The President, Thamarakudy Service Co-operative Bank Ltd. v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE AMIT RAWAL MONDAY, THE 4[TH] DAY OF OCTOBER 2021/12TH ASWINA, 1943 W.P.(C) NO.8308 OF 2014 ## PETITIONER: THE PRESIDENT, THAMARAKUDY SERVICE CO-OPERATIVE BANK LTD.NO.2815, THAMARAKUDY P.O., KOTTARAKKARA, KOLLAM DISTRICT-691 560. BY ADVS. SRI.O.V.MANIPRASAD SRI.JOLLY GEORGE SRI.SAJU J PANICKER ## RESPONDENTS: 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. - 2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695 001. - 3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOLLAM-691 001. - 4 THE ASSISTNT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTARAKKARA, KOLLAM DISTRICT. - 5 SREEKALA O., AGED 43 YEARS, W/O.K.PRABHAKARAN PILLAI, "SAGARA", KAREEPRA, KUZHIMATHICAUD P.O., KOLLAM-691 509. BY ADVS. SMT.JEENA JOSEPH SRI.G.D.PANICKER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.10.2021 ALONG WITH W.P. (c)No.27469/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)Nos.8308/2014 & 27469/2013 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE AMIT RAWAL MONDAY, THE 4[TH] DAY OF OCTOBER 2021/12TH ASWINA, 1943 W.P.(C)NO.27469 OF 2013 ## PETITIONER: SREKALA.O., AGED 42 YEARS, W/O.K.PRABHAKARAN PILLAI, SAGARA, KAREEPRA, KUZHIMATHICAUD P.O, KOLLAM-691 509, PEON, THAMARAKUDY SERVICE CO-OPERATIVE BANK LTD., NO 2815, THAMARAKUDY (TERMINATED) BY ADVS. SRI.G.D.PANICKER SMT.JEENA JOSEPH ## RESPONDENTS: 1 JOINT REGISTRAR, CO-OP. SOCIETIES CO-OP. SOCIETIES (GENERAL), KOLLAM-691 001 2 THAMARAKUDY SERVICE CO-OPERATIVE BANK LTD., NO 2815, REPRESENTED BY ITS SECRETARY, THAMARAKUDY P.O, KOTTARAKKARA-691 531 3 THE PRESIDENT, THAMARAKUDY SERVICE CO-OPERATIVE BANK LTD., NO 2815, THAMARAKUDY P.O, KOTTARAKKARA-691 531 BY ADVS. SRI.M.V.ANANDAN SRI.GILBERT GEORGE CORREYA SRI.P.K.VIJAYAMOHANAN GOVERNMENT PLEADER SRI.JIMMY GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.10.2021 ALONG WITH W.P. (C)No.8308/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)Nos.8308/2014 & 27469/2013 **==> picture [8 x 9] intentionally omitted <==** ## JUDGMENT Two writ petitions are disposed of by this common judgment. In Writ Petition No.8308 of 2014, the President, Thamarakudy Service Co-operative Bank Ltd, challenges Ext.P12 order dated 8.10.2013 passed by the Joint Registrar of Co-operative Societies, Kollam ordering for reinstatement of 5[th] respondent Smt.Sreekala O., to the service with immediate effect. Smt.Sreekala O., Peon, filed W.P(C) No.27469 of 2013 for a direction to the society to implement the aforesaid order dated 8.10.2013. Since common questions arise, these writ petitions are decided together. 2. In the first writ petition, the case set out by the Society is that, Smt.Sreekala O., the 5[th] respondent therein, on contractual basis on 24.1.2005 was appointed as Junior Clerk in the service of the petitioner/bank. Upon expiry of the W.P.(C)Nos.8308/2014 & 27469/2013 4 contractual term, her service was terminated. As and when the vacancies of Peon, Attender, Night watchman arose, applications were invited by the bank from qualified candidates by publishing notification in newspaper. After written test and interview separate rank lists for attender and peon were prepared. In pursuance to the aforementioned advertisement, the 5[th] respondent submitted an application for the post and stood 2[nd] in the rank list for the post of peon and 3[rd] in the list for the post of attender. One Mr.B.Prakash, 1[st] rank holder in the rank list of Peon was appointed on 9.6.2007 and Smt.L.T.Anitha Kumari who secured 1[st] rank in the rank list of Attender was appointed on 9.6.2007. 3. Learned counsel appearing on behalf of the petitioner submitted that the 5[th] respondent raised her plea of appointment on the basis of an undated letter Ext.P3, which also did not carry the seal of the bank or of the president. The 5[th] respondent preferred Writ Petition (Civil) No.17783 of 2010 W.P.