IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 11TH DECEMBER 2006 / 20TH AGRAHAYANA 1928 WP(C).No. 31842 of 2006(N) PETITIONERS: 1. K.S. ANNA, KAKKASSERY HOUSE, P.O. KUNNAMKULAM, TRICHUR DISTRICT. 2. K.U. SUSANNA JOB, KOLLANNUR HOUSE, NEPPAM'S LINE, KUNNAKULAM, TRICHUR DISTRICT. BY ADVS. M/S.C.VALSALAN ,K.RAKESH ROSHAN AND THUSHARA.V RESPONDENTS: 1. THE STATE OF KERALA, REP. BY THE SECRETARY, P.W.D. DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER PROJECTS, KERALA STATE TRANSPORT PROJECT, KARAMANA, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, KERALA STATE TRANSPORT PROJECT, KUTTIPPURAM. 4. THE DISTRICT COLLECTOR, TRICHUR DISTRICT, P.O.TRICHUR. 5. THE SPECIAL LAND ACQUISITION TAHSILDAR, L.A. GENERAL, CEHMBUKKAVU, THRISSUR. GOVERNMENT PLEADER SRI.L.G.SURESH BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/12/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SHAJI P. CHALY, J. ----------------------------------------------- W.P.(C). No.31892 of 2016 ----------------------------------------------- Dated this the 1st day of September, 2016 JUDGMENT This writ petition is filed by the petitioner seeking to implement Ext.P1 order dated 24.9.2004 issued by the 2nd respondent and affirmed by Ext.P4 order dated 17.6.2006 by the 1st respondent. 2. Material facts for the disposal of the writ petition are thus; petitioner while working as Attender in the 3rd respondent bank was placed under suspension on 11.10.1995 and was later reinstated in service on 9.1.1996. Thereafter, 3rd respondent bank issued a show cause notice to the petitioner alleging that, he unauthorizedly absented from duty w.e.f. 24.12.1998. It was also alleged that, petitioner had applied for commuted leave as well as voluntary retirement, which was accepted by the Board of the 3rd respondent bank on 28.4.1999. Accordingly, challenging the illegal termination of service by the 3rd respondent bank, petitioner has moved the 2nd respondent by making an application. Pursuant to W.P.(C). No. 31892 of 2006 2 which, Ext.P1 order was passed directing reinstatement of the petitioner. Thereafter, petitioner has submitted a petition before the 1st respondent seeking direction for reinstatement pursuant to Ext.P1 order passed by the 2nd respondent, which is evident from Ext.P3. Accordingly, after considering the subject issue, Ext.P4 order was passed directing the 3rd respondent to reinstate the petitioner in service. According to the petitioner, in spite of the earnest efforts of the petitioner as well as based on Exts.P1 and P4, 3rd respondent bank refused to reinstate the petitioner in service. 3. Third respondent has filed a counter affidavit basically contending that Ext.P1 communication issued by the 2nd respondent is not on the basis of any provisions of the Kerala Co-operative Societies Act and the Rules made thereunder. So also it is contended that Ext.P4 order passed by the 1st respondent is also not in accordance with law. According to the 3rd respondent, there is no authority conferred either on the 1st respondent or on the 2nd respondent to issue the orders under question. That apart it is also contended that, petitioner misappropriated the money due to the bank while W.P.(C). No. 31892 of 2006 3 he was holding the charge of Onam market. It is also stated that while the petitioner was in charge of Manure Section of the branch, there was a deficit of Rs.33,854.85. It was thereupon petitioner was issued with a show cause notice and he requested time for deposit. According to the 3rd respondent, petitioner remitted the amount on 4.10.1995 and undertaken in writing that he will not repeat this conduct any further. However, taking into account the seriousness of the misconduct, the Managing Committee decided to place the petitioner under suspension. Thereafter petitioner gave a request on 9.1.1996 for reviewing the suspension and it was on the basis of the said request, suspension was revoked. That apart, it is also contended that, from 24.12.1998 petitioner abstained from duty and the same was reported by the Branch Manager to the Secretary. Accordingly petitioner was given notice on 30.12.1998 seeking explanation. The Branch Manager has also reported that there is deficit in stock where the writ petitioner was in charge and thereupon the Committee consisting of the President and the Chief Accountant have conducted stock verification and the report W.P.(C). No. 31892 of 2006 4 of the Branch Manager was found true. At that point of time, petitioner applied for commuted leave from 1.1.1999 to 31.3.1999 and on the same day, he gave a request for voluntary retirement. The said request was considered by the Committee and accepted the same on 28.4.1999. Petitioner kept quite till 2004 and secured an order like Ext.P1. Therefore, it is contended that petitioner is not entitled to get any relief as sought for in the writ petition since there are illegalities emerging out of Exts.P1 and P4 orders passed the 2nd and 1st respondents respectively. 