IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 WP(C).No. 1820 of 2006(N) ----------------------------------- PETITIONER(S): ---------------------- C. MUKUNDAN, S/O. GOPALAN, CHATHANADATH HOUSE, ANDALOOR, PALAYAD P.O., THALASSERY. BY ADV. SRI.K.PRAVEEN KUMAR RESPONDENT(S): ------------------------ 1. STATE REP. BY THE SECRETARY CO-OPERATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REGISTRAR, CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KANNUR. 4. THE ARBITRATOR (ASST.REGISTRAR, CO-OPERATIVE SOCIEITIES (GENERAL), THALASSERY. 5. THE THALASSERY CO-OPERATIVE TOWN BANK LTD., (NO.F.1263) REP. BY ITS GENERAL MANAGER, THALASSERY, KANNUR DISTRICT. 6. THE PRESIDENT, BOARD OF MANAGEMENT THE THALASSERY CO-OPERATIVE TOWN BANK LTD. (NO.F.1263), THALASSERY, KANNUR DISTRICT. BY GOVT. PLEADER SRI.NOBLE MATHEW. R5 BY ADV. SRI.P.V.SURENDRANATH SRI.V.A.ABDUL JALEEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU WP(C).No. 1820 of 2006(N) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENT DTD 15/02/1985. P2 : COPY OF THE PROCEEDINGS OF THE BOARD OF MANAGEMENT DTD 13/03/1985. P3 : COPY OF THE DECISION OF THE JOINT REGISTRAR DTD 30/07/1993. P4 : COPY OF THE PROCEEDINGS OF THE ADMINISTRATOR DTD 26/06/1992. P5 : COPY OF THE PROCEEDINGS OF THE PRESIDENT (TELLICHERRY CO-OP: TOWN BANK LTD) DTD 13/07/1992. P6 : COPY OF THE PLAINT IN ARC 9/92. P7 : COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT. P8 : COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENT DTD 15/07/1993. P9 : COPY OF THE ARGUMENT NOTE FILED BY THE PETITIONER DTD 18/08/2005. P10: COPY OF THE JUDGMENT IN AP 75/02 DTD 30/09/2005. RESPONDENT'S EXHIBITS : 5TH RESPONDENT'S EXHIBITS : R5(a) : COPY OF THE PROCEEDINGS OF THE BOARD OF DIRECTORS / MANGERMENT. //TRUE COPY// P.A TO JUDGE. STU S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.1820 OF 2006 ---------------------------------------------- Dated this the 31st day of October, 2011 JUDGMENT The petitioner was an employee of the 5th respondent Co- operative bank. He was given promotion as Internal Auditor/Accountant on 1.8.1984. Disciplinary proceedings were initiated against the petitioner and as a punishment he was reverted to the post of Senior Clerk. Subsequently, an Administrator took the charge of the Society in the place of the elected members pursuant to proceedings under the Co-operative Societies Act. The Administrator took the view that in view of the fact that the punishment of reversion to the post of Senior Clerk was without specifying any period, the period of punishment would only be six months. Therefore, with effect from the date when six months of punishment was completed, the Administrator promoted the petitioner by Ext.P4 order. But, after the elected committee again took over charge of the Society, by Ext.P5 order, the Committee cancelled the promotion and directed the petitioner to continue as Senior Clerk. The petitioner W.P.(C)No.1820/06 2 filed ARC No.9 of 1992 under Section 69 of the Kerala Co- operative Societies Act. By Ext.P7 order, the arbitrator allowed the ARC declaring that Ext.P4 decision of the Administrator would hold good and the petitioner is entitled to all consequent benefits, setting aside Ex.P5 order. The Society challenged the same before the Kerala Co-operative Tribunal in Appeal No.75 of 2002. The Tribunal, by Ext.P10 order, reversed the decision holding that no ARC would lie, insofar as essentially the issue involved is a challenge against disciplinary proceedings. The petitioner has filed this writ petition challenging the same seeking the following reliefs: “a) Issue a writ of certiorari calling for the records relating to Ext.P10 and quash the original of the same. b) Declare that the promotion given to petitioner (by restoring his original position) as per Ext.P4 is perfectly legal and within the powers of Administrator. c) Declare that the entire disciplinary proceedings initiated by the respondent bank against the Petitioner is highly illegal, arbitrary and vitiated by malafides”. 2. I have heard both sides. 3. Although Ext.P10 order was passed on 30.9.2005, which is after the amendment to Section 69 of the Kerala Co- W.P.(C)No.1820/06 3 operative Societies Act came into effect from 2.1.2003, essentially the Tribunal was considering the maintainability of ARC 9 of 1992 in respect of a service matter relating to an employee of a Co-operative Society. A Division Bench of this Court had in Trivandrum Co-operative Urban Bank v. Joint Registrar of Co-operative Societies [2001(1) KLT 99] held that the dispute concerning disciplinary proceedings could not be characterised as a matter touching the business, constitution, establishment or management of the Society under Section 2(i) so as to bring it within the ambit of Section 69 of the Act. That decision would apply to matters relating to promotion also insofar as promotion also would not be a matter touching business, constitution, establishment or management of the Society under Section 2(i) in the same way disciplinary proceedings are. That being so, even if the question involved in the ARC was promotion and may not be strictly disciplinary proceedings still the position of law would be the same. Therefore, Ext.P10 cannot be stated to be a wrong order, insofar as at the relevant time the order in the ARC was passed on 31.7.2002 the law was to the effect that W.P.(C)No.1820/06 4 no ARC would lie under Section 69 in respect of disputes relating to service matters of an employee of a Co-operative Society. Therefore, for that reason, I must uphold Ext.P10 order. 4. But, I must also consider the effect of amendment to Section 69 (2) (d)of the Kerala Co-operative Societies Act with effect from 2.1.2003 by which any dispute arising in connection with employment of officers and servants of the different classes of societies specified in sub section 1 of Section 80 including their promotion and inter se seniority has also been brought within the ambit of Section 69. Therefore, even if I uphold Ext.P10, the petitioner has to be given an opportunity to file a fresh compliant under Section 69, perhaps with a petition to condone delay in filing the same. But, the petitioner has already retired from service. That being so, I think that it would be unjust to direct the parties to start all over afresh for resolution of the dispute. If the Assistant Registrar had decided the ARC today, it would have been within the jurisdiction, in view of the amendment with effect from 2.1.2003. Therefore, I am of opinion that it is only W.P.(C)No.1820/06 5 appropriate that the Tribunal considers the issue on merits as if the Assistant Registrar had passed orders in the ARC with jurisdiction in order to avoid multiplicity of the proceedings on the same subject matter. 5. In the above circumstances, Ext.P10 order is quashed. The Kerala Co-operative Tribunal is directed to reconsider the issue on merits regarding the validity of Ext.P5 order passed by the Society as if the ARC would lie under Section 69 of the Act as amended with effect from 2.1.2003. The Tribunal shall pass fresh orders in the matter, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.1820/06 6 W.P.(C)No.1820/06 7