(C)Nos.8308/2014 & 27469/2013 5 before this Court, seeking a direction to the bank for her appointment as Peon, this Court disposed of the writ petition by judgment dated 09.06.2010 directing consideration of her representation. The 3[rd] respondent Registrar considered the representation and rejected the case of the 5[th] respondent vide order dated 01.11.2010 (Ext.P6). A criminal complaint was filed against the 5[th] respondent on 27.7.2010, alleging fabrication of the appointment order which was produced before this court in the writ petition aforementioned. The Sub Inspector of Police, Kottarakkara Police Station registered crime No.1863 of 2010 dated 27.07.2010 (Ext.P9). 4. Despite the matter having been put to an end vide Ext.P6, 5[th] respondent again submitted a request to the Chief Minister for taking necessary steps for the appointment. Vide impugned Ext.P12 dated 8[th] October 2013, appointment order has been passed, which is illegal and not sustainable as there is no W.P.(C)Nos.8308/2014 & 27469/2013 6 challenge to Ext.P6, dated 01.11.2010. The aforementioned order has been challenged before this court as the 5[th] respondent filed the other writ petition for implementing the same. The Registrar do not have any power to issue Ext.P12 order directing reinstatement of the petitioner in service as the remedy for the petitioner on termination was to invoke the jurisdiction of the Arbitration Court. 5. Counsel for the 5[th] respondent, petitioner in W.P(C).27469 of 13, submitted that the bank is duty bound to obey the order issued by the Registrar. The petitioner was unnecessarily made a scapegoat of political rivalry between two personalities. It is most unfortunate that the petitioner was compelled to approach this court for implementation of the order and prays for dismissal of the first writ petition and allowing of the 2[nd] writ petition. 6. Heard counsel on either side and perused the W.P.(C)Nos.8308/2014 & 27469/2013 7 paper books. 7. While admitting the first writ petition, this Court on 24.03.2014 passed the following order. “Admit. Government Pleader takes notice for R1 to R4. Issue notice to R5. There shall be an interim stay of Ext.P12 for a period of three months”. 8. The aforementioned interim order was made absolute vide order dated 12.12.2014, which reads as follows: “Interim order is extended until further orders. Post for hearing. Pleadings to be completed by then”. 9. The power of the Registrar while going through the provisions of the Co-operative Societies Act, came to be pondered by the Division Bench of this Court in _**Ravindran** v._ _**State of Kerala** (2007 (3) KLT 558)_ ; where it was held that, any dispute arising in connection with the servants from different classes of societies, including their promotion is to be decided by the Arbitration Court. W.P.(C)Nos.8308/2014 & 27469/2013 8 Prior to passing of Ext.P12 which has been passed on the basis of the request submitted by the 5[th] respondent to the Chief Minister, vide Ext.P6 dated 01.11.2010 the Joint Registrar of Co-operative Societies passed a detailed order, which reads as follows: “Order of the Joint Registrar of Co-operative Society, (General) Kollam (Present B.Sivan Pillai) No.C.R.P.(2) 5174/10 Date 01.11.2010 Sub: Thamarakudy Service Co-op Bank No.2815order passed in compliance of the direction of Hon'ble High Court of Kerala upon the complaint preferred by Smt.Sreekala and Arun Kumar. ## Ref: 1. Complaint dated 04.06.2010 filed by Smt.Sreekala and Arun Kumar before this office. 2. Judgment of the Hon'ble High Court dated 09.06.2010 in Writ Petition No.17783/2010 dated filed by Smt.Sreekala and Arun Kumar. 3.Letter No.1262/2010 dated 06.09.2010 of the Assistant Registrar (General), Kottarakara. 4. Letter dated 29.09.2010 issued from this office. 5. Depositions and statements of Smt.Sreekala and Arun Kumar in the personal hearing held on 29.09.2010. 