Kerala High Court
Cherunniyoor Service Co-Operative ... vs The Co-Operative Arbitration Court on 30 November, 2020
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942
WP(C).No.9487 OF 2018(I)
PETITIONER/S:
CHERUNNIYOOR SERVICE CO-OPERATIVE BANK LTD.NO.726,
CHERUNNIYOOR.P.O,VARKALA,THIRUVANANTHAPURAM,REPRESENT
ED BY ITS SECRETARY.
BY ADVS.
SRI.B.S.SWATHI KUMAR
SMT.ANITHA RAVINDRAN
SRI.HARISANKAR N UNNI
SMT.T.RESHMA
SMT.S.SIKKY
RESPONDENT/S:
1 THE CO-OPERATIVE ARBITRATION COURT
THIRUVANANTHAPURAM,PIN-695001.
2 L.LISSYMOL
RESIDING AT
PUNNAVILA,VADASSERIKONAM,VARKALA,THIRUVANANTHAPURAM,P
IN-695141.
R1 BY ADV. SRI.B.KRISHNA MANI
R2 BY ADV. SRI.J.JAYAKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.11.2020, ALONG WITH WP(C).17580/2020(V), WP(C).17834/2020(D),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).9487/2018(I) & CONN.CASES
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942
WP(C).No.17580 OF 2020(V)
PETITIONER/S:
CHERUNNIYOOR SERVICE CO-OPERATIVE BANK LTD.NO. 726,
726, CHERUNNIYOOR P O, VARKALA, THIRUVANANTHAPURAM,
REPRESENTED BY ITS PRESIDENT.
BY ADVS.
SRI.B.S.SWATHI KUMAR
SMT.ANITHA RAVINDRAN
SRI.HARISANKAR N UNNI
SMT.P.S.BHAGYA SURABHI
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, CO-
OPERATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM
PIN- 695001.
2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL)KAITHAMUKKU, THIRUVANANTHAPURAM, PIN - 695024,
3 L. LISSYMOL
RESIDING AT PUNNAVILA, VADASSERIKONAM, VARKALA,
THIRUVANANTHAPURAM, PIN - 695141.
4 THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES(G)SAHAKARANA BHAVAN, VARKALA,
THIRUVANANTHAPURAM - 695141.
R3 BY ADV. SRI.J.JAYAKUMAR
OTHER PRESENT:
GP SRI HARISH KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.11.2020, ALONG WITH WP(C).9487/2018(I), WP(C).17834/2020(D), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942
WP(C).No.17834 OF 2020(D)
PETITIONER/S:
ANITHA KUMARI AGED 50 YEARS
SECRETARY, CHERUNNIYOOR SERVICE CO-OPERATIVE BANK LTD.
NO.726, CHERUNNIYOOR P. O., VARKALA, THIRUVANANTHAPURAM,
RESIDING AT KAMUKUVILA VEEDU, MANAMPOOR P. O., VARKALA,
THIRUVANANTHAPURAM DISTRICT, PIN - 695 142.
BY ADVS.
SRI.T.R.HARIKUMAR
SRI.ARJUN RAGHAVAN
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO
GOVERNMENT, CO-OPERATION (C) DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL)THIRUVANANTHAPURAM - 695 001.
3 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL)CHIRAYINKEEZHU, THIRUVANANTHAPURAM
- 695 304.
4 THE BORAD OF DIRECTORS OF THE CHERUNNIYOOR SERVICE CO-
OPERATIVE BANK LTD. NO.726
REPRESENTED BY ITS PRESIDENT, CHERUNNIYOOR P. O., VARKALA,
THIRUVANANTHAPURAM, PIN - 695 142.
5 L. LISSYMOL
PUNNAVILA VEEDU, VADASSERIKONAM P. O., THIRUVANANTHAPURAM,
PIN - 695143.
R4 BY ADV. SRI.B.S.SWATHI KUMAR
R4 BY ADV. SMT.ANITHA RAVINDRAN
R4 BY ADV. SRI.HARISANKAR N UNNI
R5 BY ADV. SRI.J.JAYAKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.11.2020, ALONG WITH WP(C).9487/2018(I), WP(C).17580/2020(V),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).9487/2018(I) & CONN.CASES
4
JUDGMENT
[ WP(C).9487/2018, WP(C).17580/2020, WP(C).17834/2020 ] Dated this the 30th day of November 2020
1. The captioned writ petitions are regarding reinstatement of an employees dismissed from service and challenging order of regularisation of the employee as Secretary with effect from 22.9.2002. Therefore, I hear them together and propose to pass this common judgment.
