T.N. Ambika v. Kottappady Service Co-operative Bank Ltd. and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 14TH DAY OF AUGUST 2018 / 23RD SRAVANA, 1940** **W.A.No. 1969 of 2014 IN WP(C)NO. 16769/2012** **AGAINST THE JUDGMENT IN WP(C).NO.16769/2012 OF HIGH COURT OF KERALA DATED 12.11.2014** ## **APPELLANT/2ND RESPONDENT:** **T.N.AMBIKA, D/O.SUKUMARAN,PLACHERY HOUSE,VENGOOR VILLAGE,NEDUNGAPRA KARA,KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN 683 578.** **BY ADV. SRI. N. SUKUMARAN (SR.) ADV.SRI. N.K.KARNIS** ## **RESPONDENTS/PETITIONERS 1 AND 2 AND RESPONDENTS 1, 3 AND 4:** - **1 THE KOTTAPPADY SERVICE CO-OP. BANK LTD.NO.E.155, P.O KOTTAPPADY(VIA) KOTHAMANGALAM,ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY - 686 692.** **2 THE BOARD OF DIRECTORS, THE KOTTAPPADY SERVICE COOPERATIVE BAND LTD NO E 155,P.O KOTTAPPADY,VIA KOTHAMANGALAM, ERNAKULAM DISTRICT, REPRESENTED BY ITS PRESIDENT – 686 692.** - **3 KERALA CO-OPERATIVE TRIBUNAL, VANROSE JUNCTION, THIRUVANANTHAPURAM - 695 034.** - **4 PRESIDING OFFICER/ARBITRATOR, KERALA STATE COOPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM - 695 001.** WA1969/2014 2 **5 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL), ERNAKULAM,KOCHI 16, PIN 682 016.** R1 & R2 BY ADV.SRI.N.K.SUBRAMANIAN. R5 BY SENIOR GOVT.PLEADER SMT.K.R.DEEPA. **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06.08.2018, THE COURT ON 14.08.2018 DELIVERED THE FOLLOWING:** “CR” ## Judgment ## Chitambaresh, J. - 1.Can the Co-operative Arbitration Court constituted under the Kerala Co-operative Societies Act, 1969 force an employer society to retain the services of an employee whom it no longer wishes to employ? 2.The dismissal from service of the appellant for charges of misappropriation, forgery, misconduct etc. was set aside by Ext.P12 award of the Co-operative Arbitration Court ('the Court' for short). The appellant was directed to be reinstated in the service of the first respondent Co-operative Bank which was affirmed by Ext.P15 WA1969/2014 **==> picture [6 x 9] intentionally omitted <==** judgment of the Co-operative Tribunal ('the Tribunal' for short). But the direction to reinstate the appellant in service was set aside in the writ petition filed by the Co-operative Bank even after finding that the charges were not proved. The case was remitted to the Tribunal solely to fix the compensation payable in lieu of reinstatement of the appellant in service which has given rise to this writ appeal. 3.We heard Mr N.Sukumaran, Senior Advocate on behalf of the appellant, Mr N.K.Subramanian, Advocate on behalf of the first respondent and Mrs.K.R.Deepa, Senior Government Pleader at length. 4.The appellant relied on the following observations of Mr Justice P.N. Ravindran in Cheranallur Service Co-operative Bank Ltd. v. State of Kerala and others [2012 (3) KHC 834] as regards the jurisdiction to WA1969/2014 4 order reinstatement: “If the Labour Court or the Industrial Tribunal constituted under the Industrial Disputes Act can order reinstatement in service of a workman who is governed by the Industrial - Disputes Act, I find nothing wrong in the Co operative Arbitration Court directing reinstatement in service. That apart, under Section 100 of the Act, the jurisdiction of a civil or Revenue Court is barred only in respect of any matter for which any provision is made in the Act. Section 69 of the Act makes a provision for adjudication of disputes in connection with employment of officers and servants of the different classes of co-operative societies, which as held by this Court could take in disputes arising under disciplinary proceedings also. Therefore, merely because Section 100 bars the jurisdiction of a civil court in respect of matters for which provision has been made in the Act, it cannot be said that the Co-operative Arbitration Court could not have entertained the dispute. In the absence of a challenge by the petitioner to the constitutional validity of Sub-section (2) of Section 69 of WA1969/2014 5 - the Act, the contention that the Co operative Arbitration Court cannot order reinstatement, is liable to be rejected.” (emphasis supplied) The contention in short of the appellant is that a remand of the case to the Tribunal to fix compensation is unwarranted especially when the findings in Ext.P12 award and Ext.P15 judgment as regards the delinquency stand affirmed. 5.A Division Bench of this Court in Kaloor Vadakkummury Service Cooperative Society Ltd. v. Assistant Registrar, Mukundapuram and others [1973 KLT 523] had occasion to observe in this regard as follows: “For the same reasoning, the powers of the Labour Court, the 2[nd] respondent, functioning under the Industrial Disputes Act, 1947, are unaffected by the powers of the Registrar under Section 69 of the Act. The dispute that WA1969/2014 6 was resolved by the 2[nd] respondent by passing Ext.P5 award could not have been dealt with by the Registrar. He was not competent to deal with that question. He could not grant the relief of reinstatement which has been granted by the 2[nd] respondent.” (emphasis supplied) Again it was held in Sankaran v. Deputy Registrar of Co-operative Societies [1975 KLT 861] that 