6. Statement given by President of the Bank in the personal hearing date 29.09.2010. Smt.Sreekala and Arun Kumar had preferred a complaint before this office regarding the appointment to the staff category in Thamarakudy Service Co-operative Bank No.2815 as per Reference W.P.(C)Nos.8308/2014 & 27469/2013 9 No.1. The Hon'ble High Court of Kerala had passed Judgment dated 09.06.2010 in Reference No.2 Writ Petition No.17783/2010 filed by Smt.Sreekala and Arun Kumar wherein the Ho'ble High Court disposed of the matter directing this office to consider Ext.P2 i.e., the complaint filed by them alleging that though they are included in the rank list and despite the fact that vacancies are available to the post of peon, they were not appointed. In compliance of the direction of the Hon'ble High Court, a report was called for from the Assistant Registrar (General), Kottarakara and a report was filed as per 3[rd] paper above. In furtherance, a notice as per Reference No.4 was issued to Smt.Sreekala, Arun Kumar and the President of the Bank for a personal hearing. On hearing the parties on 22.09.2010, following statements and depositions were made by the parties. As per the depositions made by Smt.Sreekala, she stated that a complaint was made before this office regarding the non-appointment to the post of peon even after securing 2[nd] and 3[rd] rank in the list dated 29.06.2007 published by the bank. It is stated that a writ petition was also filed by her before the Hon'ble High Court for the same purpose. As per the list published on 29.06.2007, two persons were appointed to the post of attender and night watchman. She further deposed that though she had served as a peon on temporary basis for years and made the security deposit, she was not appointed even when there were vacancies available. The person who was appointed to the category of night watchman as per the rank list was shifted to the post of peon. Arun Kumar has been working as collection agent from 01.09.2006 and as a commission agent in manure depot from 18.07.2007. From 01.10.2010 onwards he is being paid consolidated amount of Rs.3,000/-. Smt.Sreekala who was appointed through employment exchange served the bank as a cashier from 24.01.2005. Thereafter she had continued as a cashier till 19.07.2010. She was the 2[nd] rank holder in the rank list published on 29.07.2007 to the post of peon. Upon the assurance made by the managing committee that she would be given permanent appointment, she had canvassed deposit to the tune of Rs.85,00,000/-. She further deposed that as she W.P.(C)Nos.8308/2014 & 27469/2013 10 had crossed the age 40 years and she cannot apply for any other job and therefore she prayed for the appointment for the above post. Arun Kumar deposed that he had canvassed deposit to the tune of Rs.75,00,000/- upon the assurance made by the managing committee that he would be given permanent appointment. As per the statement made by the president of bank it is stated that a notification was published for the appointment of Sub staff category. Thereafter written test and interview was conducted and a rank list was published on 06.06.2007. Smt.Sreekala was the 2[nd] rank holder in the peon rank list and 3[rd] rank holder in the attender category. The then existing vacancies were filled from the above rank list. At present no vacancies are available and the rank list expired on 07.06.2010. It is stated that as the tenure of the rank list expired, complainants have no right to claim appointment to the above post. As per the present financial conditions, the bank is unable to make appointment to the Sub staff category. Meanwhile the complainants preferred writ petition No.17783/2010 before the Hon'ble High Court of Kerala seeking a prayer to consider Ext.P2 complaint as the Ext.P2 complaint was not considered by this office. Further a prayer for setting aside the illegal promotions and appointments made in contravention of Rule 176 of the Co-operative Society rules. In the writ petition it is contended