WA Nos. 334 & 356 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941** ## **WA.No.334 OF 2016** **AGAINST THE JUDGMENT IN WPC 30970/2012 DATED 01-08-2013 OF HIGH COURT OF KERALA** ## **APPELLANTS/PETITIONERS:** - **1 THE PRESIDENT, THIRUVANANTHAPURAM DISTRICT JOB WORKERS CO-OPERATIVE SOCIETY LTD.NO.T.735 BEACH P.O KARIKKAKAM THIRUVANANTHAPURAM 695 007** - **2 THE SECRETARY THIRUVANANTHAPURAM DISTRICT JOB WORKERS COOPERATIVE SOCIETY LTD.NO.T.735, BEACH P.O KARIKKAKAM THIRUVANANTHAPURAM 695 007** **BY ADV. SRI.T.R.HARIKUMAR** ## **RESPONDENTS/RESPONDENTS:** - **1 THE KERALA CO-OPERATIVE TRIBUNAL THIRUVANANTHAPURAM 695 001** - **2 G.SREELATHA, D/O.R.MANIYAN 'KEDARAM', BEACH P.O, KARIKKAKAM THIRUVANANTHAPURAM 695 007.** - **3 PRATHAPACHANDRAN ARACKAL HOUSE, BEACH P.O, KARIKKAKAM THIRUVANANTHAPURAM 695 007** - **4 V.K.BEENA, W/O.JAYAKUMARAN NAIR, VIJAYASREE, BEACH P.O, KARIKKAKAM THIRUVANANTHAPURAM 695 007** W.A.Nos.334 & 356 of 2016 2 - **5 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) THIRUVANANTHAPURAM 695 001** - **6 THE PRINCIPAL SECRETARY CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695 001** - **7 THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM 695 001** **R4 BY ADV. SRI.GEORGE POONTHOTTAM** **SMT.NISHA GEORGE** **R2 BY ADV. SRI.P.MARTIN JOSE** **R2 BY ADV. SRI.THOMAS P.KURUVILLA** **R2 BY ADV. SRI.P.PRIJITH R3 BY ADV. SRI.A.CHANDRABABU** - **R1 & R5 TO R7 BY G.P.SRI.RENIL ANTO KANDAMKULATHY** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.09.2019, ALONG WITH WA.356/2016(Y), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.Nos.334 & 356 of 2016 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941** **WA.No.356 OF 2016(Y)** **AGAINST THE JUDGMENT IN WPC 30200/2012 DATED 01-08-2013 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **V.K.BEENA VIJAYASHREE, T.C. 79/801, KARIKKAKOM, BEACH.P.O., THIRUVANANTHAPURAM-7** **BY ADV. SRI.GEORGE POONTHOTTAM (SR.)** ## **RESPONDENTS/RESPONDENTS:** - **1 THE KERALA C0-OPERATIVE TRIBUNAL REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM-695001.** - **2 THE THIRUVANANTHAPURAM DISTRICT JOB WORKERS CO-OPERATIVE SOCIETIES LTD. NO.T-735, BEACH .P.O., KARIKKAKOM, THIRUVANANTHAPURAM-695007, REPRESENTED BY ITS SECRETARY.** - **3 THE PRESIDENT** **THE THIRUVANANTHAPURAM DISTRICT JOB WORKERS CO-OPERATIVE SOCIETY LTD. NO. T-735, BEACH.P.O., KARIKKAKOM, THIRUVANANTHAPURAM-695007.** W.A.Nos.334 & 356 of 2016 4 **4 G.SREELATHA KEDARAM, BEACH.P.O., KARIKKAKOM, THIRUVANANTHAPURAM-695007.** **R1 BY G.P.SRI.RENIL ANTO KANDAMKULATHY R2 & R3 BY ADV. SRI.T.R.HARIKUMAR R4 BY ADV. SRI.P.MARTIN JOSE** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.09.2019, ALONG WITH WA.334/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.Nos.334 & 356 of 2016 5 ## **JUDGMENT** ## **Ravikumar, J.** The captioned appeals are directed against the common judgment dated 01.08.2013 in WP(C)Nos.30970 and 30200, of 2012 whereby they were dismissed. To be precise, the former appeal is directed against the judgment in WP(C)No.30970 of 2012 and the latter appeal is directed against the judgment in WP(C)No.30200 of 2012. The unsuccessful petitioners in the said writ petitions are the appellants. They challenged the judgment of the Kerala Co-operative Tribunal in Appeal No.13 of 2012 to the extent it set aside the appointment of the appellant in the latter appeal as the Paid Secretary in Thiruvananthapuram District Job Workers Co-operative Society (for short “the Society”). It is also to be noted that as per the aforesaid judgment dated 01.08.2013 of the learned single Judge two other writ petitions viz., WP(C)Nos.4935 and 19557 of 2008 were also dismissed. In both the said writ petitions petitioner was the same and in fact she, viz., G.Sreelatha is the 2[nd] respondent in W.A.No.334 of 2016 and the 4[th] respondent in W.A.No.356 of 2016. Hereafter, in this judgment the said G.Sreelatha is referred to as 'the common respondent'. In WP(C)No.19557 of 2008 the common respondent challenged the order bearing No.G.O.