The Peringode Service Co-Operative Bank Ltd v State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`FRIDAY, THE 1[ST] DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945`** ## **`WP(C) NO. 20374 OF 2015`** ## **`PETITIONER:`** ``` THE PERINGODE SERVICE CO-OPERATIVE BANK LTD NO F 1552.,PARASSERY P.O,678 631 PALAKKAD DISTRICT,REPRESENTED BY ITS SECRETARY ``` ``` BY ADVS. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY SRI.A.V.RAVI ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, CO-OPERATION(C) DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM 695 001 2THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL) CIVIL STATION,PALAKKAD 678 001 3REMA CHANGAZHI ILLAM,VATTEKKARA,KATAMPAZHIPURAM P.O, PALAKKAD DISTRICT 678 633 4T. REJITHA THAZHATHETHIL HOUSE,PARASSERY P.O, PALAKKAD DISTRICT 678 631 5OMANAKUNJU PARAKKAL HOUSE,PARASSERY P.O,PALAKKAD DISTRICT 678 631 BY ADVS. SMT.P.R.REENA SRI.RENJITH THAMPAN SR. GP T.P.SAJAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.10.2023, THE COURT ON 01.12.2023 DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 20374 OF 2015 ``` ``` 2 ``` ## **JUDGMENT** 1. Order dated 20.06.2013 of the Joint Registrar of Cooperative Societies Ext.P7 and Ext.P9 Government Order dated 29.11.2014 are under challenge on behalf of the petitioner-society. 2. The facts leading to the filing of the present writ petition, in brief, are that petitioner co-operative society engaged respondents 3 to 5 as clerks on daily wages and later on contract basis to clear pending clerical work. They were disengaged from the service with effect from 16.10.1998. This lead to industrial dispute in I.D.Nos.136, 138 and 139/99 respectively. Vide common award dated 31.05.2001 Ext.P1, Industrial dispute was allowed and petitioner-society was directed to reinstate respondents 3 to 5 in service, reserving the right of the petitioner to terminate the services after complying with the provisions of Section 25F of the Industrial Disputes Act 1947. 3. Vide O.P.No.37118/2001, award was assailed in this Court which was dismissed vide judgment dated 07.03.2003 Ext.P2, however, clarifying that it would be the domain of the ``` WP(C) NO. 20374 OF 2015 ``` ``` 3 ``` petitioner to terminate their services after complying with the provisions of Section 25F of the Industrial Dispute Act, 1947. In lieu thereof, respondents were employed and continue to discharge their duties, but vide Resolution bearing No.21 dated 27.12.2007, their services were terminated. The said order became final as there was no such challenge. 4. In 2013, the petitioner resolved to make appointments to two posts of peon and one post of night watchman and accordingly a notification was published inviting applications to fill up such posts in leading newspaper as per the Circular No.79/11 issued by the Registrar of Co-operative Societies. Notification dated 14.02.2013 to this effect is Ext.P4. Cut-off date for receipt of the application was on or before 05.03.2013. 5. Respondents 3 to 5 submitted representation dated 20.03.2013 to the Secretary of the petitioner-Society for seeking re-employment, when no action was taken approached this Court vide W.P.(C).No.8446/2013. This Court vide order dated 25.03.2013 Ext.P6 directed the Joint Registrar to take a call on the application. A notice from the office of the Registrar was received ``` WP(C) NO. 20374 OF 2015 ``` ``` 4 ``` in respect of the representation submitted by the party respondents. Petitioner appeared and submitted a reply, however, Joint Registrar vide impugned order dated 20.06.2013 Ext.P7 directed the petitioner to retain the petitioner in employment by invoking the provisions of section 25H of the Industrial Dispute Act, 1947. The aforementioned order Vide Ext.P8 was appealed resulted into dismissal. 6. Learned counsel appearing on behalf of the petitioner submitted that the order Ext.P9 of the Secretary, Co-operative Society is most cryptic and sketchy as it sans reasons. It is settled law that petitioner is not obliged to consider the request as contained in Section 25H of the Act as notification was promulgated after six (6) years of termination of private respondents. Moreover the posts which the respondents were working were of clerks, different post and now advertised posts were peons/night watchman. In other words, Section 25H could have been invoked only if the vacancy arises in the category of posts which retrenched employee held. Order Ex.P8 is based upon a factual report which has not seen in the light of the day nor ``` WP(C) NO. 20374 OF 2015 ``` ``` 5 ``` confronted to the petitioner management. 7. On the other hand, learned counsel representing the party respondents supported the impugned order and stated they were working under the management Bank as clerks but denied employment from 16.08.1998 which was assailed resulted into their re-appointment. Section 25H gives a right to a worker to have preference in the matter of re-employment but did not deny the retrenchment vide Resolution No.21 dated 27.12.2007 which was in accord of provisions of Section 25F of the Industrial Dispute Act 1947 and urged this Court for dismissal of the writ petition. 