The Titanium Labour Co-operative Society Ltd. and its President v. Kerala Co-operative Tribunal, Co-operative Arbitration Court, and D. Vishwanathan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY ,THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940** ## **WP(C).No. 35466 of 2018** ## **PETITIONERS:** - **1 THE TITANIUM LABOUR CO-OPERATIVE SOCIETY LTD.T.206, KOCHUVELI, TRIVANDRUM-21 REPRESENTED BY ITS SECRETARY.** **2 PRESIDENT, TITANIUM LABOUR CO-OPERATIVE SOCIETY LTD.T.206, KOCHUVELI, TRIVANDRUM-21.** **BY ADVS. SMT.A.K.PREETHA SMT.HEMA R. SRI.C.ANIL KUMAR** ## **RESPONDENTS:** - **1 THE KERALA CO-OPERATIVE TRIBUNAL, TRIVANDRUM 695001.** - **2 THE CO-OPERATIVE ARBITRATION COURT, TRIVANDRUM-695001.** - **3 D. VISHWANATHAN NAIR,** **RETIRED EMPLOYEE OF TITANIUM LABOUR CO-OPERATIVE SOCIETY LTD., T.206, KOCHUVELI, TRIVANDRUM, MUKKUMPURATHALA VEEDU, PEREUKAVU P.O., VILAVOORKAL, TRIVANDRUM-695006.** **BY ADVS. SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP SMT. BINDU DAS** ## **BY SMT. SHEEJA C.S. SR.GP;** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 35466 of 2018** **2** ## **JUDGMENT** The 1[st] petitioner, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the rules made thereunder, and the 2[nd] petitioner, who is the President of the 1[st] petitoner Society, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P7 order dated 13.03.2018 of the 2[nd] respondent and Ext.P9 order dated 31.08.2018 in R.P.No.58 of 2018 of the 1[st] respondent Kerala Co-operative Tribunal arising out of Ext.P7 order. The petitioners have also sought for a declaration that they are not liable to pay the benefits claimed by the 3[rd] respondent based on Ext.P1 pay revision order; that the claim made by the 3[rd] respondent is barred by principles of _res judicata;_ and that the 2[nd] respondent Co-operative Arbitration Court is not competent to adjudicate the claim made by the 3[rd] respondent in ARC No.69 of 2016, in a proceedings initiated under Section 69 of the Kerala Cooperative Societies Act. **WP(C).No. 35466 of 2018** **3** 2. On 04.01.2019, when this writ petition came up for admission, this Court issued urgent notice on admission by speed post to the 3[rd] respondent returnable by 21.01.2019. Service of notice on respondents 1 and 2 was dispensed with. 3. Heard the learned counsel for the petitioners, the learned Senior Government Pleader appearing for respondents 1 and 2, the learned counsel for the 3[rd] respondent and also Smt.D.P.Renu, the learned Amicus Curiae. 4. The issue that arises for consideration in this writ petition is as to whether the 3[rd] respondent, who retired from the service of the 1[st] petitioner Society on 31.05.2010, while working as Manager, is entitled to invoke the provisions under Section 69 of the Act, by filing ARC.No.69 of 2016 before the 2[nd] respondent Co-operative Arbitration Court, claiming pay revision arrears, on the strength of Ext.P1 Government Order dated 25.02.2011, i.e., Clause 17 of Ext.P1 Government Order. **WP(C).No. 35466 of 2018** **4** 5. The contention raised by the petitioners is that such a claim made by the 3[rd] respondent is a monetary dispute, which has to be adjudicated by the Registrar or a person authorised by the Registrar, in view of the provisions under Section sub-section (1) of Section 69 of the Act. Per contra, the learned counsel for the 3[rd] respondent would contend that it is a non-monetary dispute, which has to be adjudicated by the Co-operative Arbitration Court constituted under Section 70A of the Act, and not by the Arbitrator. 6. Section 69 of the Act deals with disputes to be decided by Co-operative Arbitration Court and Registrar. ## 7. Section 69 of the Act reads thus; _“69. Disputes to be decided by Co-operative Arbitration Court and Registrar.- (1) Notwithstanding anything contained in any law for the time being in force, if a dispute arises.-_ _(a) among members, past members and persons claiming through members, past members and deceased members; or_ - _(b) between a member, past member or person claiming through a member, a past member or deceased member_ **WP(C).No. 35466 of 2018** **5** _and the society, its committee or any officer, agent or employee of the society; or_ _(c) between the society or its committee and any past committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society; or_ _(d) between the society and any other society; or_ _(e) between a society and the members of a society affiliated to it; or_ _(f) between a society and a person, other than a member of the society, who has been granted a loan by the society or with whom the society has or had business transactions or any person claiming through such a person; or_ _(g) between the society and a surety of a member, past member, deceased member or employee or a person, other than a member, who has been granted a loan by the society, whether such a surety is or is not a member of the society; or_ _(h) between the society and a creditor of the society; such dispute shall be referred to the Co-operative Arbitration Court constituted under Sec.70A, in the case of nonmonetary disputes and to the Registrar, in the case of monetary disputes and the Arbitration Court, or the Registrar, as the case may be, shall decide such dispute and no other