'the Court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ'. Still later another Division Bench of this Court in Trivandrum Co-operative Urban Bank Ltd. v. Joint Registrar of Cooperative Societies [2001(1) KLT 99] held as follows: “The jurisdiction of the Registrar under Section 69 of the Act is co-terminus with that of the civil court. The general rule is that a civil court will not specifically enforce a contract of a personal service.” (emphasis supplied) 6.The issue is now set at rest by the decision in Maharashtra State Co- WA1969/2014 7 operative Housing Finance Corporation Ltd. v. Prabhakar Sitaram Bhandange [(2017) 5 SCC 623] wherein it is held as follows: “9. We may also clarify one more aspect. Contract of personal services is not enforceable under the common law. Section 14 read with Section 41(e) of the Specific Relief Act, 1963 specifically bars the enforcement of such a contract. It is for this reason the principle of law which is well established is that the civil court does not have the jurisdiction to grant relief of reinstatement as giving of such relief would amount to enforcing the contract of personal services. However, as laid down in the cases referred to above, and also in Vaish Degree College v. Lakshmi Narain, there are three exceptions to the aforesaid rule where the contract of personal services can be enforced: “(a) In the case of a public servant who has been dismissed from service in contravention of Article 311 of the Constitution of India; (b) In the case of an employee who could be reinstated in an industrial adjudication by the Labour WA1969/2014 8 ## Court or an Industrial Tribunal; and (c) In the case of a statutory body, its employee could be reinstated when it has acted in breach of the mandatory obligations imposed by the statute.” 10. Even when the employees falling under any of the aforesaid three categories raise dispute qua their termination, the civil court is not empowered to grant reinstatement and the remedy would be, in the first two categories, by way of writ petition under Article 226 of the Constitution or the Administrative Tribunal Act, as the case may be, and in the third category, it would be under the Industrial Disputes Act. An employee who does not fall in any of the aforesaid exceptions cannot claim reinstatement. His only remedy is to file a suit in the civil court seeking declaration that termination was wrongful and claim damages for such wrongful termination of services. Admittedly, the appellant Corporation is not “State” under Article 12 of the Constitution. The respondent also cannot be treated as a government/public servant as he was not under the WA1969/2014 9 employment of any Government. He was also not “workman” under the Industrial Disputes Act as he was working as Manager with the appellant Corporation.” (emphasis supplied) None of the above conditions exists in the case on hand since the appellant is neither a public servant nor an employee involved in an industrial adjudication or the employer Co-operative Bank a statutory body. 7.The Registrar whose jurisdiction is co-terminus with that of the civil court cannot specifically enforce a contract of personal service which is barred under Section 14 read with Section 41(e) of the Specific Relief Act, 1963. It goes without saying that reinstatement in service amounts to specifically enforcing a contract of personal service which cannot be granted by the Court. Section 11A of the Industrial Disputes Act, 1947 on the other hand empowers the WA1969/2014 10 Labour Court to 'direct reinstatement of the workman on such terms and conditions' as it thinks fit. Such a power is wholly absent for the Court and the following observation in Maharashtra State Cooperative Housing Finance Corporation Ltd.'s case (supra) is apposite: “Ultimately, the outcome depends upon the powers that are given to the Co-operative Court or the stipulated tribunal created under such Acts.” No power is given to the Court constituted under the Kerala Cooperative Societies Act, 1969 to direct reinstatement in service of a delinquent as can be found in Section 11A of the Industrial Disputes Act, 1947. But a delinquent who is a 'workman' as defined in the Industrial Disputes Act, 1947 has the option to move the Labour Court even if he is an employee of the Co-operative Bank. It is the choice of the employee concerned to choose any one forum out of WA1969/2014 11 the two forums as held in Annamma K.A. v. Secretary, Cochin Co- operative Hospital Society Ltd. [ILR 2018(1) Ker. 225(SC)]. The Labour Court/Industrial Tribunal can order reinstatement in service on such terms and conditions as it thinks fit whereas the Court can only award damages for wrongful termination of services. The learned singe Judge was perfectly justified in remitting the case to the Tribunal to decide the compensation payable in lieu of reinstatement of the appellant in service. The decision in Cheranallur Service Co-operative Bank Ltd.'s case (supra) to the extent it holds that the Court can direct reinstatement in service of the delinquent is hereby overruled. The writ appeal is dismissed. No costs. - V. CHITAMBARESH, JUDGE SATHISH NINAN, JUDGE Sha/080818