4. During the pendency of the writ petition, petitioner died. Consequently, additional petitioners 2 to 8 were impleaded as legal heirs of the 1st petitioner. 5. Heard learned counsel for the petitioner, learned Senior Government Pleader, learned counsel appearing for the 3rd respondent bank, perused the documents on record and the pleadings put forth by the respective parties. 6. The prime contention advanced by the learned counsel for the petitioner is that, since Ext.P1 order affirmed in Ext.P4 has become final, 3rd respondent bank is liable under law to W.P.(C). No. 31892 of 2006 5 reinstate the petitioner in service and since the petitioner died during the pendency of this writ petition, legal heirs are entitled to get the benefits accrued from the said orders. It is also the contention of the additional petitioners that, petitioner has not submitted any application for commuting the leave or seeking voluntary retirement. However, on the other hand, learned counsel for the 3rd respondent bank submitted that, the respondents 1 and 2 are not having any power to pass orders like Exts.P1 and P4. It is also contended that consequent to the introduction of Section 69 of the Kerala Co-operative Societies Act, the issue raised by the petitioner with respect to service benefit, can only be considered by the Arbitration Court in terms of Section 69. Therefore, according to the 3rd respondent, 3rd respondent bank has no manner of binding duty to implement Exts.P1 and P4 orders passed by the 2nd and 1st respondents respectively. Learned counsel for the 3rd respondent has also invited my attention to a Division Bench judgment of this court in Raveendran v. State of Kerala [2007(3) KLT 558] which had occasion to consider the question with respect to the W.P.(C). No. 31892 of 2006 6 introduction of Section 69 and the power of the Registrar to consider any pending dispute. It was held therein that when Section 69 came into force on 2.1.2003, any dispute with respect to any service matter, only the Arbitration Court has the power and therefore, any pending proceedings should have been referred to the Arbitration Court to have a decision in accordance with law. 7. Taking into account the respective submissions made across the Bar, I am of the considered opinion that, the question to be considered is whether petitioner is entitled to get any relief on the basis of Exts.P1 and P4 orders passed by the 2nd and 1st respondents respectively. Apparently from the year 1999, petitioner was out of employment. However, on a perusal of the records, it is categoric and clear that, petitioner has submitted an application before the 2nd respondent only in the year 2004. Therefore, it can be seen that, even when the petitioner was out of employment, he has not raised any dispute with respect to the non-employment almost for a period of 5 years. Therefore, there is considerable delay on the part of the petitioner in approaching the 2nd respondent. W.P.(C). No. 31892 of 2006 7 Moreover, if the petitioner had not submitted voluntary retirement application, on denial of continuing in employment, petitioner would have retorted immediately. This shows that there is no merit or reason in the contention raised by the petitioner, with respect to the issue relating to application for voluntary retirement. Such a contention raised by the petitioner at a very belated stage, is not at all worthwhile for any deeper consideration also. 8. Moreover, Section 69 of the Act was brought into force w.e.f. 2.1.2003 and going by the tenor of the provisions of Section 69, it is distinctly clear, only the Arbitration Court was vested with powers to entertain and consider a service dispute between a society and its employee. Therefore, when the petitioner filed the application before the 2nd respondent, the 2nd respondent did not have any power at all to entertain the same. Same is the case with Ext.P4 order passed by the 1st respondent, which is dated 17.6.2006. If at all there was any materials or merits on the application submitted by the petitioner, at the most what the 2nd and the 1st respondent should have done is to refer the matter to the Arbitration W.P.(C). No. 31892 of 2006 8 Court for consideration. That was not done and on the other hand passed orders. Therefore, it is categoric and clear that the said statutory authorities were not vested with powers to pass orders in nature of Exts.P1 and P4 consequent to introduction of Section 69 which became operative on and w.e.f. 2.1.2003. 9. The resultant consequence to the above discussion is that petitioner has not made out any case of illegality, irrationality or other legal infirmities enabling this court to exercise the power conferred under Article 226 of the Constitution of India and therefore, the writ petition is dismissed. Sd/- SHAJI P. CHALY JUDGE smv 02.09.2016