2. W.P(C) No.9487/2018 is preferred by Cherunniyoor Service Co-operative bank Ltd, whereby orders Exts.P4 and P7 of Co-operative Arbitration Court, Thiruvananthpuram ordering the petitioner to pay subsistence allowance to one L.Lissymol, have been challenged. In W.P.(C) No.17834/2020 titled as Anithakumari Vs. State of Kerala and others and W.P. (C)No.17580/2020 titled as Cherunniyoor Service Co- operative Bank the order dated 12.8.2020, whereby the State Government has ordered the petitioner Society to regularise the service of L.Lissymol who was an employee of the Co-operative society, has been challenged. During WP(C).9487/2018(I) & CONN.CASES 5 the pendency of the writ petitions, the proceedings before the arbitration court in ARC No.56/2015, preferred by Lissymol have been stayed.
3. The facts for disposal of these writ petitions are as follows:
As per the averments in W.P.(C)17834/2020 L.Lissymol was appointed as Peon on 02.07.2002 by the administrative committee managing the affairs then as Junior Clerk as per order dated 22.9.2002 and thereafter promoted as Secretary of the society as per resolution No.7 dated 10.02.2015. During the interregnum, the managing committee requested the Department to grant sanction for regularising the service of Lissymol as Secretary. During the course of an inspection under Section 66 of the Kerala Co-operative Societies Act, it was found that Lissymol had allegedly indulged in misappropriation and tampered with the records including the minutes book etc and as a result, vide order dated 14.12.2012 was placed under suspension.
Vide order dated 3.12.2013 she was terminated from service under Rule 198 of the KCS Rules. Lissymol preferred W.P.(C) No.1143/2014, which was later withdrawn. During the pendency of the ARC, an interim WP(C).9487/2018(I) & CONN.CASES 6 application was submitted by Lissymol for grant of subsistence allowance for the period she remained under suspension till termination, which was ordered to be paid by the arbitration court and upheld in a review petition. It is in this background Society has challenged the impugned order Exts.P4 and P7 in W.P.(C) No.9487/2020, whereby the aforementioned orders have been stayed. During the service tenure of Lissymol, request for regularising the service was submitted, which was dismissed by the Registrar of Co-operative societies vide order dated 29.2.2012. Challenging the above order, Lissymol preferred W.P.(C) No.19595/2012. This Court vide judgment dated 23.11.2017 disposed of the writ petition granting liberty to the petitioner to submit suitable application before the Government, to be considered in accordance with law. This was challenged by the petitioner in writ appeal No.133/2018. The Division Bench disposed of the writ appeal noticing that in pursuance to the direction of the Single Bench a representation dated 15.2.2013 is pending consideration. By supplementation the order of the Single Bench, it was observed that WP(C).9487/2018(I) & CONN.CASES 7 Lissymol should have been given an opportunity of hearing while final order is passed. It is in this background impugned order dated 12.8.2020, Ext.P12 in W.P.(C) No.17580/2020 and Ext.P14 in W.P.(C) No.17834/2020 has been passed for regularising the service.
4. Smt.Anitha Ravindran, learned Counsel appearing for the petitioner society submits that the impugned order dated 12.8.2015 is per se illegal and arbitrary. There cannot be an order of regularisation, particularly when the termination of the petitioner is stated to be pending consideration in ARC No.56/2020. Even ARC No.56/20120 is not maintainable in view of the judgment of the Hon'ble Supreme Court as the administrative committee has no jurisdiction to issue such orders in favour of Lissymol, thus, the question of granting of subsistence allowance also does not arise. It is in this background the aforementioned writ petitions are pending consideration.
5. On the other hand, learned Counsel appearing on behalf of the 2nd respondent submits that Lissymol was made to run from pillar to post to claim her right and protecting her employment in accordance with law. The society would WP(C).9487/2018(I) & CONN.CASES 8 have an opportunity to raise all the objections in the pending ARC as the matter before the Arbitration Court is at a stage of filing counter affidavit. No harm and prejudice is caused in case the pending ARC is ordered to be decided on merits, and urges this Court for dismissal of the writ petition W.P.(C) No.9487/2020 by reviving the order for payment of subsistence allowance. It was also submitted that the Government could not have order for regularisation of the service in view of the fact that the order of termination is pending consideration.
6. I have heard learned Counsel for the parties and appraised the paper books.
7. It is a matter of fact that Lissymol was suspended in the Month of November 2012 and thereafter terminated from service on December 2020 and before the availing of the statutory remedy under the Kerala Co-operative Societies Act, Lissymol had approached this Court under Article 226 of the Constitution of India by filing W.P.(C) No.1143/, which was ultimately withdrawn.