court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute._ _(2) For the purpose of sub-section (1), the following shall_ **WP(C).No. 35466 of 2018** **6** _also be deemed to be disputes, namely:-_ _(a) a claim by the society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;_ _(b) a claim by a surety against the principal debtor, where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor, as a result of the default of the principal debtor, whether such debt or demand is admitted or not;_ _(c) any dispute arising in connection with the election of the Board of Management or any officer of the society; Explanation:- A dispute arising at any stage of an election commencing from the convening of the general body meeting for the election shall be deemed to be a dispute arising in connection with the election;_ _(d) any dispute arising in connection with employment of officers and servants of the different classes of societies specified in sub-section (1) of Sec.80, including their promotion and inter se seniority._ _(3) No dispute arising in connection with the election of the Board of Management or an officer of the society shall be entertained by the Co-operative Arbitration Court unless it is referred to it within one month from the date of the election._ _(4) All monetary disputes mentioned in Schedule III to the Act shall be filed within the time limit specified in the said Schedule.”_ 8. As per clause (c) of sub-section (1) of Section 69, **WP(C).No. 35466 of 2018** **7** notwithstanding anything contained in any law for the time being in force, if a dispute arises between the society or its Committee and any past Committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society, such disputes shall be referred to Co-operative Arbitration Court constituted under Section 70A of the Act, in the case of non-monetary disputes and to the Registrar, in the case of monetary disputes, and the Arbitration Court or the Registrar, as the case may be, shall decide such disputes and no other court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such disputes. As per clause (b) of sub-section (2) of Section 69, for the purpose of sub-section (1), any dispute arising in connection with employment of officers and servants of the different classes of societies specified in sub-section (1) of Section 80 of the Act, including their promotion and _inter se_ seniority, shall also be deemed to **WP(C).No. 35466 of 2018** **8** be disputes. 9. A reading of the provisions under Section 69 of the Act would make it explicitly clear that after the introduction of Section 70A by the insertion of Act 11 of 2000, whereby Co-operative Arbitration Courts are constituted, the provisions under Section 69 has drawn a distinction insofar as monetary and non-monetary disputes are concerned. In case of monetary disputes, the power has to be exercised by the Registrar or the person authorised by the Registrar in that regard. However, in the case of non-monetary disputes, it has to be exercised by the Co-operative Arbitration Court constituted under Section 70A of the Act. In view of the provisions under Section 70B of the Act (which deals with non-monetary disputes pending before the Registrar and the authorities authorised by the Registrar) such disputes have to be transferred to the Co-operative Arbitration Court and decided there as if it were a dispute referred under Section 69 of the Act. The amended provisions of Act 1 of 2000 **WP(C).No. 35466 of 2018** **9** make it explicitly clear that, after the insertion of Section 70A or after the amendment made to Section 69 of the Act, in case of non-monetary dispute, the adjudicatory authority is the Co-operative Arbitration Court and not the Arbitrator. 10. In _**F.A.C.T.Service Co-operative Societies v. Balakrishna Menon K. [2007 (3) KLJ 235]**_ , a decision cited by the learned Amicus Curiae, the Division Bench has stated in categorical terms that the claim for pay revision benefits by an employee of Co-operative Society is a non-monetary dispute, which squarely falls under the jurisdiction of the Co-operative Arbitration Court, in exercise of the powers under Section 69 of the Act. In the said decision, the Division Bench was dealing with the claim made by the respondent employee for an order directing the 3rd respondent Assistant Registrar to give pay revision benefits with effect from 01.04.1999 and also consequential retirement benefits as directed in Ext.P3 proceedings. A declaration was also **WP(C).No. 35466 of 2018** **10** sought for to the effect that he is entitled to get the benefits of pay revision with effect from 01.04.1999 till his retirement on 30.11.2000 and consequential retirement benefits in accordance with law. The counsel for the respondent employee contended that the Assistant Registrar could invoke his powers under Section 66 and 66A of the Act and could issue an order like Ext.P3. Repelling that contention, the Division Bench held that the Assistant Registrar had no jurisdiction to dispose of such a representation considering it as a dispute, nor to issue a direction to pay a particular amount as salary or allowances or other service benefits to an employee of a society. Such orders could be issued only by an authority under Section 69 of the Act. Paragraph 9 of the Division