(P) No.235/2007/Co-op. dated 3[rd] December, 2007 W.A.Nos.334 & 356 of 2016 6 passed by the Government granting exemption from the provisions of sub-rule (1) of Rule 183 of the Kerala Co-operative Societies Rules (for brevity 'KCS Rules') for the purpose of appointing the appellant in the latter appeal as Secretary and another person as Attender in the Society. The fact is that, despite the dismissal of the said writ petition challenging the order passed by the Government granting exemption the common respondent has not chosen to challenge the same in appeal. We will consider the relevance of the same as also the nonchallenge against the judgment of dismissal in WP(C)No.4935/2008 a little later. 2. Now, we will revert to the appeals. As noticed hereinbefore, the appellants challenged the judgment dated 06.10.2012 passed by the Kerala Co-operative Tribunal in Appeal No.13/2012 only to the extent it set aside the appointment of the appellant in the latter appeal. The appellants, who were the writ petitioners, essentially challenged the same on the ground that the Tribunal got no jurisdiction at all to consider the validity of the order passed by the Government granting exemption to the Society from the provisions of Rule 183(1) of the KCS Rules for the aforesaid purpose invoking the power under Rule 181 of the said Rules. A brief narration of the circumstances that led to the appointment of the appellant in the latter appeal is required for a W.A.Nos.334 & 356 of 2016 7 proper disposal of these appeals. While working as Bill Collector on provisional basis under the second respondent Society the appellant in the latter appeal had responded to Ext.P1 notification issued by the Thiruvananthapuram District Job Workers Co-operative Society for appointment to the post of Paid Secretary. After completing the selection process a ranked list was published by the Society on 19.06.2006. Being the first rank holder the appellant in the latter appeal was granted appointment. True that, as on 01.04.2006, the last date fixed for submission of application she had virtually crossed the upper age limit. Later, the Society moved the Government seeking exemption from the provisions of Rule 183(1) of the KCS Rules invoking the power under Rule 181 of the Rules. In this context, it is to be noted that though the legality of the order of exemption and the consequential appointment of the appellant in the latter appeal was questioned by the common respondent in WP(C)No.19557 of 2008 the learned single Judge was not inclined to accept the contentions raised to challenge the order of exemption and consequently, the said writ petition was dismissed. Despite the dismissal of the said writ petition, the common respondent did not challenge the said judgment in WP(C)No.19557 of 2008. In such circumstances, we are of the considered view that in these appeals we are not at all called upon to W.A.Nos.334 & 356 of 2016 8 consider the validity of the exemption granted by the Government to the second respondent Society from the provisions under Rule 183 (1) of the KCS Rules for the purpose of appointment of the appellant in the latter appeal as Paid Secretary to the Society by invoking the power under Rule 181 thereunder as also the legality of the appointment of the appellant in the latter appeal. In other words, in view of the said circumstances we are only called upon to consider the question whether the Co-operative Tribunal got the jurisdiction to consider the correctness of exemption granted by the Government to the second respondent Society from the provisions of Rule 183 (1) of the KCS Rules for the aforesaid purpose invoking the power under Rule 181 and consequently, in considering the legality of the appointment of the appellant in the latter appeal, in Appeal No.13/2012. 3. Heard the learned counsel appearing for the appellants in both the appeals, the learned counsel appearing for the common respondent and also the learned Government Pleader. 