IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 WP(C).No. 26173 of 2009(N) --------------------------------- PETITIONER(S): ------------------- M.SATHEERATNAM, MUIHUVARA HOUSE, PO, PERINTHALMANNA,. BY ADV. SRI.P.P.JACOB RESPONDENT(S): --------------------- 1. PERINTHALMANNA TALUK CO-OPERATIVE EDUCATIONAL SOCIETY LTD.NO.M.358, PERINTHALMANNA, REP.BY ITS SECRETARY. 2. BOARD OF DIRECTORS OF THE PERINTHALMANNA TALUK CO-OPERATIVE EDUCATIONAL SOCIETY LTD.NO.M.358,PERINTHALMANNA, REP.BY ITS PRESIDENT. 3. THE JOINT REGISTRAR OF CO.OPERATIVE SOCIETIES(G), MALAPPURAM. 4. THE DOMESTIC ENQUIRY OFFICER PERINTHALMANNA TALUK CO-OPERATIVE EDUCATIONAL SOCIETY LTD.NO.M.358, PERINTHALMANNA. R1,2 BY ADV. SRI.GEORGE POONTHOTTAM R3 BY GOVT.PLEADER BASANT BALAJI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO.26173/2009 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE CHARGE MEMO WITH SUSPENSION ORDER ISSUED BY SECOND RESPONDENT DATED 20/10/2007. P2: COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 05/11/2007 TO THE 2ND RESPONDENT. P3: COPY OF THE PETITION FILED BEFORE THE FOURTH RESPONDENT DATED 08/05/2009. P4: COPY OF THE PETITION FILED BEFORE THE FOURTH RESPONDENT DATED 09/07/2009. P5: COPY OF THE PETITION FILED BEFORE THE FOURTH RESPONDENT DATED 11/07/2009. P6: COPY OF THE REPRESENTATION SUBMITTED BEFORE THE SECOND RESPONDENT DATED 13/06/2008. P7: COPY OF THE REPRESENTATION SUBMITTED BEFORE THE THIRD RESPONDENT DATED 31/10/2008. P8: COPY OF THE REPRESENTATION SUBMITTED BEFORE THE CHIEF MINISTER'S GRIEVANCE CELL DATED 17/08/2009. P9: COPY OF THE REPRESENTATION SUBMITTED BEFORE THE THIRD RESPONDENT DATED 07/09/2009. P10: COPY OF THE LETTER ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER DATED NIL. P11: COPY OF THE STATEMENT ISSUED FROM THE OFFICE OF THE JOINT REGISTRAR DATED NIL. P12: COPY OF THE PAGE 1 & 2 OF THE BYELOW OF THE SOCIETY. P13: COPY OF THE SYNOPSIS FILED BY THE FIRST RESPONDENT IN W.A.78/10 DATED 11/01/2010. P14: COPY OF THE JUDGMENT IN W.A. 78/2010 DATED 08/02/2010. P15: COPY OF THE G.O.(MS)116/82 A D DATED 24/03/82 ISSUED BY GOVERNMENT OF KERALA. P16: COPY OF THE EXPERIENCE CERTIFICATE ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT DATED 15/12/99. svs ...........2/-... ...2... WPC.NO.26173/2009 P17: COPY OF THE STATEMENT OF PROVIDENT FUND AMOUNT PREPARED BY FIRST RESPONDENT DATED 31/03/2004. P18: COPY OF THE STATEMENT OF SALARY OF THE EMPLOYEES PREPARED BY FIRST RESPONDENT DATED 31/03/2004. P19: COPY OF THE ORDER ISSUED BY THIRD RESPONDENT TO THE PETITIONER DATED 16/09/2009. P20: COPY OF THE RESOLUTION NO.8 DATED 03/10/2009 OF THE FIRST RESPONDENT. P21: COPY OF THE BALANCE SHEET SHOWING ASSETS OF THE FIRST RESPONDENT AS ON 31/03/2009. P22: COPY OF THE LETTER ISSUED BY THE FIRST RESPONDENT DATED 16/07/2010 TO THE PETITIONER P23: COPY OF THE REPLY ISSUED BY THE PETITIONER TO THE FIRST RESPONDENT DATED 31/08/2010. P24: COPY OF THE ORDER ISSUED BY THE JOINT REGISTRAR, MALAPPURAM DATED 30/12/2008. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.26173 of 2009 ----------------------------------------- Dated this the 23rd March, 2011 JUDGMENT The petitioner, who is a member of the first respondent society, was appointed as Teacher with effect from 1.7.1986. Nearly a decade thereafter the President of the first respondent society placed her under suspension by issuing Ext.P1 letter dated 20.10.2007. By that letter the petitioner was also called upon to show cause why disciplinary action should not be taken against her in respect of the various acts of commission and omission referred to therein. The petitioner submitted Ext.P2 reply dated 5.11.2007 denying the allegations. It appears that the petitioner was not paid any subsistence allowance even though she was placed under suspension. After the order of suspension was passed Sri.T.K.Sankaran, a member of the Perinthalmanna Bar, was appointed as the Enquiry Officer and he commenced the enquiry. Before the Enquiry Officer the petitioner pointed out that she is not being paid subsistence allowance. She thereafter submitted Ext.P6 letter dated 13.6.2008 to the President of the W.P(C) NO.26173/2009 -:2:- first respondent society requesting him to take steps to pay subsistence allowance to her. When no reply was forthcoming she sent Ext.P7 letter dated 31.10.2008 followed by Ext.P9 letter dated 7.9.2009 to the Joint Registrar of Co-operative Societies (General) Malappuram. The instant writ petition was thereafter filed on 16.9.2009 seeking the following reliefs: “i. issue a writ of mandamus or other writ, order or direction directing the respondents 1 & 2 to pay the subsistence allowance due to the petitioner w.e.f. 20.10.2007 immediately. ii. direct the respondents 1 & 2 to reinstate the petitioner in service forthwith. iii. direct the third respondent to consider and pass orders on Exts.P7 & P9 immediately enabling the petitioner to get the subsistence allowance as per law. iv. direct the respondents 1, 2 and 4 to issue copy of the documents as