VELAYUDHAN.M. v. Joint Registrar of Co-operative Societies (General), Kannur and Chuzhali Service Co-operative Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 22ND DAY OF OCTOBER 2020 / 30TH ASWINA, 1942** ## **WP(C).No.25007 OF 2013(A)** ## **PETITIONER :** **VELAYUDHAN.M., S/O.GOVINDAN, BILL COLLECTOR, CHUZHALI SERVICE CO-OPERATIVE BANK LTD. LL 134, CHUZHALI POST, TALIPARAMBA - 670 141, KANNUR DISTRICT.** **BY ADVS. SRI.S.SHYAMKUMAR FOR ADV.M.SASINDRAN SRI.V.VENUGOPAL** ## **RESPONDENTS :** **1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANNUR - 670 002. 2 CHUZHALI SERVICE CO-OPERATIVE BANK LTD.LL 134, CHUZHALI POST, TALIPARAMBA - 670 141, KANNUR DISTRICT, REPRESENTED BY ITS SECRETARY. * ADDL.R3 IMPLEADED * ADDL.R3 K.C.VIJAYAN, S/O.CHAKRAPANI, AGED 55 YEARS, PUTHENTHARTA HOUSE, CHUZHALI P.O., VIA KARIMBAM, KANNUR DISTRICT, PIN – 670 142** **ADDL.R3 IS IMPLEADED AS PER ORDER DATED 04.11.2013 IN I.A.NO.14417/2013** **R2 BY ADV. ABHILASH FOR ADV.M.A.ASIF R2 BY ADV. SRI.T.A.SHAJI SR. R3 BY ADV.MINI V.A.FOR ADV.C.P.PEETHAMBARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.25007 OF 2013(A)** 2 ## **JUDGMENT** Dated this the 22[nd] day of October 2020 Challenge in this original petition is against Ext.P10 order issued by the Joint Registrar of the Co-operative Societies, Kannur. As per the impugned order, the Joint Registrar found the appointment of the petitioner to the post of Peon in the Chuzhali Service Co-operative Bank along with another person as illegal and directed them to be terminated and also to recover all emoluments received by them on that account. 2. The learned Counsel Sri.M.Sasindran on behalf of the petitioner contends that the termination after '32 years of service' in different posts has been done without even a notice to the petitioner and in violation of all canons of law. Petitioner alleges that he was appointed initially as a salesman in 1981 and thereafter by Ext.P1, he was appointed as the manager of a ration shop run by the society and due to circumstances that arose in the interregnum, he was shifted to the post of daily **WP(C).No.25007 OF 2013(A)** 3 deposit collector in which post he continued till 1998. The petitioner further points out that though by a resolution dated 27.11.1998, he was appointed as a peon, later, by an order of this Court directing reinstatement of two peons, petitioner and one Sri.Narayanan had to go out of service. In the meantime, by Ext.P5 resolution dated 08.08.2007, the 2[nd] respondent Bank resolved to request for creation of two posts of peon for the purpose of accommodating the petitioner and another Sri.Narayanan. On the basis of the said resolution, and consequent request, 1[st] respondent by Ext.P8 granted approval for creation of two new posts of peon taking note of the existence of two additional branches for the Bank. Pursuant to the creation of two new posts of peon in the 2[nd] respondent, by Ext.P9 resolution dated 28.09.2007, it was resolved to appoint the petitioner and Sri.Narayanan to the newly created posts of peon and permitted them to continue as employees in the newly created posts. 3. Five years after appointment of the petitioner, the 3[rd] respondent preferred a complaint against the appointment, which was enquired into and thereafter, Ext.P10 order was issued **WP(C).No.25007 OF 2013(A)** 4 finding that the appointment of the petitioner and Sri.Narayanan was illegal and ordered immediate termination of their services. 4. The learned counsel for the petitioner Sri.M.Sasindran vehemently contends that Ext.P10 order is totally illegal and without any basis for more reasons than one. He submitted that violation of the principles of natural justice was glaring in the order impugned and on that ground alone, Ext.P10 was liable to be set aside. Relying upon the decision reported in **Elampal Service Cooperative Bank Ltd.v. Government of Kerala [2000 (3) KLT 389]** it was canvassed that no approval of Registrar was necessary for appointing the staff as per the staff pattern fixed and in that view of the matter, Ext.P9 was validly resolved by the Bank which could not have been interfered with by the Joint Registrar. The learned counsel also referred to the decision in **Sunikuttan and Others v. Ernakulam District Co-op.Bank Ltd.and Others [2016 (1) KLT 448]** and submitted that when the Registrar of the Co-operative Societies cannot direct regularisation of an employee as laid down in the said decision, the corollary was that Registrar cannot interfere with the regularisation of appointment carried out by a **WP(C).No.25007 OF 2013(A)** 5 management. 