8. Even the question with regard to the maintainability was also raised by the society, which was not discussed in detail WP(C).9487/2018(I) & CONN.CASES 9 and it is in this background sought indulgence of this Court for issuance of appropriate directions before proceeding with the trial of pending ARC.
9. I am of the view that equity will be struck in case an appropriate direction is issued to ARC to proceed with pending ARC 56/2015, and decide in accordance with law, by giving opportunity to all the parties to adduce evidence and material in support of respective cases including objections regarding maintainability or competency of administrative committee in issuing appointment orders. The aforementioned direction is necessitated on account of the fact that challenge to the interim orders ARC, as noticed above has been pending almost five years. However, Government could not have passed the order dated 12.8.2020 ordering regularisation of service of Lissymol, particularly when termination is under challenge. Accordingly, the order dated 12.8.2020 is ordered to be kept in abeyance subject to the outcome of ARC 56/2015. In case Lissymol is able to succeed in the pending ARC, the order dated 12.8.2020 would come into force, however without prejudice to the right of affected party to assail the WP(C).9487/2018(I) & CONN.CASES 10 order, in accordance with law. The writ petitions are disposed of with the above observation. There will also be a direction to the competent authority to decide ARC No.56/2015 within a period of six months from the date of receipt of a copy of this judgment.
Sd/-
AMIT RAWAL JUDGE Jm/ WP(C).9487/2018(I) & CONN.CASES 11 APPENDIX OF WP(C) 9487/2018 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ARC NO.56/2015 FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT DATED 8.10.2015 EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN W.P(C)NO.12560/2014 DATED 29.1.2016 EXHIBIT P3 TRUE COPY OF THE I.A.NO.40/2015 IN ARC.NO.56/2015 FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT DATED -10-2015 EXHIBIT P4 TRUE COPY OF THE I.A.NO.40/2015 IN ARC.NO.56/2015 OF THE 1ST RESPONDENT DATED 26.11.2015 EXHIBIT P5 TRUE COPY OF THE I.A.NO.50/2015 IN I.A.NO.40/2015 IN ARC NO.56/2015 FILED BEFORE THE 1ST RESPONDENT DATED 10.12.2015 EXHIBIT P6 TRUE COPY OF THE OBJECTION IN I.A.NO.40/2015 IN ARC NO.56/2015 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 10.12.2015 EXHIBIT P7 TRUE COPY OF THE ORDER IN I.A.NO.50/2015 IN ARC NO.56/2015 OF THE 1ST RESPONDENT DATED 14.9.2015.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R2(A) TRUE COPY OF RESOLUTION NO.6 DATED 13.8.2011 OF THE PETITIONER BANK ALONG WITH ITS TRUE ENGLISH TRANSLATION.
EXHIBIT R2(B) TRUE COPY OF THE ORDER NO.EM(2)4242/12/L.DIS DATED 29.2.2012 OF THE CO-OPERATIVE REGISTRAR ALONG WITH ITS TRUE ENGLISH TRANSLATION.
WP(C).9487/2018(I) & CONN.CASES 12 EXHIBIT R2(C) TRUE COPY OF THE JUDGMENT DATED 23.11.2017 IN WP(C) NO.19595/2012 OF THIS HON'BLE COURT.
EXHIBIT R2(D) TRUE COPY OF THE JUDGMENT DATED 4.2.2019 IN W.A.NO.133/2018 OF THIS HON'BLE COURT. EXHIBIT R2(E) TRUE COPY OF THE PLAINT IN ARC NO.13/2012 FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.
EXHIBIT R2(F) TRUE COPY OF THE LETTER DATED 1.12.2017 OF THE ASSISTANT REGISTRAR (GENERAL), CHIRAYINKEEZH ALONG WITH ITS TRUE ENGLISH TRANSLATION.
EXHIBIT R2(G) TRUE COPY OF THE CHIEF AFFIDAVIT FILED BY THE 2ND RESPONDENT HEREIN IN ARC NO.56/2015 BEFORE THE 1ST RESPONDENT.
WP(C).9487/2018(I) & CONN.CASES 13 APPENDIX OF WP(C) 17580/2020 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGE OF THE MINUTES BOOK WITH RESOLUTION NO. IX DATED 2.7.2002 EVIDENCING THE TAMPERING WITH THE RESOLUTION.