requested to defend the domestic enquiry proceedings as per law.” 2. The main contention raised in the writ petition is that in view of the provisions contained in sub-rule (6) of rule 198 of the Kerala Co-operative Societies Rules (hereinafter referred to as “the rules” for short), the continued suspension of the petitioner for a period exceeding one year is illegal as the prior approval of W.P(C) NO.26173/2009 -:3:- the Registrar has not been obtained for continuing the suspension beyond one year. It is also contended relying on the very same rule that denial of subsistence allowance is also illegal. The validity of the enquiry is also challenged on the ground that subsistence allowance is not being paid. 3. On the date on which the writ petition was filed, the Joint Registrar of Co-operative Societies, Malappuram sent Ext.P9 letter dated 16.9.2009 to the office of the Hon'ble the Chief Minister informing him that directions have already been issued on 12.8.2009 and 10.9.2009 to the first respondent society to pay subsistence allowance to the petitioner. Such a letter was sent in view of the steps taken by the Hon'ble the Chief Minister upon receipt of Ext.P8 complaint dated 17.8.2009 submitted by the petitioner. The first respondent society did not even thereafter pay subsistence allowance to the petitioner. Instead long afterwards the President of the first respondent society sent Ext.P22 letter dated 16.7.2010 to the petitioner informing her that as a member of the society she cannot be its employee and therefore she cannot be treated as an employee of the society. By that letter she was also informed that in view of various acts of misconduct on her part the Managing Committee of the society W.P(C) NO.26173/2009 -:4:- has taken a decision to dis-engage her from teaching. The first respondent thereafter filed a counter affidavit dated 14.1.2011 wherein various contentions are raised including the contention that in view of rule 16(2)(e) of the rules the petitioner cannot be an employee of the first respondent society. As regards payment of subsistence allowance it is stated that after the writ petition was filed the sum of Rs.36,563/- was paid on 9.11.2009 and a further sum of Rs.50,000/- was paid on 26.10.2010. It is stated that though the sum of Rs.86,563/- was thus paid, it cannot be treated as payment of subsistence allowance as the petitioner is not an employee of the first respondent society nor the first respondent society the employer. 4. I heard Sri.P.P.Jacob, learned counsel appearing for the petitioner, Sri.George Poonthottam, learned counsel appearing for respondents 1 and 2 and Sri.Basant Balaji, learned Government Pleader appearing for the 3rd respondent. Though the 4th respondent has not been served, in the nature of the order that I propose to pass and in view of the subsequent developments referred to in Ext.P22, I am of the opinion that notice need not be issued to the 4th respondent and he need not be heard in this proceeding. Shorn of details, the main defence W.P(C) NO.26173/2009 -:5:- put forward by the first respondent in answer to the petitioner's claim for subsistence allowance is that the petitioner, being a member of the first respondent society, cannot simultaneously be its employee. Reliance is placed on rule 16(2)(e) of the rules in support of the said contention. Rule 16(2) is quoted below:- “16(2) No person shall be eligible for admission as a member of a Co-operative Society, if (a) has not attained the age of 18 years. (b) is not a resident of or does not own or possess land within the area of operation of the society, provided that this clause shall not apply in the case of a society formed exclusively for the students of any School or College; (c) has applied to be adjudicated as an insolvent or is an undischarged insolvent; (d) has been sentenced for any offence, other than an offence of a political character or an offence not involving moral turpitude and period of five years has not elapsed from the date of expiry of the sentence; or (e) is a paid employee of the Society or of its financing Bank or of any society for which it is the financing Bank, provided that this restriction shall not apply to Co-operative Motor Transport Societies, Co-operative W.P(C) NO.26173/2009 -:6:- Workshops, Societies for the employees of Financing Banks, and Societies formed for benefit of actual workers; or (f) has been surcharged under S.68 and a period of 3 years has not elapsed since the payment of money or restoration of property as directed in the said order of surcharge.” 