Kerala High Court
The Kanjoor Service Co-Operative Bank ... vs Joint Registrar Of Co-Operative ... on 21 August, 1998
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 8TH DAY OF JUNE 2016/18TH JYAISHTA, 1938
WP(C).No. 26238 of 2011 (D)
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PETITIONER :
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THE KANJOOR SERVICE CO-OPERATIVE BANK LTD.NO.454,
REPRESENTED BY PRESIDENT, KANJOOR P.O.
ERNAKULAM - 683 575.
BY ADVS.SRI.P.N.MOHANAN
SRI.K.N.AJAYAN
RESPONDENT(S) :
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1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)
ERNAKULAM, PIN - 682 011.
2. C.C.VARGHESE,
CHERAYATH HOUSE,
KANJOOR P.O., ALUVA- 683 575.
R1 BY GOVT. PLEADER SRI. MANZOOR ALI
R2 BY ADV. SRI.GEORGE POONTHOTTAM
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 20-05-2016, THE COURT ON 08-06-2016 DELIVERED THE
FOLLOWING:
Mn
...2/-
WP(C).No. 26238 of 2011 (D)
APPENDIX
PETITIONER(S) EXHIBITS :
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EXHIBIT P1 A TRUE COPY OF THE POST SANCTION ORDER DATED 21/8/1998 OF
THE JOINT REGISTRAR.
EXHIBIT P2 A TRUE COPY OF THE REPORT OF THE SUB COMMITTEE DATED
16/4/2011.
EXHIBIT P3 A TRUE COPY OF THE MEMO DATED 19/4/2011.
EXHIBIT P4 A TRUE COPY OF THE REPLY DATED 23/4/2011 OF THE 2ND
RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE COMMUNICATION DATED 2/5/2011.
EXHIBIT P6 A TRUE COPY OF THE REQUEST DATED 11/5/2011 OF THE 2ND
RESPONDENT.
EXHIBIT P7 A TRUE COPY OF THE CIRCULAR NO.10/05 OF THE JOINT REGISTRAR.
EXHIBIT P8 A TRUE COPY OF THE NOTICE DATED 19/9/2011.
EXHIBIT P9 A TRUE COPY OF THE ONE OF THE LEDGER FOLIO RECEIVED FROM
THE PUBLIC ISSUED IN THE NAME OF SMT. GEENA SURESH TO
COLLECT DEPOSITS IN CALLER DEPOSITS SCHEME OF THE 2ND
RESPONDENT.
EXHIBIT P10 A TRUE COPY OF THE COMPLAINT DATED 16.5.2011 FILED BY THE
2ND RESPONDENT BEFORE THE JOINT REGISTRAR.
EXHIBIT P11 A TRUE COPY OF THE DEPOSIT STATEMENT ISSUED BY THE 2ND
RESPONDENT IN HIS OWN HAND WRITING.
EXHIBIT P12 A TRUE COPY OF THE RELEVANT EXTRACT OF THE ADMISSION
REGISTER.
EXHIBIT P13 A TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 2ND
RESPONDENT.
RESPONDENTS' EXHIBITS :
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EXHIBIT R2(a) TRUE COPY OF THE RECEIPT DATED 2-5-2011.
EXHIBIT R2(b) TRUE COPY OF THE COMMUNICATION NO. CRP(2) 10484/09/L.DIS
DATED 19/11/2009.
EXHIBIT R2(c) TRUE COPY OF THE GOVERNMENT ORDER DATED 13-11-2009.
EXHIBIT R2(d) TRUE COPY OF THE COMPLAINT FILED BEFORE THE IST
RESPONDENT DATED 16-5-2011.
EXHIBIT R2(e) TRUE COPY OF THE SUBMISSION DATED 25-8-2011.
//TRUE COPY//
P.S. TO JUDGE
Mn
"C.R"
P.V.ASHA, J.
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W.P(C) No.26238 of 2011-D
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Dated this the 8th day of June, 2016
JUDGMENT
The issue arising in this case is whether the Joint Registrar can, in exercise of his power under Rule 176 of the Kerala Co- operative Societies Rules, 1969 (hereinafter referred to as `the Rules' for short), interfere with the disciplinary action against an employee of a Co-operative Bank when there is a specific forum provided under Section 69 of the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as `the Act' for short).