Bench decision reads thus; _“9) A specific provision, namely Section 69, is made in the Act for resolving disputes between a society and its employees. Section 69 of the Act and also excludes jurisdiction of any court or authority to deal with a dispute as is referred to in that section. The powers of superintendence under Section 66 or the power to_ **WP(C).No. 35466 of 2018** **11** _issue general directions and guidelines under Section 66A do not override Section 69. The scope of Section 69 on the one hand and that of Sections 66 and 66A on the other, are distinct and different. A dispute which is to be resolved under Section 69 of the Act cannot be the subject matter of the exercise of jurisdiction under Sections 66 and 66A. Section 69 excludes the jurisdiction of court or other authority in respect of the disputes coming within the purview of the section. Such 'other authority' referred to in Section 69 would take in the authority empowered to exercise jurisdiction under Section 66 or Section 66A of the Act. We are of the view that the remedy of the writ petitioner was not to move the Assistant Registrar by a representation, but to raise a dispute under Section 69 of the Act. The Assistant Registrar had no jurisdiction to dispose of such a representation considering it as a dispute, nor to issue a direction to pay a particular amount as salary or allowances or other service benefits to an employee of a society. Such orders could be issued only by an authority under Section 69 of the Act.”_ 11. Placing reliance on the judgment of a learned Single Judge of this Court in _**Kasaragod Co-operative Town Bank Ltd. v. Kerala Co-operative Tribunal and others**_ in _**W.P.(C).No.16740 of 2013 dated 18.11.2014**_ , the learned counsel for the petitioner would **WP(C).No. 35466 of 2018** **12** contend that the claim made by the petitioner towards monetary benefits on account of pay revision arrears is a monetary dispute, which has to be adjudicated by the Arbitrator and not by the Co-operative Arbitration Court. 12. A reading of paragraph 3 of the said judgment would show that the said decision in no manner supports the aforesaid contention raised by the learned counsel for the petitioner. Paragraph 3 of the judgment reads thus; _“3. Clause (h) of section 69(1) distinguishes the disputes into monetary and non-monetary disputes. With respect to monetary disputes, the jurisdiction is conferred on the Registrar and with respect to nonmonetary disputes on the Arbitration Court. Clause (d) of section 69(2) speaks of disputes arising in connection with the employment of officers and servants of the different classes of societies including their promotion and inter se seniority. The dispute is one of denial of pay revision which definitely arises in connection with the employment of officers and servants of the society. Going by the binding_ _**-** precedent reported in_ _**F.A.C.T.Service Co operative Societies v. Balakrishna Menon K.** [2007 (3) KLJ 235] it cannot be found otherwise.”_ 13. The learned Amicus Curiae would point out that **WP(C).No. 35466 of 2018** **13** the petitioners have filed R.P.No.58 of 2018 before the Cooperative Tribunal, wherein the subject of the dispute is mentioned as non-monetary/service dispute. Having filed such a revision, they cannot now turn around and contend that the dispute raised by the 3[rd] respondent is a monetary dispute. 14. Having considered the submissions made by the learned counsel on both sides and also the learned Amicus Curiae, this Court finds that the dispute raised by the 3[rd] respondent is a non-monetary dispute, i.e., service dispute, which has to be referred to a Co-operative Arbitration Court. Therefore, the 2[nd] respondent Cooperative Arbitration Court, rightly entertained the said dispute. The finding of the Co-operative Arbitration Court and also the Kerala Co-operative Tribunal in Exts.P7 and P9 orders as to maintainability of the dispute referred by the 3[rd] respondent warrants no interference in this writ petition invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. **WP(C).No. 35466 of 2018** **14** In the result, the writ petition fails and the same is, accordingly, dismissed. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/25/2 **WP(C).No. 35466 of 2018** **15** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE GOVERNMENT ORDER G.O(P) NO.36/11/CO.OP DATED 25.2.2011** - **EXHIBIT P2** - **TRUE COPY OF THE APPLICATION FOR EXEMPTION SUBMITTED BY THE PETITIONER TO THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES DATED 22.10.2013** - **EXHIBIT P3 TRUE COPY OF THE COMPLAINT FILED BY THE 3RD RESPONDENT BEFORE THE KERALA CO-OPERATIVE OMBUDSMAN AS COM. NO.1007/2015** - **EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY THE KERALA CO-OPERATIVE OMBUDSMAN, THIRUVANANTHAPURAM IN COM. NO.1007/2015 DATED 25.1.2016** - **EXHIBIT P5 TRUE COPY OF THE ARBITRATION PETITION NO.69/2016** - **EXHIBIT P6 TRUE COPY OF THE INTERLOCUTORY APPLICATION I.A.52/2017 IN ARC NO.69/2016 FILED BY THE PETITIONER** - **EXHIBIT P7 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 13.3.2018** - **EXHIBIT P8 TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT AS R.P.58/2018** - **EXHIBIT P9** - **TRUE COPY OF THE ORDER DATED 31.8.2018 IN REVISION PETITION 58/2018**