8. In rebuttal, learned counsel appearing on behalf of the petitioner relied upon the judgment of the Division Bench of this Court in **Raveendran** v. **State of Kerala** [2007 (3) KLT 558] to contend that the Joint Registrar did not have any jurisdiction to try the matter as it was the domain of Arbitration Court as per the provisions of Section 69, 70 and 80 of the Kerala Co-operative Societies Act. 9. I have heard the learned counsel for the parties and appraised the paper book. ``` WP(C) NO. 20374 OF 2015 ``` ``` 6 ``` 10. The employment of the party respondents, their retrenchment, order of the Industrial Tribunal affirmed by the High Court granting liberty to the petitioner to retrench by confirming to the provisions of Section 25F of the Industrial Dispute Act, 1947, are not in dispute. After the award, respondent Nos.3 to 5 were taken into employment and retrenched vide Resolution No.21 ibid in December, 2007. It is a matter of record that the said order of retrenchment was not assailed. 2013 notification was called for filling up the post of one peon and night watchman and not the post of clerk held by the party respondents. Section 25H of the Industrial Dispute Act, 1947, applies only in respect of the post held by retrenched employee. It would worthwhile to mention the relevant portion of the order of the Appellate Authority relying upon some report which has not seen in the light of the day much less it sans reasons: 9) When the appellant society did not consider the Exhibit P7 representation the Respondents 2 to 4 preferred WP(C)8446/2013 before the Hon'ble High Court. The Hon'ble High Court has considered all the matters which were transacted between the parties up to 25.03.2013 and so the ``` WP(C) NO. 20374 OF 2015 ``` ``` 7 ``` judgment in WP(C) 8446/13 dated 25.03.2013 is final as far as this matter is concerned. The appellant society is acting with vengeance and personal grudge. They are not obeying any order of judgment from any Tribunal or Court, even by the Hon'ble High Court. The appellant society is bound to intimate the respondents 2 to 4 by registered post regarding the vacancy if any in the society which are available for the Respondents as per the Rule 78 of Industrial Disputes (Central) Rules 1957. Hence, in the interest of justice the appeal may be dismissed with cost to the Respondents 2 to 4. 10) The representative of first Respondent stated that what is stated the Factual Reportare facts and no more to add. 11) The matter has been examined by Government in detail with reference to the Appeal Petition, Factual Report, the argument notes and the points raised during hearing. The counsel for appellant has argued that the Respondents 2 to 4 has been retrenched from service as per section 25 (F) of Industrial Dispute Act and they have not submitted theirapplication well in time. But the 1[st] Respondent has submitted that they had submitted their application well in time and as per the award of the Industrial Tribunal the Respondents 2 to 4 are eligible for reappointment in the Bank. Hence considering the above facts and the age of the respondents on humanitarian grounds the Appeal Petition is rejected upholding the order of Joint Registrar of Cooperative Socieites (General), Palakkad. The stay already ``` WP(C) NO. 20374 OF 2015 ``` ``` 8 ``` given is also vacated.” 11. As per the ratio decidendi culled out in the judgment cited, the dispute amongst the employees vests with the Arbitration Court. But, since this Court had vide order dated 25.03.2013 directed the joint registrar to take a call on the representation, it would not lie in the mouth of the petitioner to challenge jurisdiction of the Joint Registrar. The order Ext.P9 is thus in my view is not justiciable and sans merit for, its lacks reasons too. The same is set aside. The matter is remitted to Appellate Court to take into consideration all the factors regarding the applicability of the provisions of Section 25H as well as report to be supplied to the petitioner and seek any further objections if the parties deem it appropriate. Let this exercise be undertaken within a period of four (4) months from the date of receipt of copy of the judgment. Sd/- **AMIT RAWAL JUDGE** nak ``` 9 ``` ## **`WP(C) NO. 20374 OF 2015`** ## **`APPENDIX OF WP(C) 20374/2015`** ``` PETITIONER EXHIBITS ``` ``` TRUE PHOTOCOPY OF THE AWARD DATED 31-05- EXHIBIT P1 2001 IN I.D NO 136/99 AND CONNECTED CASES ``` ``` TRUE PHOTOCOPY OF THE JUDGMENT DATED 07- EXHIBIT P2 03-2003 IN W.P(C) NO 37118/01® ``` ``` `TRUE PHOTOCOPY OF THE JUDGMENT DATED 07- EXHIBIT P3 12-2008 IN R.P NO 389/2003 ``` ``` TRUE PHOTOCOPY OF THE NOTIFICATION DATED 14-02-2013 PUBLISHED IN MATHRUBHUMI DAILY EXHIBIT P4 DATED 16-02-2013 ALONG WITH ITS ENGLISH TRANSLATION ``` - `EXHIBIT P5` ``` TRUE PHOTOCOPY OF THE REPRESENTATION DATED 20-03-2013 SUBMITTED BY THE RESPONDENTS 3 TO 5 ``` ``` TRUE PHOTOCOPY OF THE JUDGMENT DATED 25- EXHIBIT P6 03-2013 IN WP(C) NO 8446/2013(E) ``` - `EXHIBIT P7` ``` TRUE PHOTOCOPY OF THE ORDER BEARING NO 2775/2013/AEL DATED 20-06-2013 ALONG WITH ITS ENGLISH TRANSLATION ``` ``` TRUE PHOTOCOPY OF THE APPEAL NO EXHIBIT P8 9357/C3/2013 ``` ``` TRUE PHOTOCOPY OF THE ORDER BEARING EXHIBIT P9 G.O(RT) NO 666/2014/CO-OP DATED 29-11- 2014 ```