Vivekandan and others v. Kerala Co-operative Milk Marketing Federation Ltd and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 19TH DAY OF SEPTEMBER 2016/28TH BHADRA, 19382016** **WP(C).No. 26763 of 2015 (U) ----------------------------** **PETITIONERS:** **-----------** ## **1. VIVEKANDAN** **AGED 51 YEARS, LAB ASSISTANT, MALABAR REGIONAL COOPERATIVE MILK PRODUCERS UNION LTD, DAIRY PALAKKAD.** **2. JAYPRAKASH V., S/O.VASU** - **AGED 49 YEARS, LAB ASSISTANT, MALABAR REGIONAL COOPERATIVE MILK PRODUCERS UNION LTD, DAIRY PALAKKAD.** **3. KANNAN K., S/O.KRISHNAN** - **AGED 45 YEARS, MARKETING ASSISTANT, MALABAR REGIONAL COOPERATIVE MILK PRODUCERS UNION LTD, DAIRY PALAKKAD.** **4. MURUKAN K., S/O.KARUPPAN** - **AGED 42 YEARS, MARKETING ASSISTANT, MALABAR REGIONAL COOPERATIVE MILK PRODUCERS UNION LTD, DAIRY PALAKKAD.** **BY ADV. SRI.T.V.GEORGE** **RESPONDENTS:** - **------------** **1. KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD. REPRESENTED BY ITS MANAGING DIRECTOR, ARKANILAYAM, VAZHUTHAKKAD, TRIVANDRUM -14.** **2. MALABAR REGIONAL COOPERATIVE MILK PRODUCERS UNION LTD KOZHIKODE, REPRESENTED BY ITS MANAGING DIRECTOR, PERINGOLAM, KUNNAMANGALAM PO, KOZHIKODE -673 571** **3. CHAIRMAN** - **MALABAR REGIONAL COOPERATIVE MILK PRODUCERS UNION LTD KOZHIKODE, KUNNAMANGALAM PO 673 571.** **4. DAIRY MANAGER MALABAR REGIONAL CO-OPERATIVE MILK PRODUCERS UNION, PALAKKAD DAIRY, PALAKKAD.** **5. REGISTRAR OF COOPERATIVE SOCIETIES THYCAUD, TRIVANDRUM -1.** **R2 BY ADV. SRI.K.ANAND (SR.) R2 BY ADV. SMT.LATHA ANAND BY SMT.LATHA KRISHNAN BY GOVERNMENT PLEADER:SRI.JACOB PALATTY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-09-2016, ALONG WITH WPC. 25177/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 26763 of 2015 (U) ----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **----------------------P1 - TRUE COPY OF THE PROMOTION ORDER DTD. 27.09.08 P2 - TRUE COPY OF THE PROMOTION ORDER DTD. 07/01/09 P3 - TRUE COPY OF THE PROMOTION ORDER DTD. 12.01.11** **P4 - TRUE COPY OF THE PROMOTION ORDER DTD.09.11.11** **P5 -TRUE COPY OF THE PROMOTION ORDER DTD. 25.08.11** **P6 - TRUE COPY OF THE PROMOTION ORDER DTD. 25.08.11 P7 - TRUE COPY OF THE STANDING ORDER.** **P8 - TRUE COPY OF THE REQUEST LETTER SUBMITTED BY THE 3RD AND THE 4TH PETITIONER DTD. 24.01.14** **P9 - TRUE COPY OF THE REPLY DTD. 28.10.14 OF THE MANAGING DIRECTOR OF THE 2ND RESPONDENT SOCIETY.** **P10 - TRUE COPY OF THE PAY FIXATION STATEMENT OF ONE NAZAR** **P11 - TRUE COPY OF THE PAY REVISION ORDER DTD. 11.09.13** **RESPONDENT(S)' EXHIBITS:NIL -----------------------** **//TRUE COPY//** **PA TO JUDGE** **rsr** ## **ALEXANDER THOMAS, J.** -------------------------------------------------W.P.(C) Nos.26763 & 25177 of 2015 -------------------------------------------------Dated this the 19[th] day of September, 2016 ## **JUDGMENT** The petitioners herein are the employees of the 2[nd] respondent Malabar Regional Cooperative Milk Producers Union Ltd, which is affiliated to the 1[st] respondent Kerala Cooperative Milk Marketing Federation Ltd as the Apex body envisaged in terms of the provisions contained in the Kerala Cooperative Societies Act and Rules framed thereunder. 2. The facts in relation to W.P(C).No.26763 of 2015 are as follows: The petitioners 1 and 2 were working as Lab Assistants and petitioners 3 and 4 were working as Marketing Assistants in Palakkad Milk Dairy under the 2[nd] respondent. The petitioners have originally joined service as Sweeper cum Scavenger and while continuing so, they were said to have been promoted and appointed as Plant Attender Grade II and later by Ext.P1 order, petitioners 1 to 3 were promoted as Plant Attender Grade I while the 4[th] petitioner was so promoted as per Ext.P2 order. Later by Exts.P3 and P4 orders, petitioners 1 and 2 were said to have been promoted and appointed as Lab Assistants and petitioners 3 and 2 **W.P.