5. Rule 16(2) of the rules deals with the eligibility for membership in a co-operative society. Rule 16(2) stipulates that no person shall be eligible for admission as a member of a co- operative society, if he, has not attained the age of 18 years or is not a resident of or does not own or possess land within the area of operation of the society, or has applied to be adjudicated as an insolvent or is an undischarged insolvent, or has been sentenced for any offence other than an offence of a political character or an offence not involving moral turpitude and a period of five years has not elapsed from the date of expiry of the sentence, or is a paid employee of the society or of its financing bank or of any society for which it is the financing bank, or has been surcharged under section 68 and a period of three years has not elapsed since the payment of money or restoration of property as directed in the said order of surcharge. There are also certain exceptions to W.P(C) NO.26173/2009 -:7:- the various conditions set out above. The restriction regarding residence is not applicable in the case of a society formed exclusively for the students of any school or college and employment in a society is not a disqualification for being a member of co-operative motor transport societies, co-operative workshops, societies for the employees of financing banks and societies formed for the benefit of actual workers. Rule 16(2) does not ipso facto state that a member of a society shall not be eligible to be appointed as an employee of the society. The restriction is against the grant of membership to employees. However, the learned counsel appearing for the first respondent society relies on the said rule to contend that as a member of the society the petitioner cannot be its employee. In my opinion in view of the admitted facts which are discernible from the pleadings the said question does not really require to be decided in this writ petition. The fact that the petitioner was working as a Teacher in the first respondent society ever since 1.7.1988 is not in dispute. Likewise the fact that she was placed under suspension on 20.10.2007 and a domestic enquiry was also initiated against her is also not in dispute. These facts are virtually admitted in Ext.P22. Though in Ext.P22 also the W.P(C) NO.26173/2009 -:8:- President of the first respondent society has raised a contention that being a member of the society the petitioner cannot be its employee, by Ext.P22 the first respondent society has put an end to the jural relationship of employer and employee between the parties. In other words, from Ext.P22 it is evident that the first respondent society had treated the petitioner as its employee at least till 16.7.2010. Rule 198(6) of the rules stipulates that every employee of a co-operative society, who is placed under suspension, shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972. The proviso to the said sub-rule states that those persons who are not governed by the said enactment shall be entitled to subsistence allowance at the rate admissible to State Government employees as prescribed under the Kerala Service Rules. In the light of rule 198(6) of the rules in view of the admitted fact that the petitioner was discharging the duties of a Teacher from 1.7.1986 till she was dis-engaged on 16.7.2010, I am of the opinion that the petitioner is entitled to subsistence allowance in terms of rule 198(6) of the Rules. Even assuming for the sake of arguments that as a Teacher the Kerala Payment of Subsistence Act, 1972 will not apply to the petitioner, the proviso to sub-rule W.P(C) NO.26173/2009 -:9:- (6) of rule 198 comes to her rescue by stipulating that the provisions regarding payment of subsistence allowance prescribed under the Kerala Service Rules will apply to employees who are not governed by the Kerala Payment of Subsistence Allowance Act, 1972. Therefore as a person who was being employed by the first respondent society, irrespective of the question whether her appointment was valid or not, I am of the opinion that the petitioner is entitled to be paid subsistence allowance in terms of rule 198(6) of the rules. 6. As noticed above, after the writ petition was filed the first respondent society has disengaged the petitioner from teaching. The reasons for such disengagement are also set out in Ext.P22. The petitioner has not however, chosen to challenge Ext.P22 order in this Court. Unless that order is set aside in appropriate proceedings, this Court will not be justified in directing payment of subsistence allowance beyond that date. In view of the fact that the petitioner has not challenged Ext.P22 in this proceedings I do not propose to go into the validity of Ext.P22 at this stage. I accordingly dispose of the writ petition with the following directions: The first respondent shall pay to the petitioner within W.P(C) NO.26173/2009 -:10:- one month from the date of receipt of a certified copy of this judgment arrears of subsistence allowance calculated at the applicable rates after giving credit to the sum of Rs.86,563/- already paid on that count pending the writ petition. The contentions of both parties on the applicability of rule 16(2) as well as the validity of Ext.P22 are kept open to be decided in other appropriate proceedings. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.26173 of 2009 ---------------------------- JUDGMENT 23rd March, 2011