4. Subsequent to the appointment of the appellant in the latter appeal as Paid Secretary in the 2[nd] respondent Society the common respondent, who was then working as Bill Collector, was placed under suspension pending disciplinary proceedings. Aggrieved by the order of suspension she filed ARC.No.15/2007 under Section 69 of the W.A.Nos.334 & 356 of 2016 9 Kerala Co-operative Societies Act (for short `KCS Act'). In the said Arbitration Case she has also made a collateral challenge against the order passed by the Government granting relaxation from the application of the provisions under Rule 183(1) of the KCS Rules to the 2[nd] respondent Society for appointment of the appellant in the latter appeal by invoking the power under Rule 181 of the KCS Rules as also the appointment of the appellant in the latter appeal as Paid Secretary. After considering the rival contentions the Arbitrator passed an award on 15.11.2011. Obviously, ARC.No.15 of 2007 was dismissed by the Arbitrator. The Arbitrator took note of the fact that after her suspension from service with effect from 15.1.2007 the common respondent was dismissed from service with effect from 24.1.2008. As noticed hereinbefore, ARC was filed only against the order of suspension and though she was dismissed from service during the pendency of the suit, the common respondent, who was the plaintiff therein, had not chosen to amend the plaint so as to bring in challenge against the order of dismissal. That apart, the Arbitrator found that the order of dismissal was already implemented. It is observed therein that though the plaintiff therein/the common respondent herein had ample opportunity to amend the plaint she had not availed the said opportunity. In such circumstances, taking note of the fact that she was dismissed from W.A.Nos.334 & 356 of 2016 10 service on 24.1.2008 the prayer to set aside the order of suspension could not be allowed, it was held. It appears that before the Arbitrator the appellants herein had not seriously taken up the contention regarding lack of jurisdiction on the part of the Arbitrator for considering the legality of the appointment of the appellant in the latter appeal on the ground that the said issue would not fall within the purview of the scope of Section 69 of the KCS Act. Be that as it may, the fact is that the said question was considered by the Arbitrator and on merits it was held that there is no illegality in the appointment of the appellant in the latter appeal as Paid Secretary in the 2[nd] respondent Society. 5. Felt aggrieved by the award passed by the Arbitrator the common respondent herein had filed an appeal before the Kerala Cooperative Tribunal as Appeal No.13 of 2012. As per judgment dated 6.10.2012 the Tribunal virtually allowed the appeal in part. To be precise, the award of the Arbitrator rejecting the claim for setting aside the order of suspension of the common respondent and for grant of subsistence allowance were rejected and that part of the award was confirmed by the Tribunal. At the same time, the Tribunal set aside that part of the award rejecting the prayer of the common respondent for setting aside of the appointment of the appellant in the latter appeal as W.A.Nos.334 & 356 of 2016 11 Paid Secretary of the 2[nd] respondent Society. It is challenging the setting aside of the appointment of the appellant in the latter appeal that the above mentioned writ petitions from which these appeals arise had been filed. As noticed hereinbefore, the learned Single Jude considered W.P.(C)Nos.4935, 19557 of 2008, 30200 & 30970 of 2012 jointly and passed the impugned judgment whereby all the writ petitions were dismissed. We have already taken note of the fact that the common respondent herein virtually challenged only the appointment of the appellant in the latter appeal along with the main challenge against her own suspension in ARC.No.15 of 2007. The order passed by the Government granting relaxation from the provisions of Rule 183(1) of the KCS Rules for the specified purpose therein was not under challenge before the Arbitrator. In that context, it is relevant to note that in fact, such a challenge was raised by the common respondent before this Court in W.P.(C)No.19557 of 2008. As noticed hereinbefore, as per the common judgment W.P.(C)No.19557 of 2008 was dismissed upholding the order of the Government granting exemption. The writ petition filed by the common respondent herein viz., W.P.