5. I have heard the learned Government Pleader Sri.Unnikrishna Kaimal for the 1[st] respondent, as well as Adv.Abhilash and Adv.M.A.Asif for the 2[nd] respondent and Adv.Mini V.A.and Adv.C.P.Peethambaran for the 3[rd] respondent. 6. Relying upon the counter affidavit filed by the first respondent as well as the 3[rd] respondent, Adv.Mini V.A.argues that appointment of the petitioner was on extraneous considerations and the same is glaring from the fact that, in spite of the order of this Court, petitioner and the said Narayanan continued without being terminated from the Bank. The said action, according to the learned counsel was ex facie illegal. 7. On the other hand, the learned counsel for the Bank submits that even though the Bank was heard before Ext.P10 was passed, it was imperative that petitioner also ought to have been heard because the order invariably affects the rights of the petitioner. It is also submitted that the decision taken by the Bank to appoint petitioner was done after taking into reckoning all the surrounding facts and circumstances and also the hardship **WP(C).No.25007 OF 2013(A)** 6 that would befall the petitioner, if he was not accommodated into the post along with regularisation of past services. 8. I have considered the rival contentions. In the year 1995, 2[nd] respondent Bank conducted a selection process and published a rank list for appointment to the post of peon. Petitioner and one Sri.Narayanan filed O.P.No.19796/1995 and obtained a stay initially. Later the stay order was vacated as can be understood from Ext.R3(b) order. In Ext.R3(b) order in O.P.No.19796/1995, it was prima facie found that the petitioners therein (Sri.Velayudhan and Sri.Narayanan) were neither casual nor temporary employees and had no right to be considered for regularisation or promotion. Appeal against the aforesaid order was dismissed, with the rider that the observation regarding nature of appointment may not have persuasive effect at the final stage. 9. Thereafter, the Bank proceeded to appoint two persons as peons from the select list, but later, they resigned. Pursuant to the resignation, Bank appointed two others by a resolution dated 29.11.1996. However, the Joint Registrar set **WP(C).No.25007 OF 2013(A)** 7 aside that resolution which finally resulted in Ext.R3(f) judgment in W.A.No.2006/2002 and connected cases. It was found that rescinding the resolution dated 29.11.1996 was palpably wrong and accordingly set aside the order of Joint Registrar. 10. While the above said proceedings were pending, Bank appointed the two earlier referred commission agents (petitioner and Narayanan) as peons. However, when even after the judgment in Ext.R3(f), Bank did not terminate the services of petitioner and Sri.Narayanan, Ext.P4 order dated 06.05.2006 was issued by the 1[st] respondent directing immediate termination of petitioner and Sri.Narayanan. 11. The events that transpired thereafter will reveal that, the Bank, apparently in an attempt to continue the services of the petitioner and Sri.Narayanan, resolved by Ext.P5 to request creation of two additional posts of peon. By Ext.P8, the Joint Registrar approved the creation of two additional posts of peon in the 2[nd] respondent Bank and also approved the staff strength as including the two new posts. 12. Admittedly two additional posts of peon in the 2[nd] **WP(C).No.25007 OF 2013(A)** 8 respondent Bank was created only pursuant to Ext.P5 resolution and after approval was obtained by Ext.P8 order. Prior to that the petitioner could not have claimed appointment to the post of peon. Since additional posts of peons have been created, as mentioned above, by virtue of Ext.P8, the contention of the petitioner that the society had the power to make appointments to the two posts of peons with effect from 27.09.2007 has to be accepted. Of course, the appointments made by the society ought to be legal and in accordance with the laws in force. At the time the petitioner was appointed by resolution dated 28.09.2007, no complaint was raised by any person including the 3[rd] respondent