W.P.(C). No. 15866 of 2011 (G) & W.P.(C). No. 32287 of 2011, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 29TH DAY OF AUGUST 2013/7TH BHADRA, 1935** ## **WP(C).No. 15866 of 2011 (G)** **----------------------------** - **PETITIONER(S): --------------** **V. BHARGHAVAN PILLAI, S/O. LATE VISWANATHA PILLAI, 'ASWATHI', MARUTHUMOOD CHETTACHAL P.O., VIA VITHURA, THIRUVANANTHAPURAM.** **BY ADV. SRI.K.B.PRADEEP** **RESPONDENT(S):** - **--------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF CO-OPERATION GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695001.** **2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), GOVERNMENT OF KERALA, VANCHIYOOR THIRUVANANTHAPURAM-695001.** **3. THE CHAYAM SERVICE CO-OPERATIVE BANK LTD.NO.1514, CHETTACHAL P.O., VITHURA THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY-695005.** **R1-R2 BY SENIOR GOVERNMENT PLEADER K.K.SAIDALAVI R3 BY ADV. SRI.LATHEESH SEBASTIAN R3 BY ADV. SRI.M.FATHAHUDEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-08-2013, ALONG WITH WPC. 32287/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 15866 of 2011 (G)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER'(S) EXHIBITS:** **EXT.P1 COPY OF THE DECISION NO.17/08 DATED 1042008 OF THE 3RD RESPONDENT. EXT.P2 COPY OF THE ORDER DATED 28.04.2008 PASSED BY THE ASST. REGISTRAR OF CO-OPERATIVE SOCIETIES. EXT.P3 COPY OF THE DECISION NO.15/08 DATED 10.04.2008 OF THE 3RD RESPONDENT. EXT.P4 COPY OF THE COMPLAINT DATED 9.9.2010 MADE BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P5 COPY OF THE LETTER DATED 6.10.2010 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P6 COPY OF THE ORER DATED 18.11.2010 PASSED BY THE 2ND RESPONDENT. EXT.P8 COPY OF ORDER OF THE ASSISTANT REGISTRAR DATED 8.10.07.** ## **RESPONDENT'(S) EXHIBITS:** **EXT.R3(a) COPY OF THE DISMISSAL ORDER OF THE PETITIONER. EXT.R3(b) COPY OF THE APPELLATE ORDER. EXT.R3(c) COPY OF THE DECISION OF THE COMMITTEE TO THE 2ND RESPONDENT. EXT.R3(d) COPY OF THE REVISION PETITION IN RP NO.81/2011.** **//TRUE COPY//** **PA TO JUDGE** **BKA** ## **A.M. SHAFFIQUE, J** ## **---------------------------------------** ## **W.P.(C). NO. 15866 of 2011 & 32287 of 2011** ## **----------------------------------------** Dated this the 29[th ] day of August, 2013 ## **JUDGMENT** W.P.(C).No.32287/2011 is filed by the society conducting a bank challenging Ext. P7 order passed by the Joint Registrar of Co-operative societies setting aside the decision taken by the society, inter alia directing the bank to grant the salary arrears to the 3[rd] respondent from 01.11.1982 and to recognise his service from 09.06.1980. 2. The facts involved in the above case would disclose that the 3[rd] respondent joined service of the petitioner bank as salesman on 09.06.1980 on commission basis and he was appointed on permanent basis with effect from 03.11.1982. He was granted with a higher scale of pay with effect from 01.10.1988. As per orders of the Government, the 3[rd] respondent submitted a representation dated 15.01.2008 to the 2[nd] respondent for issuing direction W.P.(C). NO. 15866 of 2011 & 32287 of 2011 **2** to the bank for granting time bound promotion. The Managing Committee of the petitioner accordingly passed resolution at Ext. P1 fixing the salary of the 3[rd] respondent from 03.11.1982 with retrospective effect. However by Ext. P2, it was decided not to grant arrears of salary which got amalgamated due to fixation of salary scale with retrospective effect. The said decision was approved by the Assistant Registrar in terms of Ext. P3. According to the bank, the 3[rd] respondent did not raise any objection to Ext. P3. In the meantime, disciplinary proceedings were initiated against the 3[rd] respondent alleging misappropriation of funds and he was suspended from service on 20.06.2009. He was terminated from service as per order No. 136/10 dated 07.07.2010. Ext. P4 is the said order. Though an appeal was filed the same came to be dismissed as per Ext. P5. In the meantime, the 3[rd] respondent submitted a representation dated 09.09.2010 before the 1[st] respondent for a direction to disburse the salary arrears and other service benefits W.P.(C). NO. 15866 of 2011 & 32287 of 2011 **3** from 01.11.1982. Ext. P6 is the said representation and on the basis of which Ext. P7 came to be passed. It is the contention of the petitioner that several proceedings are pending against the 3[rd] respondent before different Courts including Arbitration Court. It is inter alia contended that the Joint Registrar has no jurisdiction to pass an order in terms of Ext P7. If at all the petitioner has a dispute, it has to be raised only before the Arbitration Court under Section 69(1) of the Co-operative Societies Act (hereinafter referred to as the 'Act'). Further, it is contended that after the Assistant Registrar had approved the resolution passed denying certain benefits to the 3[rd] respondent, it is not open for him to claim the said benefits by invoking the jurisdiction of the Joint Registrar. Hence the petitioner seeks for quashing of Ext. P7 and P10. Ext. P10 is an order passed by the Cooperative Tribunal against the decision of the Joint Registrar which was dismissed as not maintainable. 