(C) Nos.26763 & 25177 of 2015** 4 were said to have been promoted and appointed as Marketing Assistants by Exts.P5 and P6 orders in the scale of pay of Rs.5565-10,040/-. It is averred that in view of Exts.P3 and P6 orders, petitioners 1 to 4 had joined duty in the new post and thus continuing. So it is case that their selection, promotion and scales of pay and other service conditions are regulated by Ext.P7 promotion policy issued by the 1[st] respondent Apex Body. According to them, even though a scale of pay is assigned for the post of Lab Assistants and Marketing Assistants as per Ext.P7 promotion policy, the 2[nd] respondent is denying the benefit of scale of pay to the petitioner herein without any valid reasons etc. It is in the light of these aspects that the petitioner had filed the instant writ petition seeking the following prayers: i) call for the entire records relating to the above case; ii) issue a writ of mandamus commanding the respondents 2 to 4 to pay the entire full revised salary of Lab Assistants to petitioners 1 and 2 and Marketing Assistant to the 3[rd] and 4[th] petitioner, as provided in Ext.P7 standing order and Ext.P11 Pay Revision order. iii) issue a writ of mandamus commanding the respondents 2 to 4 to pay the salary arrears (amount denied so far) due to the petitioners in the revised scale of pay of Lab Assistants to the petitioners 1 and 2 and Marketing Assistants to the 3[rd] and 4[th] petitioner, from their date of joining in the respective posts of Lab Assistants and Marketing Assistants under the 2[nd] respondent, by re-fixing the scale of pay in terms of Ext.P7 standing order and respective pay revision orders. 3 **W.P.(C) Nos.26763 & 25177 of 2015** iv. Grant such other and further reliefs, which this Hon'ble Court feels just and proper to grant in the circumstances of the case, including the entire costs of the proceedings. 3. The facts in W.P.(C) No.25177/2015 are also broadly similar to the one in the former W.P.(C) and similar reliefs are sought in that writ petition. 4. The request made by the petitioners in W.P(C). No.26763/2015, as per Ext.P8 has been rejected as per Ext.P9 proceedings dated 28/10/2014. The rejection order is not seen challenged in this writ petition. 5. The essential ground taken up by the respondents is that the appointments in question given to the petitioners to the post of Lab Assistants and Marketing Assistants are not by way of promotion as envisaged in Clause 9 of Ext.P7 promotion policy but is only an internal selection as can be seen from the Appendix of Ext.P7 and that therefore the petitioners are not eligible for the benefit as envisaged in Clause 9 of Ext.P7. Secondly, it is also contented that Ext.P7 promotion policy is not statutory in nature as it has not been framed by virtue of the enabling provisions contained in any statutory rule framed under the Kerala Cooperative Services Act but has been framed by the 1[st] respondent Apex Body in exercise of its non-statutory powers 4 **W.P.(C) Nos.26763 & 25177 of 2015** and that therefore a writ petition under Article 226 of the Constitution of India will not lie in view of the legal principles laid down by the Larger Bench of this Court in the case Association of Milma Officers v. State of Kerala [2015 (1) KLT 849 (L.B)] paragraphs 16, 17 etc and that the remedy of the petitioners is only to approach the Cooperative Arbitration Court constituted under Section 70A of the Kerala Cooperative Societies Act in view of the mandatory provisions contained in Section 69 of the said Act. 6. Heard Sri.T.V.George, learned counsel appearing for the petitioners in these writ petitions and Sri.K.Anand, learned Senior counsel instructed by Sri.Joseph Sebastine, learned counsel appearing for respondents 1 to 4 and the learned Government Pleader appearing for the 5[th] respondent. 7. The benefits that are essentially claimed by the petitioners are one that flows out of Ext.P7 which is styled as the amended promotion policy of employees framed by the 1[st] respondent under its standing orders. Clause 3 (1) of Ext.P6 defines “Promotion” to mean movement of an employee within the organizational scale to a position of higher responsibility, status and emoluments consistent with the requirements of the 5 **W.P.(C) Nos.26763 & 25177 of 2015** organization and suitability of the employee.” ## 8. Clause 9 of Ext.P6 reads as follows: ## PAY ADJUSTMENT ON PROMOTION An employee on promotion will be granted one annual increment in his scale of pay before promotion, and his pay in the promoted scale will be fixed in the next stage. 