still there is no reason why this Court should interfere with Ext.P24 order as interference with the said order will cause substantial prejudice to the 2[nd] respondent. It is also stated that even before the writ petition is filed the 2[nd] respondent was reinstated in service and if, as matters stand now, she is relegated to the Arbitration Court, it will take several years to reach a finality and by the time she would reach the age of superannuation as well. 7. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel appearing for the 2[nd] respondent. 8. The short question to be decided in the writ petition is whether Ext.P24 order is valid or not. 9. It cannot be disputed that as matters stand now the Joint Registrar has no jurisdiction to entertain a dispute W.P.C..No7783/13 6 with reference to the employment of a person who is employed in a society. Going by Section 69(2)(d) of the Act, the Arbitration Court alone has power to entertain the dispute with reference to dismissal of an employee. 10. No doubt, as far as this case is concerned, disciplinary proceedings are initiated and culminated in an order of dismissal at Ext.P19 dated 13/09/2002. On a perusal of Ext.P19, it is seen that on several occasions, the petitioner had sought for leave and finally when the leave application was not allowed, she had challenged the same before the Joint Registrar on coming to know about the order of dismissal. She had challenged the dismissal when notice in regard to the same was published. I do not think that indulgence can give way to jurisdictional issues. 11. Having regard to the aforesaid facts and circumstances, I am of the view that Ext.P24 order is liable to be interfered with as the same is passed without jurisdiction. In fact, in Ext.P24 order itself the Joint Registrar had formed an opinion that the Arbitration Court alone has W.P.C..No7783/13 7 the power to consider the matter and such an opinion was expressed in the file. But still the Joint Registrar had proceeded to pass the impugned order. This, according to me, is without sanction of law and the Joint Registrar had no jurisdiction to pass such an order. In the result, this writ petition is allowed as follows: Ext.P24 order is hereby quashed. However, quashing of Ext.P24 shall not stand in the way of the petitioner approaching the Arbitration Court in terms with Section 69 (2)(d) of the Act. ## **(A.M.SHAFFIQUE, JUDGE)** jsr