IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 WP(C).No. 15621 of 2009(W) ------------------------------------- PETITIONER: -------------------- P.R.VIJAYAN, ASSISTANT SECRETARY, ARIKUZHA SERVICE CO-OPERATIVE BANK LTD. NO.1438, ARIKUZHA P.O., THODUPUZHA. BY ADV. SRI.D.SOMASUNDARAM RESPONDENTS: -------------------------- 1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, (GENERAL), IDUKKI. 2. ARIKUZHA SERVICE CO-OPERATIVE BANK LTD.NO. 1438, ARIKUZHA P.O., THODUPUZHA, IDUKKI DISTRICT, REPRESENTED BY ITS SECRETARY. 3. REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. ADV. SRI.V.G.ARUN FOR R2 SRI.T.R.HARIKUMAR FOR R2 SRI. T.T.MUHAMOOD, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/6/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15621 of 2009(W) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: A TRUE COPY OF THE GOVERNMENT ORDER NO.G.O(P) NO. 220/2005/CO-OP. DATED 23/8/2005. EXHIBIT P2: A TRUE COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY OF THE BANK. EXHIBIT P3: A TRUE COPY OF THE REPRESENTATION DATED 19/7/2008 SUBMITTED BY THE PETITIONER. EXHIBIT P4: A TRUE COPY OF THE ORDER ON 12/11/2008. EXHIBIT P5: A TRUE COPY OF THE JUDGMENT IN WPC. NO.1060/2009 DATED 19/01/2009. EXHIBIT P6: A TRUE COPY OF THE ORDER DATED 1/04/2009. EXHIBIT P7: A TRUE COPY OF THE PETITION. EXHIBIT P8: A TRUE COPY OF THE ORDER. RESPONDENTS' EXHIBITS: EXHIBIT R2(a) : COPY OF THE MINUTES OF THE STAFF CONFERENCE DATED 21/6/2008. EXHIBIT R2(b): COPY OF RESOLUTION NO. 360 DATED 23/6/2008. EXHIBIT R2(c): COPY OF THE REPRESENTATION DATED 16/12/2008. EXHIBIT R2(d): COPY OF THE RESOLUTION NO. 463 BY WHICH THE DECISION TO GRANT THE ENHANCED D.A. IS CANCELLED DATED 11/10/2008. /TRUE COPY/ P.A. TO JUDGE scm K.T. SANKARAN, J. --------------------------- W.P(C).No.15621 of 2009 ------------------------------------ Dated this the 16th day of June, 2010 J U D G M E N T The petitioner is the Assistant Secretary of Arikuzha Service Co-operative Bank Ltd. No. 1438 (2nd respondent). From May 2009 onwards, he is on leave without allowances. 2. As per Exhibit P1, G.O.(P)No.220/2005/Co-op. dated 23/8/2005, the salary and allowances payable to the employees of the Primary Co-operative Societies, except certain categories of banks, were revised for the period from 1/04/2004 to 31/3/2009. Clause (20) of Exhibit P1-Government Order provides that exemption from the implementation of the Government Order or any of the provisions thereunder could be granted by the registrar of Co-operative Societies, on the basis of the decision taken by the managing committee of the Primary Co-operative Societies. The condition for attracting clause (20) is that the society should be either defunct or having no financial stability. It also provides that the managing committee should show specific reasons for the grant of exemption. On 9/8/2008, the managing committee of the second respondent bank took a W.P(C).No.15621/2009 2 decision to apply to the registrar for exemption from the provisions of Exhibit P1- Government order. The decision of the managing committee was forwarded to the registrar as per Exhibit R2(c) letter dated 16/12/2008. The registrar, as per Exhibit P8 order dated 29/4/2009, granted exemption to the second respondent-bank from implementing Exhibit P1- Government Order till 31/10/2010. The petitioner challenges Exhibit P8 in this Writ Petition. 3. Before Exhibit P8 exemption was granted, the petitioner and another had submitted Exhibit P3 representation to the second respondent-bank to grant them the benefit of voluntary retirement and to grant the benefits as per Exhibit P1- Government order. Revision of dearness allowance was also sought for in Exhibit P3 representation. As per Exhibit P4 order dated 12/11/2008, the Joint Registrar of Co-operative Societies, Idukki, directed the second respondent-bank to consider the request of the petitioner to avail voluntary retirement without claiming the arrears of revised salary as per Exhibit P1, but granting the pensionary benefits on the basis of the pay revision. W.P(C).No.15621/2009 3 Alleging that Exhibit P4 order was not being implemented, the petitioner filed W.P(C) No.1060 of 2009, which was disposed of as per Exhibit P5 judgment dated 19/1/2009 directing the Joint Registrar of Co-operative Societies to consider the grievances of the petitioner. The Joint Registrar passed Exhibit P6 order dated 1/04/2009 directing the second respondent-bank to reconsider the decision of the bank rejecting the application for voluntary retirement submitted by the petitioner and to grant the benefit at least from 1/04/2010. Exhibit P6 further directs the second respondent to look into the irregularities in the matter of granting the benefit of revision of dearness allowances. The grievance of the petitioner is that Exhibit P6 order was not implemented by the second respondent-bank. 4. The second respondent has filed a counter affidavit, in which, it is contended, inter alia, as follows: The second respondent- class III bank was running on loss for more than 10 years. Its accumulated loss is Rs.1.25 Crores. There are seven employees in the bank. The bank has to spend a sum of Rs.8,70,000/-per year as salary and other benefits to the W.P(C).No.15621/2009 4 employees. If Exhibit P1 is to be implemented, an additional financial burden of