9. Even though the petitioners have averred that their appointments to the post of Lab Assistants and Marketing Assistants are by way of promotion, a mere perusal of the orders so appointing them would disclose that it is by way of internal selection. Appendix 2 of Ext.P7 Promotion Policy / Standing Orders deals with various categories of post and method of appointments in the various wings/ organizations under the respondents. A perusal of the said appendix of Ext.P7 would show that various wings / organizations are Production, Dairy, Administration, Marketing Wing, Quality Control Wing etc. The post of Marketing Assistant is shown as SL.No.5 under the Marketing Wing and the post of Lab Assistant is shown as SL.No.4 under the Quality Control Wing. A Perusal of the appendix would show that the method of appointment for many of the posts by way of career advancement is by way of promotion and method of appointment for the said posts are by way of direct recruitment and for the posts of Marketing Assistant and Lab 6 **W.P.(C) Nos.26763 & 25177 of 2015** Assistant, the method of appointment is shown as internal selection / direct recruitment and for internal selection to the post of Marketing Assistant, the criteria shown therein is pass in SSLC and 5 years experience as Plant Attender / Vehicle cleaner / Cleaner. The criteria for internal selection to the post of Lab Assistant is pass in SSLC and 5 years experience as Plant Attender / Vehicle Cleaner /Cleaner. Therefore it is contented by respondents 1 and 2 that the method of appointment on the basis of which petitioners have been appointed to the post of Marketing Assistant and Lab Assistant is by way of internal selection from amongst various eligible categories belonging to various wings / organizations of the respondent No.2 and that it is not promotion as envisaged in Rule 3 (1) of Ext.P7. 10. Per contra Sri.T.V.George, learned counsel for the petitioner would submit that the said contention of the respondents 1 and 2 are incorrect and untenable and that the benefit of Clause 9 of Ext.P7 has been given to similarly situated employees in Ernakulam regional Society and Thiruvananthapuram Regional Society as evident from Exts.P10 and P-12 produced in W.P.9C0.26763 of 2015. 7 **W.P.(C) Nos.26763 & 25177 of 2015** 11. In the view that this Court is proposing to take, it is not necessary for this Court to adjudicate on the correctness or otherwise of the rival claims etc. It is beyond doubt that Ext.P7 Promotion Policy /Standing Orders are not statutory in nature inasmuch as it is not seen framed by virtue of any enabling provisions contained in the Kerala Cooperative Societies Act and Rules framed thereunder. 12. The 1[st] respondent Apex Body in this case is also known by the name Milma and the Larger Bench of this case had occasion to consider whether a writ petition under Article 226 of the Constitution of India would lie as against the 1[st] respondent Apex Body, Milma in the ruling in Association of Milma Officers v State of Kerala [2015 (1) KLT 849 (L.B)] wherein the Larger bench held in paragraph 16 thereof that the staff regulations relied on therein by the employees is not a statutory regulation framed in exercise of any statutory power and the staff regulation being not statutory in nature, the grievances of the petitioners in that regard for violation of such non-statutory provisions cannot be the subject matter of the proceedings under Article 226 of the Constitution of India. 8 **W.P.(C) Nos.26763 & 25177 of 2015** ## 13. The Larger Bench held as follows in paragraph 19 of the said ruling which reads as follows: 19. Coming to Part IX B of the Constitution which has been inserted by the 97[th] Amendment, it contains several constitutional provisions which regulate incorporation, number and term of members, election of the members of the Board and superannuation. Obviously, any action of any Co-operative society if it is in breach of any of the constitutional provisions, that can be made subject matter of the Writ Petition. Present is not a case where there is any issue pertaining to any violation of Part IXB. In view of the foregoing discussion, our answer to the above questions are as follows: i) The Writ Petitions against Co-operative Societies are maintainable in certain circumstances. When the action complained in the Writ Petition is of any statutory violation on the part of the Co-operative Society, a Writ Petition will lie. The action of the Co-operative Society, if falls in a public domain or breach of the public duty is complained of, writ may also lie. However, in the abence of breach of any statutory duty or public duty, a Writ Petition cannot be entertained against a Co-operative Society. ii) The judgment of the Full Bench in Bhaskaran (supra) confines to only consideration of a Co-operative Society under Article 12. In regard to Co-operative Society which does not fall under Article 12, writ cannot be maintainable against the Cooperative Society on that basis. However, as we have already observed by considering issue No.