that the promotions and appointments were made ignoring their right to get appointed. The president of the bank further deposed that as per reference No.2 judgment, Hon'ble High Court directed to consider Ext.P2 complaint within 1 month and further directed that till a decision is taken on Ext.P2 complaint, no appointment or promotions are to made in the bank. As per the reference No.2 judgment, the Hon'ble High Court of Kerala directed to take a decision on Ext.P2 within one month. But, the president deposed that no such Ext.P2 complaint pending before the Joint Registrar when of the writ petition was filed and that such a complaint was fraudulent and a concocted one. Smt.Sreekala had filed another writ petition No.23035/2010 wherein an interim order dated 23.07.2010 was passed in her favour allowing W.P.(C)Nos.8308/2014 & 27469/2013 11 to continue in service till the disposal of the writ petition. It is further deposed that the documents submitted by Smt.Sreekala for getting appointed to the post of peon is false and fabricated and a case No.1863 is registered against the petitioner and the same is pending before the Judicial First Class Magistrate Court-I, Kottarakara. It is further deposed that as the bank had filed a counter affidavit in writ petition No.23035/2010, the complainant had withdrawn the above said petition and therefore the interim order is not in operation. In such circumstances, where the claim of the complainant to get appointed from the expired rank list cannot be accepted and Ext.P2 complaint is to be rejected, the statement of the bank is to be accepted. It is stated in the banks statement that the allegation regarding the appointment of two more persons from the said rank list is false and that the managing committee is not intending to make any such appointment as alleged by the complainants. As per the reference No.3 report filed by the Assistant Registrar (General), Kottarakara, it is reported that the bank has been classified as ClassIII from 1993 onwards and that Smt.Sreekala and Arun Kumar got the 2[nd] and 3[rd] rank respectively in the rank list published dated 09.06.2007 to the post of peon. Sri.M.S.Manoj who was appointed as night watchman based on the rank list published dated 09.06.2007 was shifted to the vacant post of peon. It is reported by the Assistant Registrar (General) that the rank list expired on 09.06.2010 and no complaints whatsoever was received from any persons regarding the appointment in any posts. On perusal of the records, statements, depositions and report of the Assistant Registrar(General) in this case, the following facts are revealed:- a) It is found that Smt.Sreekala and Arun Kumar attended the written examination and interview conducted for the appointment to the post of Sub staff category when they were not permanent employees and subsequently they were included in the rank list also. From the above it is understood that the appointment of Smt.Sreekala and Arun Kumar were made in contravention of direction No.III(3) in circular No.18/91 of Registrar of Co-operative W.P.(C)Nos.8308/2014 & 27469/2013 12 Societies. b) It is seen that the appointment of the night watchman to the post of peon from the above rank list was made without the approval of this office and hence such appointment is in violation of Cooperative Societies Act and Rules. c) It is found from the deposition of the president of bank that the documents submitted by Smt.Sreekala along with writ petition No.23035/2010 were fabricated and concocted. Smt.Sreekala had also preferred several complaints by fabricating documents and thus the managing committee of the bank had initiated criminal proceedings against her. Subsequently she had withdrawn the writ petition filed against the bank. It is understood that the act of Smt.Sreekala amounts to cheating and criminal breach of trust. In such circumstances I hereby pass the following order:- ORDER In the light of the findings recorded as 'a' to 'c' herein above and the report of the Assistant Registrar (General), I am satisfied that complaint made by Smt.Sreekala who is secured 2[nd] rank and Sri.Arun Kumar who secured 3[rd] rank in the rank list for the post of peon published on conducting written test and interview in the Thamarakudy Service Cooperative Bank deserves to be rejected and it is here by ordered so. The directions in the judgment referred as 2[nd] paper above of the Hon'ble High Court in W.P.