(C)No.4935 of 2008 challenging Ext.P4, marked as such therein, whereunder she was dismissed from service of the society was also dismissed. However, the common respondent, who was the W.A.Nos.334 & 356 of 2016 12 petitioner in both the said writ petitions, had not preferred any appeal against those judgments in the said writ petitions for reasons best known to him. The learned Single Judge dismissed W.P.(C)Nos.4935, 19557 of 2008, and 30280 & 30970 of 2012. Virtually, the learned Single Judge upheld the order of the Tribunal setting aside the appointment of the appellant in the latter appeal. It is in the said circumstances that the appellants preferred the captioned appeals challenging the judgment in W.P.(C)Nos.30200 and 30970 of 2012. As noticed earlier, the appellants were the petitioners in those writ petitions. 6. The learned Senior Counsel appearing for the appellant in the latter appeal as also the learned counsel appearing for the appellant in the former appeal in unison contended that the challenge against the appointment of the appellant in the latter appeal as Paid Secretary of the 2[nd] respondent society could not have been entertained by the Arbitrator as also by the Tribunal as the same was totally outside the scope of Section 69 of the KCS Act. Specifically referring to the provisions under Section 69 of the said Act it is contended that appointment of the appellant in the latter appeal as Paid Secretary would not fall under the definition of 'dispute' under Section 2(i) of the KCS Act and to buttress the said contention the learned Senior Counsel W.A.Nos.334 & 356 of 2016 13 relied on a decision of the Hon'ble Apex Court in **Akalakunnam Village Service Co-op. Bank Ltd. And another** v. **Binu.N. and others** reported in **AIR 2015 SC 1115** . The learned counsel appearing for the appellant in the former appeal also endorsed the said contention. In short, their contention is that the Tribunal was lacking jurisdiction to consider the challenge against the relaxation granted to the society by the Government and also the appointment of the appellant in the latter appeal in ARC.No.15/2007. Hence, the learned Single Judge ought not to have confirmed the order of the Tribunal especially after dismissing W.P.(C)No.19557 of 2008. True that after considering said question on merits the Arbitrator dismissed the suit and at the same time, the Tribunal had virtually considered not only the challenge against the appointment of the appellant in the latter appeal but also the legality of the order of exemption granted by the Government to the 2nd respondent society from the provisions of Rule 183(1) of the KCS Rules and reversed the finding of the Arbitrator and held that Government had no power to exempt the Society from the application of Rule 183(1) of KCS Rules and consequently, set aside the appointment of the appellant in the latter appeal. As is obvious from the impugned judgment dated 1.8.2013 the learned Single Judge considered W.P.(C)No.19557 of 2008 along with W.P.(C)Nos.30970 and W.A.Nos.334 & 356 of 2016 14 30200, of 2012, carrying challenge against the order of exemption granted by the Government to the Society, from the provisions under Section 183(1) of the KCS Act for the purpose of appointment of the appellant in the latter appeal. As noticed hereinbefore, the learned Single Judge held that Government got such power to grant exemption and dismissed W.P.(C)No.19557 of 2008. 7. From the facts expatiated above and more particularly from the position obtained to the effect that the challenge against the power of the Government to grant exemption to the Society from the provisions of Section 183(1) of the KCS Act was repelled by the learned Single Judge and consequently, W.P.