(i), Writ Petition may be maintainable against Co-operative Society in the circumstances mentioned therein. Thus the ratio of the judgment in Bhaskaran (supra) is approved only to above extent. iii) The Full Bench judgment in John (supra) lays down the correct law and we approve the said judgment. 14. The impugned rejection order has not been challenged and moreover even otherwise the prayers in the present writ petition cannot be the subject matter of proceedings under Article 226 of the Constitution of India in view of the aforesaid Larger Bench ruling for the primary reason that Ext.P7 9 **W.P.(C) Nos.26763 & 25177 of 2015** promotion policy / standing order is not statutory in nature. It is brought to notice by the learned counsel appearing for respondents 1 and 2 that the remedy of the petitioners is to approach the Cooperative Arbitration Court constituted under Section 70 A of the Kerala Cooperative Societies Act in view of the mandatory provisions contained in Section 69 of the said Act. Section 69 (1) (c) of the Act provides that notwithstanding anything contained in any law for the time being in force, if a dispute arises between its Society or its Committee or any past Committee, any officer, agent or employee or any past officer, past agent, past employee are normally heirs of legal representatives of any deceased officer, deceased agent or deceased employee of the Society etc, then such dispute shall be referred to the Cooperative 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 further that Arbitration Court or the Registrar, as the case may be, shall decide such disputes and no other court or authority shall have jurisdiction to entertain any suit or other proceedings in respect of such disputes. Section 69(2)(d) further envisages that any dispute arising in connection with the employment of officers and 10 **W.P.(C) Nos.26763 & 25177 of 2015** servants of the different classes of societies specified in sub section (1) of Sec. 80, including their promotion and inter se seniority, shall also be deemed to be a dispute, within the meaning of the said Section. 16. A Larger Bench of this Court in the case Chirayinkeezhu Service Co-op. Bank Ltd. v. Santhosh, reported in 2015(4) KLT 163(LB) has held in para 69(vi & vii) thereof that for entertaining a dispute regarding service matters including disciplinary proceedings against the employees, officers of the Co-operative Society, etc., it is the Co-operative Arbitration Court envisaged under Sec.69, which alone is entitled to exercise the jurisdiction in that regard and even the Labour Court has no jurisdiction to entertain any such dispute, etc. 17. In the light of these aspects, it is only to be held that the petitioners are to be relegated to the statutory remedy as envisaged in Sec. 69(1)(c) of the Co-operative Societies Act, and it is for them to approach the said competent forum to ventilate their grievances in that regard. It is seen that these W.P.(C)s have been pending before this Court for some time and as W.P.(C).No. 26763/2015 was filed on 1.9.2015 and W.P.(C).No.25177/2015 was filed on 17.8.2015. It is made clear that the period spent for 11 **W.P.(C) Nos.26763 & 25177 of 2015** litigating these proceedings before this Court from the time of the institution of Writ Petitions (as indicated above) upto a period of one month from the date of receipt of the certified copy of this judgment, will stand excluded as envisaged in Sec.14 of the Limitation Act, for computing the period of limitation, if any, before the said competent forum. The submissions and contentions of the petitioners, more particularly those based on Exts.P-10 and P-12 produced in W.P.(C).No. 26763/2015 should also be duly adverted to and considered by the said forum, in case the petitioners institute appropriate action in that regard before that forum. With these observations and directions, the aforecaptioned Writ Petitions (Civil) stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** rsr