2. The petitioner is a Co-operative Bank registered under the Act. The 2nd respondent was employed on contract basis as a collection agent since March, 1997. The case of the petitioner is that, on receipt of complaints against the 2nd respondent by the Managing Committee, an enquiry was conducted by the Sub Committee and based on Ext.P2 report of that Sub Committee, the 2nd respondent was removed from service on 2.5.2011 as per Ext.P5 order after issuing a memo Ext.P3 to which the 2nd respondent filed a reply Ext.P4. W.P(C) No.26238 of 2011-D 2 According to the petitioner, the procedure for removal provided under Rule 198 of the Rules is not applicable to casual/contract employees. The 2nd respondent filed a complaint before the Joint Registrar seeking his intervention to reinstate him in service. Thereupon the Joint Registrar of Co-operative Societies issued a notice Ext.P8 dated 19.09.2011 directing the bank to appear before the Joint Registrar and to offer its explanation against the proposal to cancel its resolution removing the 2nd respondent from service. It was stated therein that immediately after the 2nd respondent's removal, 3 fresh hands were engaged on provisional basis as collection agents and the removal of the 2nd respondent from service was ordered without conducting a domestic enquiry. This Writ Petition was filed at that stage.
3. It is the case of the petitioner that the Joint Registrar of Co-operative Societies does not have any jurisdiction to enter into the validity of removal from service of its employees once Arbitration Courts were constituted under Section 70A of the Act and when Section 69(2)(d) provides that, any dispute in connection with employment of servants of Co-operative Societies have to be decided by the Arbitration Courts only. The petitioner relied on the judgment of this Court reported in W.P(C) No.26238 of 2011-D 3 Prakasini v. Joint Registrar [2006(1) KLT 199] approved in Ravindran v. State of Kerala [(2007) 3 KLT 558] and submitted that there is an implied ouster of jurisdiction in this matter for the Joint Registrar to take action under Rule 176.
4. But according to the 2nd respondent, operation of Rule 176 of the Rules is not restricted even after Arbitration Courts are established under Section 70A of the Act. According to him, he is a contract employee and his removal was ordered without any reason and without conducting any enquiry; the authority of the Registrar is not taken away by way of amendment to the Act; the decisions relied on by the petitioner bank relates to complex issues of inter se seniority of employees of Co-operative Societies and cannot be relied on in a case like this where the 2nd respondent's complaint was against his removal in violation of Rules and without even giving him an opportunity of hearing. On receipt of his complaint, the Joint Registrar had deputed a Unit Inspector to look into his complaint and it was after obtaining the report from him that, the Joint Registrar issued the show cause notice. It was also stated that, the petitioner filed this writ petition challenging the show cause notice and hence the Writ Petition is not maintainable.
W.P(C) No.26238 of 2011-D 4
5. The 1st respondent has also filed a counter affidavit justifying the action of the Joint Registrar in issuing the show cause notice stating that, removal was ordered without conducting any enquiry, that too after obtaining a report, and the 1st respondent had only issued a show cause notice calling for an explanation from the petitioner bank. Further it is stated that, the Co-operative Arbitration Court cannot deal with a dispute in respect of a collection agent, since collection agent does not come under sub section 1 of Section 80 and the petition filed by the 2nd respondent will not come under the definition of disputes to be dealt with by the Arbitration Court. Hence it was stated that the 1st respondent has got the power to decide the issue involved. It was also stated that the Co-operative Arbitration Court is to deal with issues which arise in connection with employment of officers and servants of Co-operative Societies, appointed under sub section 1 of Section 80 of the Act.