EXHIBIT P2 TRUE COPY OF THE ORDER NO. CRP(2) 7028/2011 DATED 24.12.2012.
EXHIBIT P3 TRUE COPY OF THE ORDER NO. SC.005/13 DATED 3/12/2013.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WP(C) NO. 1143/2014 EXHIBIT P5 TRUE COPY OF THE AWARD IN ARC NO.13/2012 DATED 20.1.2014.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WP(C) NO.
12560/2014 DATED 29.1.2016.
EXHIBIT P7 TRUE COPY ORDER NO. EM(2) 4242/12/L.DIS DATED 29.02.2012 OF THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WA NO.
133/2018 DATED 04.02.2019 EXHIBIT P8(a) TRUE COPY OF THE ORDER NO.10461/C1/2011/CO-
OP DATED 11.02.2013.
EXHIBIT P9 TRUE COPY OF THE NOTICE CO-C1/1/2018 CO-OP DATED 20.07.2019.
EXHIBIT P10 TRUE COPY OF THE APPEAL DATED 15.12.2017 FILED BY THE 3RD RESPONDENT ALONG WITH THE COVERING LETTER DATED 15.02.2018.
EXHIBIT P11 THE TRUE COPY OF THE REQUEST DATED 24.04.2020 FILED BY THE PETITIONER. WP(C).9487/2018(I) & CONN.CASES 14 EXHIBIT P12 TRUE COPY OF THE ORDER NO. GO(P) 358/2020/CO-OP DATED 12.08.2020 OF THE 1ST RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE ORDER NO.V/769/2020 DATED 21.08.2020 OF THE 4TH RESPONDENT.
EXHIBIT P14 TRUE COPY OF THE PLAINT IN ARC NO.56/2015 FILED BY THE 3RD RESPONDENT DATED 08.10.2015.
WP(C).9487/2018(I) & CONN.CASES 15 APPENDIX OF WP(C) 17834/2020 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE G.O.(P) NO.154/2013/CO-
OP DATED 21.12.2013.
EXHIBIT P2 A TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER.
EXHIBIT P3 A TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE MANAGING COMMITTEE MEETING HELD ON 10.02.2015.
EXHIBIT P4 A TRUE COPY OF THE PROCEEDING NO.V.1112/2015 DATED 20.06.2015 OF THE 3RD RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE ORDER NO.CRP(2) 7028/2011 DATED 24.12.2012 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE ORDER NO.SC.005/13 DATED 03.12.2013 OF THE DISCIPLINARY SUB-
COMMITTEE.
EXHIBIT P7 A TRUE COPY OF THE JUDGMENT DATED 04.11.2015 IN W.P.(C) NO.1143 OF 2014. EXHIBIT P8 A TRUE COPY OF THE AWARD IN ARC NO.13/2012 DATED 20.01.2014 OF THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM. EXHIBIT P9 A TRUE COPY OF THE JUDGMENT DATED 29.01.2016 IN W.P.(C) NO.12560 OF 2014. EXHIBIT P10 A TRUE COPY OF THE JUDGMENT DATED 23.11.2017 IN W.P.(C) NO.19595 OF 2012. EXHIBIT P11 A TRUE COPY OF THE JUDGMENT DATED 04.02.2019 IN W.A. NO.133 OF 2018.
WP(C).9487/2018(I) & CONN.CASES 16 EXHIBIT P12 A TRUE COPY OF THE ORDER NO.10461/C1/2011/CO-OP DATED 11.02.2013. EXHIBIT P13 A TRUE COPY OF THE NOTICE NO.CO-OP-
C1/1/2018-CO-OP. DATED 20.07.2019 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P14 A TRUE COPY OF THE ORDER G.O.(ORD) NO.358/2020/CO-OP. DATED 12.08.2020 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P15 A TRUE COPY OF THE ORDER NO.V/769/2020 DATED 21.08.2020 ISSUED BY THE 3RD RESPONDENT.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R5(A) TRUE COPY OF THE ORDER NO EM(2)4242/12L.DIS DATED 29.2.2012 OF THE CO-OPERATIVE REGISTRAR ALONG WITH ITS TRUE ENGLISH TRANSLATION EXHIBIT R5(B) THE TRUE COPY OF THE ORDER DATED 12.1.2001 OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES ALONG WITH ITS TRUE ENGLISH TRANSLATION EXHIBIT R5(C) TRUE COPY OF THE COMPLAINT DATED 15.12.2012 FILED BY THE 3RD BOARD MEMBERS BEFORE THE PRESIDENT ALONG WITH ITS TRUE ENGLISH TRANSLATION