(C)No.19557 of 2008 was dismissed and even then it was not challenged by the common respondent, would make the scope of consideration in the above appeals very limited. In other words, in view of the aforesaid peculiar circumstances the limited question to be considered is whether the Arbitrator ought to have entertained the challenge against the order of exemption as also the appointment of the appellant in the letter appeal as a dispute under Section 69 of the KCS Act. Needless to say that if the answer is in the negative it would denude the jurisdiction of the Tribunal as well, on that issue. It is in this context that the decision of the Apex Court in **Binu's** case (supra) would assume relevance. W.A.Nos.334 & 356 of 2016 15 8. In the said decision the dispute was virtually raised by an applicant who responded to a notification issued by Akalakunnam Village Service Co-operative Bank for appointment to the post of Attender/Peon. The dispute was raised alleging failure on the part of the Bank to conduct a written examination and interview in terms of then existing guidelines issued by the Registrar of Co-operative Societies. For the purpose of deciding the above appeal it is absolutely unnecessary to go into the details of the said case. In other words, for the purpose of the above appeal it is need only to take note of the fact that it was a dispute between the appellant who responded to a notification issued by the and the said Bank. In that context, paragraph 13 of the said decision is extractible and it reads thus:- “Considering aforesaid provisions of Section 69, we do not find any force in the contention of the appellants regarding availability of alternate remedy by way of filing an Arbitration case under section 69 of the Act since in our opinion dispute between the writ petitioners and the Bank does not come within the provisions of this Section.” 9. Thus, it is obvious that when the issue is in relation to an appointment, at the instance of an applicant for appointment it could not constitute a dispute between himself and the Bank within the purview of Section 69 of the KCS Act. Hence, there can be absolutely no question of a challenge against an appointment by a person who is a W.A.Nos.334 & 356 of 2016 16 non-applicant to the said post falling within the scope of the expression 'dispute' under the said provision. In such circumstances, the grievance of the common respondent who was not an applicant to the post of Secretary, relating the appointment of the appellant in the latter appeal as secretary of the Bank ought not to have been entertained as a dispute under Section 69 by the Arbitrator. True that, the Arbitrator after entertaining it as a dispute dismissed the said claim. However, in the appeal the Tribunal reversed the findings of the Arbitrator and interfered with the appointment of the appellant in the latter appeal. When the said issue relating the appointment of the appellant in the latter appeal could not have been a subject matter in ARC.No.15/2007, in the appeal the Tribunal ought not to have entertained that issue as the original authority lacked jurisdiction to consider the same. In that view of the matter it can only be held that the appointment of the appellant in the latter appeal could not have been raised as an issue in ARC.No.15/2007 before the Arbitration Court as also before the Tribunal. Hence the order of the Tribunal interfering with the appointment of the appellant in the latter appeal can only be held as an order passed without any jurisdiction. When that be the position the judgment dated 01.08.2013 in WP(C)Nos.30970/2012 and 30200/2012 also invites interference. When the Tribunal lacked jurisdiction to W.A.Nos.334 & 356 of 2016 17 entertain such a matter in the appeal this Court cannot validate the judgment passed by the Tribunal. In the said circumstances, these appeals are allowed. The common judgment stands modified to the extent whereby the learned single Judge dismissed WP(C)Nos.30970/2012 and 30200/2012. As noticed hereinbefore, those writ petitions are filed challenging the order of the Tribunal to the extent the appointment of the appellant in the latter appeal was set aside. For the aforesaid reasons the judgment of the Tribunal to the extent it interfered with the appointment of the appellant in the latter appeal invites interference. In the said circumstances, the judgment in WP(C)Nos.30970/2012 and 30200/2012 and the order passed by the the Kerala Co-operative Tribunal in Appeal No.13/2012 are set aside to the extent the judgment/order thereunder pertain to the appointment of the appellant in the latter appeal. Sd/- ## **C.T.RAVIKUMAR** ## **Judge** Sd/- **N.NAGARESH Judge** TKS