6. In the above circumstances, it has to be examined whether there is concurrent jurisdiction for the Arbitration Court as well as the Joint Registrar over the service disputes between the employees/persons engaged for doing the work in the Co- operative Societies. Rule 176 of the Rules reads as follows: W.P(C) No.26238 of 2011-D 5
"176. Registrar's power to rescind resolution:- Notwithstanding anything contained in the bye-laws of a registered society, it shall be competent for the Registrar to rescind any resolution of any meeting of any society or the committee of any society if it appears to him that such resolution is ultra vires of the objects of the society, or is against the provisions of the Act, Rules, Bye-laws or of any direction or instructions issued by the Department, or calculated to disturb the peaceful and orderly working of the society or is contrary to the better interest of the society."
Rule 176 empowers the Registrar to rescind any resolution of any meeting of any society or the committee of any Society if it appears to him that such resolution is ultra vires the objects of the society, or is against the provisions of the Act, Rules, Bye- laws or of any direction or instructions issued by the Department, or calculated to disturb the peaceful and orderly working of the society or is contrary to the better interest of the society. Therefore, if the society has taken a resolution against the provisions of the Act, Rules or bye-laws or any direction or instructions, the Registrar is competent to rescind the resolution. But the question is whether that power can be invoked at any time irrespective of the availability of a separate statutory remedy against it. In this case, contention of the 2nd respondent is that, punishment was imposed without conducting an enquiry, W.P(C) No.26238 of 2011-D 6 in violation of Rule 198. At the same time it is pertinent to note that, Chapter IX of the Act deals with settlement of disputes. As in the case of Rule 176, Section 69 also starts with a non obstante clause and provides that disputes between society and any officer, agent or employee, past officer, past agent or past employee, between a member of the society, among members of the society shall be referred to the Co-operative Arbitration Court constituted under Section 70A in the case of non monetary disputes and to the Registrar in the case of monetary disputes. Clause h of sub section 1 of Section 69 provides that the monetary disputes shall be referred to the Registrar and the cases of non monetary disputes, to the Arbitration Court. Section 69 further provides that, no other court or authority shall have jurisdiction to entertain any suit or other proceedings in respect of such disputes. `Dispute' is defined under sub section 2 of Section 69 as follows:
"For the purpose of sub-section (1), the following shall also be deemed to be disputes, namely:-
(a) a claim by the society for any debt or demand due to it from a member or the nominees, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;
(b) a claim by a surety against the principal debtor, where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor, as a result of the default W.P(C) No.26238 of 2011-D 7 of the principal debtor, whether such debt or demand is admitted or not;
(c) any dispute arising in connection with the election of the Board of Management or any officer of the society;
Explanation:- A dispute arising at any stage of an election commencing from the convening of the general body meeting for the election shall be deemed to be a dispute arising in connection with the election;
(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." But the disputes provided in clauses (a) to (d) of subsection 2 of Section 69 are only those disputes other than what is provided in sub section 1 thereof which reads as follows:
(1) Notwithstanding anything contained in any law for the time being in force, if a dispute arises:-
(a) among members; past members and persons claiming through members, past members and deceased members; or
(b) between a member, past member or person claiming through a member, a past member or deceased member and the society, its committee or any officer, agent or employee of the society; or
(c) between the society or its committee and any past committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society; or
(d) between the society and any other society; or
(e) between a society and the members of a society affiliated to it; or
(f) between the society and a person, other than a member of the society, who has been granted a loan by the society or with whom the society has or had business transactions or any person claiming through such a person; or
(g) between the society and a surety of a member, past member, deceased member or W.P(C) No.26238 of 2011-D 8 employee or a person, other than a member, who has been granted a loan by the society, whether such a surety is or is not a member of the society; or
(h) between the society and a creditor of the society; such dispute shall be referred to the Co-operative 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 dispute and no other Court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute.