(C)No.7783/2010 is complied. _Sd/-_ Joint Registrar(General) 1. Smt.Sreekala, Sagara, Karipra, Kuzhimanthikadu P.O., Kundra, Kollam 2. Arun Kumar R.S., Narayana Vilasam, Thamarakudy P.O., Kottarakara, Kollam 3. President /Secretary, Thamarakudy Service Sahakarana Bank No.2815 Copy to: - 1.Assistant Registrar (General), Kottarakara - 2.Stock file/Spare” W.P.(C)Nos.8308/2014 & 27469/2013 13 10. It was found that one of the orders claiming appointment was found to be fabricated and concocted. It was concluded that, 5[th] respondent secured 2[nd] rank and only the first rank holder was appointed for the post of peon in turn. Once the matter regarding appointment was allowed to rest and was not assailed in the Arbitration Court there was no case for the 5[th] respondent to make a complaint to the Chief Minister as evident from the 4[th] reference of the impugned order. Reference 1 to 5 in the impugned order dated 8.10.2013, reads as follows: “Ref: 1. Decision of the bank managing committee No.14 dated 28.07.2008. 2. Letter of appointment date 09.06.2007 to the post of peon issued to Smt.Sreekala based on the written test and interview. 3. Letter dated 22.07.2010 issued by branch manager, Mailom Branch to Smt.Sreekala. 4. Representations given by Smt.Sreekala to the Hon'ble Chief Minister of the State of Kerala in “Jana Smabaraka Paripadi”, to the Minister for Co-operative Societies, Registrar of Co-operative Societies and District Collector. 5. Report No.1719/11 dated 22.11.2011 of W.P.(C)Nos.8308/2014 & 27469/2013 14 the Assistant Registrar, Kottarakara.” 11. The Registrar could not have ordered for reinstatement of the 5[th] respondent, petitioner in W.P(C).27469 of 13, as the remedy for her was to approach the Arbitration Court. The order impugned Ext.P12 whereby the 5[th] respondent brought up the issue again, is without jurisdiction and arbitrary much less illegal. Accordingly it is set aside. W.P.(C)No.8308 of 2014 is allowed and W.P. (C)No.27469/13 is dismissed. _Sd/-_ ss AMIT RAWAL JUDGE W.P.(C)Nos.8308/2014 & 27469/2013 15 ## APPENDIX OF WP(C) 8308/2014 PETITIONER EXHIBITS: P1 : COPY OF THE PAGE 149 OF THE MINUTES BOOK OF THE BANK CONTAINING RESOLUTION NO.140 DTD.28.7.2008. P2 : COPY OF THE RESOLUTION NO.187. P3 : COPY OF THE ALLEGED APPOINTMENT ORDER. P4 : COPY OF WPC NO.17783 OF 2010 FILED BY THE 5TH RESPONDENT AND ANOTHER WITH EXTS. P5 : COPY OF THE JUDGMENT DTD.9.6.2010 IN WPC NO.17783/2010. P6 : COPY OF THE ORDER NO.CRP(2)5174/10 DTD.1.11.2010. P7 : COPY OF THE WRIT PETITION NO.23035/2010. P8 : COPY OF THE LETTER DTD.22.7.2010 PRODUCED AS EXT.P5 IN EXT.P7 WRIT PETITION. P9 : COPY OF THE FIR & FIS IN CRIME NO.1863/2010 OF KOTTARAKKARA POLICE STATION. P10: COPY OF THE LETTER DTD.30.11.2011 OF THE 3RD RESPONDENT. P11: COPY OF THE REPORT DTD.22.11.2011. P12: COPY OF THE ORDER DTD.8.10.2013 OF THE 3RD RESPONDENT. P13: COPY OF THE PETITION DTD.18.10.2013 BEFORE THE 3RD RESPONDENT. P14: COPY OF THE COMPLAINT FILED BY THE PETITIONER ON 6.3.2014. P15: COPY OF THE FIR IN CRIME NO.522/2014 OF KOTTARAKKARA POLICE STATION. W.P.(C)Nos.8308/2014 & 27469/2013 16 ## APPENDIX OF WP(C) 27469/2013 PETITIONER EXHIBITS: EXHIBIT P1 A TRUE PHOTOCOPY OF THE APPOINTMENT ORDER EXHIBIT P2 A TRUE PHOTOCOPY OF THE ORDER DATED 22-07-2010 EXHIBIT P3 TRUE PHOTOCOPY OF THE LETTER DATED 30-11-2011 EXHIBIT P4 A TRUE PHOTOCOPY OF THE REPORT OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES EXHIBIT P5 A TRUE PHOTOCOPY OF THE ORDER DATED 08-10-2013