3. W.P.(C).No. 15866/2011 is filed by the 3[rd] W.P.(C). NO. 15866 of 2011 & 32287 of 2011 **4** respondent in W.P.(C).No.32287/2011 to implement the directions issued by the Joint Registrar as Ext. P6, which is produced as Ext. P7 in W.P.(C).No.32287/2011.The short question to be considered is regarding the validity of Ext. P7. 4. The learned counsel for the petitioner relies upon Section 69 of the Act in order to contend that only the Arbitration Court has the jurisdiction to pass an order and therefore Ext.P7 is issued without jurisdiction. Section 69(1) (h) of the Act reads as under:- **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,- - (h) between the society and a creditor of the society; such dispute shall be referred to the Cooperative Arbitration Court constituted under Sec. 70A, 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 W.P.(C). NO. 15866 of 2011 & 32287 of 2011 **5** dispute and no other court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute. ## 5. Reference is also made to Sub-section (2)(d) of Section 69 of the Act which reads as under:- Sec. 69 (2). For the purposes of sub-section (1), the following shall also be deemed to be disputes, namely:- - (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._ 6. The learned counsel for the petitioner bank also relied upon Division Bench judgment of this Court in **Raveendran v. State of Kerala [2007(3) KLT 558]** to contend for the said position. On a reading of Section 69(1) (h) by itself indicates that monetary disputes are to be adjudicated by approaching the Joint Registrar and nonmonetary disputes are to be adjudicated by the Arbitration W.P.(C). NO. 15866 of 2011 & 32287 of 2011 **6** Court. The judgment of the Division Bench in **Raveendran's** case (supra) also does not lay down a different proposition and therefore the jurisdiction of the Joint Registrar cannot be doubted at all. The petitioner bank preferred a revision before the Tribunal for Local Self Government Institutions which came to be dismissed as not maintainable. No appeal was provided against the order passed by the Joint Registrar before the Tribunal. The Joint Registrar is exercising the power of Registrar under the Act. An appeal could have been filed only under Section 83 of the Act. Hence Ext.P7 has become final. 7. Another contention raised by the petitioner bank is that no notice had been issued by the Joint Registrar while issuing Ext. P7. On a perusal of Ext. P7, itself indicates that notice had been issued to the petitioner bank but they failed to appear and contest the matter. That apart the file in this connection had been placed for perusal by the learned Government Pleader and it is seen that notices were issued W.P.(C). NO. 15866 of 2011 & 32287 of 2011 **7** on 06.10.2010 and 12.11.2010. The entry show that two notices were despatched to the bank. If at all the bank has a case that they were not in receipt of any such notices they should have adduced evidence regarding this. Having failed to do so, I do not think that the Joint Registrar has committed any error of law in disposing of the matter. 8. Another contention raised is with reference to the resolution passed by the bank which was approved by the Assistant Registrar. The resolution which was approved by the Assistant Registrar cannot be stated to be a final opinion about the same. If the employee concerned has a dispute regarding the pay which is actually due to him, he can definitely raise a dispute which he had done by approaching the Joint Registrar. 9. That being the situation, I do not find anything wrong with Ext. P7 even on merits. Since there is nothing on record and no material is available to indicate that the order passed by the Joint Registrar is in anyway perverse or W.P.(C). NO. 15866 of 2011 & 32287 of 2011 **8** relevant factors were not considered, I am of the view that the petitioner in W.P.(C).No.32287/2011 is not entitled for any relief in this writ petition. 10. But having regard to the claim in W.P.(C). No.15866/2011, having found that the order passed by the Joint Registrar is justifiable, the petitioner is entitled for appropriate implementation of the said order which is produced as Ext. P6 in this case. 11. In the above circumstances, these writ petitions are disposed of as under:- i) W.P.(C).No.32287/2011 is dismissed. ii) W.P.(C).No.15866/2011 is allowed directing the 3[rd] respondent to pay the petitioner the arrears of salary and other benefits in terms with Ext. P6 within a period of two months from the date of receipt of a copy of this judgment. Sd/- **A.M. SHAFFIQUE JUDGE** DCS