against the appointment or the resolution. For five years and more, the petitioner's appointment as a peon to the post created under Ext.P8 remained unquestioned. As held in **2000 (3) KLT 389** (supra), the society is empowered to appoint sufficient staff depending upon the workload. The only requirement is that the appointment should be carried out to the posts that have been approved by the Registrar. Once such posts are approved, the society is entitled to appoint the staff in a legal manner. Neither in the complaint nor in Ext.P10, is it **WP(C).No.25007 OF 2013(A)** 9 evident as to what is the reason for the delayed complaint against the appointment carried out by the society. In such circumstances, taking into reckoning the fact that the society had resolved, by Ext.P5, to increase the strength by two more posts of peon and made a resolution pursuant to which the Registrar approved creation of the said posts, I find it too late in the day for the first respondent to interfere with the order of appointment of the petitioner as a peon with effect from 28.09.2007. 13. It is necessary in this context to bear in mind that after the 97[th] amendment, the concept of autonomy of a society has been brought in. Of course at the time of appointment of the petitioner, the said amendment was not in force. However, the nature of interference by the Registrar or his officers must be very minimal. When approval for creation of two posts was granted and consequent appointments were made based on resolutions passed, the highly belated complaint cannot and ought not, upset the appointment of the petitioner to the post of peon in the peculiar facts of this case. 14. The matter does not end there. It is seen from **WP(C).No.25007 OF 2013(A)** 10 Ext.P9 resolution that the petitioner's appointment was in the form of a regularisation of the past services also. Petitioner claims that he was appointed with effect from 1981 originally and hence his regularisation of appointment ought to be with effect from 1981 onwards. I have already found that his appointment with effect from 28.09.2007 need not be interfered with. The appointment order though mentions the appointment as a fresh appointment, it subtly indicates the service as a continuing one. Petitioner's appointment by Ext.P9 cannot be a continuation of his earlier service. Regularisation of his past service depends on the nature of service prior to his appointment. It is seen from Ext.R3(b) that petitioner was not a casual or a temporary employee prior to 2007. He was appointed in violation of law and court of law declared him as not entitled to be appointed. There was no post of peon that was unfilled to which petitioner could have been appointed. Ext.R3(f) is also relevant in this context. From 1998 til 2007 petitioner's continuation as peon was without basis and authority. Thus petitioner is not entitled to regularisation of any services prior to 28.09.2007. **WP(C).No.25007 OF 2013(A)** 11 In the result, Ext.P10 is set aside as relating to the petitioner. It is re-stated that petitioner is not entitled to regularisation of his services prior to 28.09.2007. The original petition is disposed of. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **WP(C).No.25007 OF 2013(A)** 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **EXHIBIT P1. A TRUE COPY OF THE MINUTES OF THE COMMITTEE DATED 20.10.1981.** - **EXHIBIT P2 EXHIBIT P2. A TRUE COPY OF THE RESOLUTION DATED 30.11.1982 OF THE SOCIETY.** - **EXHIBIT P3 EXHIBIT P3. A TRUE COPY OF THE RESOLUTION DATED 27.11.1998 APPOINTING THE PETITIONER TO THE POST OF PEON IN THE SCALE 890-1390.** - **EXHIBIT P4 EXHIBIT P4. A TRUE COPY OF THE ORDER NO.2915/06/AEL DATED 06.05.2006.** - **EXHIBIT P5 EXHIBIT P5. A TRUE COPY OF THE RESOLUTION DATED 08.08.2007 OF THE SOCIETY.** - **EXHIBIT P6 EXHIBIT P6. A TRUE COPY OF THE REQUEST MADE BY THE SOCIETY TO THE JOINT REGISTRAR DATED 31.08.2007.** - **EXHIBIT P7 EXHIBIT P7. A TRUE COPY OF THE DETAILS OF THE EMPLOYEES AS ON 31.07.2007 SUBMITTED ALONG WITH P5 AND EXHIBIT P6.** - **EXHIBIT P8 EXHIBIT P8. A TRUE COPY OF THE ORDER DATED 27.09.2007 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P9 EXHIBIT P9. A TRUE COPY OF THE RESOLUTION DATED 29.09.2007 OF THE SOCIETY.** - **EXHIBIT P10 EXHIBIT P10. A TRUE COPY OF THE ORDER NO.6644/12/CRP DATED 12.08.2013.**