Rs.7,00,000/-per year would have to be incurred by the bank. Exhibit P8 order was passed taking into account the financial position of the bank and after being fully convinced that the second respondent-bank was not in a position to implement the pay revision in Exhibit P1. The second respondent has raised a contention that against Exhibit P8 order, an appeal lies to the Government under Section 83(1)(j) of the Kerala Co-operative Societies Act. 5. It is pointed out by the second respondent that the employees of the bank had met on 21/6/2008 and took a decision to cooperate with the managing committee of the bank to improve the financial position of the bank. The employees also made a request to the committee to implement the pay revision order. Exhibit R2(a) is the minutes of the meeting of the employees held on 21/6/2008. The managing committee of the second respondent-bank considered Exhibit R2(a) request in the meeting held on 23/6/2008 and resolution No.360 dated 23/6/2008 was passed (Exhibit R2(b)). Exhibit R2(b) gives a W.P(C).No.15621/2009 5 clear picture of the financial position of the second respondent. Exhibit R2(b) provides for the steps to be taken for improving the financial position of the bank. Long term and short term measures to be taken are comprehended in Exhibit R2(b). Targets were fixed for getting more deposits and for bringing down the amounts to be recovered by the bank from the creditors. Exhibit R2(b) further states that if the targets are achieved, D.A. would be increased to 59% instead of the present rate of 38%. It is also seen from Exhibit R2(b) that the managing committee was not adamant that Exhibit P1 pay revision would not be implemented in second respondent- bank. On the other hand, they were of the view that if the financial position of the bank improves, Exhibit P1 could be implemented. Whole-hearted cooperation of the employees of the bank was solicited in Exhibit R2(b) resolution. The learned counsel for the second respondent submitted that contrary to the expectation of the managing committee, the employees did not cooperate to achieve the targets fixed in Exhibit R2(b). It is also submitted that the petitioner is on leave without allowances from May 2009 W.P(C).No.15621/2009 6 onwards. The financial position of the bank did not improve. In these circumstances, the bank had no other alternative, but to take decision No.405 dated 9/8/2008 to apply to the registrar for exemption from the operation and implementation of Exhibit P1 Government Order. Accordingly, such application was submitted and the Registrar, taking into account all the relevant facts, passed Exhibit P8 order. 6. The learned counsel for the second respondent pointed out that even in Exhibit R2(c) dated 16/12/2008 forwarding the resolution dated 9/8/2008 to the registrar, the bank expressed the view that the direction in Exhibit P6 order could not be implemented in view of the poor financial position of the bank. It was also pointed out in Exhibit R2(c) that the question of exemption was not considered by the Registrar and therefore, a final decision on the basis of Exhibit P6 could not be taken. 7. There is no dispute that Exhibit P8 order is appealable under Section 83(1)(j) of the Kerala Co-operative Societies Act. No reasons are stated why the Writ Petition should be entertained overlooking the availability of alternate remedy to the petitioner. W.P(C).No.15621/2009 7 Therefore, I am of the view that the challenge against Exhibit P8 need not be considered in this Writ Petition and the petitioner should be relegated to the remedy of filing an appeal under Section 83(1)(j) of the Act. Since the period of limitation for filing the appeal was over and since the petitioner was prosecuting the Writ Petition, which was filed within two months from the date of Exhibit P8 order, I am of the view that the petitioner should be permitted to file an appeal before the Government challenging Exhibit P8 within a period of one month from today. If an appeal is filed within one month before the Government challenging Exhibit P8 order, the same shall be considered on merits, treating the same as having been filed within time, as expeditiously as possible after affording an opportunity of being being heard to the petitioner, the second respondent and all other affected parties. 8. As regards the reliefs prayed for by the petitioner for increasing Dearness Allowances and also for granting the benefit of voluntary retirement, the second respondent-bank has made the decision clear in Exhibits R2(b) and R2(c) that no final W.P(C).No.15621/2009 8 decision was taken by the bank on those aspects and the petitioner and other employees could seek the relief, provided, the conditions are satisfied. Therefore, it is not necessary to consider the reliefs prayed for by the petitioner on that aspect. 9. However, it is made clear that if the petitioner challenges Exhibit P8 order in an appeal, all the contentions in this Writ Petition could be taken up in such appeal and the Government shall properly consider the same. The Writ Petition is disposed of as above. The petitioner shall produce a copy of the Writ Petition with Exhibits, a copy of the counter affidavit and a copy of the reply affidavit along with appeal to be filed by him challenging Exhibit P8. K.T. SANKARAN, JUDGE scm