(emphasis supplied)
7. Therefore the jurisdiction to decide the disputes is not restricted to those disputes provided in clauses (a) to (d) alone of subsection 2 of Section 69. An inclusive meaning given to the term dispute does not in any manner take away the jurisdiction to decide the disputes covered by subsection 1 of Section 69. The term `employee' occuring in clause c of subsection 1 of Section 69 cannot be interpreted to mean an employee envisaged under Section 80 of the Act and included in the Appendix. As long as the petitioner employer and the 2nd respondent do not dispute that the 2nd respondent was employed under them as Collection agent, the complaint of the 2nd respondent against his removal or disengagement can only be one coming under S.69(1)(c) of the Act, which is necessarily to be decided by the Arbitration Court. The collection agent was employed by the 1st respondent. He was W.P(C) No.26238 of 2011-D 9 removed from the society. He compalins that an inquiry was not conducted. His engagement and disengagement are not disputed. Therefore, by virtue of Section 69, which starts with the non obstante clause providing that the disputes as mentioned therein has to be referred to Arbitration Court/Registrar in respect of nonmonetary/monetary disputes and hence barring the authority of any other forum to deal with those disputes, the removal of the 2nd respondent is a matter which requires to be dealt with by the Arbitration Court and the Joint Registrar has no authority to deal with the same in any manner because of the specific ouster contained in Section 69(1) of the Act. At any rate, the Joint Registrar cannot in exercise of his powers conferred under the Rules interfere with or deal with a dispute overriding the exclusion of his authority by virtue of the provisions contained in the Act, by adopting summary procedure under Rule 176, by rescinding resolution of the petitioner Co-operative Societies.
8. Yet another point to be considered, which is relevant, is the reason stated in the counter affidavit of respondents 1 and 2, for invoking the powers under Rule 176. According to them, the dispute in respect of a contract employee does not come W.P(C) No.26238 of 2011-D 10 under the purview of the Arbitration Court under Section 69 since contract employee is not an employee coming under Section 80(1) of the Act. I have in the judgment dated 29.07.2015 in W.P(c) No.17695/2014 held that, a dispute with respect to the service conditions of a contract employee will come within the jurisdiction of the Arbitration Court. In that case, he came under clause (c) as well as (f) of sub section 1 of Section 69 of the Act. That judgment is upheld by a Division Bench in its judgment dated 1.2.2016 in W.A No.2454 of 2015. In this case, the dispute of the 2nd respondent comes under clause (c) of Section 69(1), as already found in para.7, the jurisdiction of Arbitration Court is not confined to the disputes under Subsection 2 alone. In this context it is also relevant to note that the issue as to the jurisdiction of Joint Registrar to entertain a petition under Rule 176 of the Rules in respect of the disciplinary action initiated against an employee was considered by this Court in the judgments in Jayarani T. v. Assistant Registrar of Co-operative Societies [2016 (2) KLJ 446] and Kerala State Co-op.Agrl. and R.D.B Ltd. v. Joint Registrar of Co-op. Societies [2016 (1) KLT 572], wherein it was held that Rule 176 is an omnibus provision and when there is a W.P(C) No.26238 of 2011-D 11 specific forum for adjudicating service disputes, a Joint Registrar cannot invoke its powers under Rule 176.
9. The learned counsel for the 2nd respondent relied on the judgments of the Apex Court in Rajasthan SRTC v. Bal Mukund Bairwa [(2009) 4 SCC 299] (paragraphs 36, 37 and 42) and Association of Milma Officers v. State of Kerala [2015 (1) KLT 849(L.B)], Rameshan v. Jayavally [2007(2) KLT 325] and contended that, even when a separate forum is provided, there is no bar in invoking the powers under Rule 176. But I find that the circumstances under which those judgments were rendered were entirely different. In all those cases, the issues arose or considered were not similar. Therefore, reliance on those judgments cannot be made in the present case.
10. The next question to be considered is whether this Court can interfere with the show cause notice impugned in the Writ Petition. This Court has already stayed the proceedings pursuant to the show cause notice by its order dated 03.10.2011, while admitting this Writ Petition. Now that the contentions of all the parties are known to each other from the pleadings in this Writ Petition. Therefore, there is no meaning in sending the matter back to the Joint Registrar. Even otherwise, I have W.P(C) No.26238 of 2011-D 12 already found that the proceedings are initiated without jurisdiction.
Under the above circumstances, I quash Ext.P8 proceedings of the Joint Registrar proposing to rescind the resolution of the petitioner.
This Writ Petition is allowed accordingly.
Sd/-
(P.V.ASHA, JUDGE) rtr/