Kerala High Court
Beena K vs The Arur Service Co-Operative Urban ... on 30 November, 2021
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
WA NO. 1308 OF 2021
AGAINST THE ORDER/JUDGMENT IN WP(C) 13728/2021 OF HIGH COURT OF
KERALA
APPELLANT:
BEENA K
AGED 49 YEARS
PADINJAREMUTHUVAT HOUSE, PURAMERI, VADAKARA, KOZHIKODE.
BY ADVS.
P.P.JACOB
MARIYAM JACOB
RESPONDENTS:
1 THE ARUR SERVICE CO-OPERATIVE URBAN SOCIETY LTD NO.2745
ARUR P.O., (VIA) KAKKATTIL, KOZHIKODE-673507,
REPRESENTED BY ITS SECRETARY.
2 THE ASSISTANT REGISTAR OF CO-OPERATIVE SOCIETIES (G),
VADAKARA, KOZHIKODE, PIN-673101.
3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G),
KOZHIKODE, OFFICE OF THE JOINT REGISTRAR OF CO-
OPERATIVE SOCIETIES, PUTHIYARA, KOZHIKODE-673004.
4 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT, CO-
OPERATIVE (C) DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
BY ADV SOUMIYA C.D
SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30.11.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA NO. 1308 OF 2021
2
ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
===================================
W.A.No.1308/2021
(arising out of the judgment in WP(C) No.13728/2021 dated 08/09/2021)
=========================================
Dated this the 30th of November, 2021
JUDGMENT
Alexander Thomas, J.
The appellant herein has filed the instant Writ Petition Civil, WP© No.13728/2019 with the following prayers:
(1) To call for the records and files relating to WP(C) No.13728/2021 of the learned Single Judge and pursue the same.
(2) Allow the appeal and set aside the impugned judgment and allow the writ petition.
(3) Issue such other reliefs which may deem fit and proper in the facts and circumstances of the writ appeal.
2. The learned Single Judge after hearing the counsel for the writ petitioner and the learned Sr.Government Pleader appearing for the official respondents has rendered the impugned judgment on 08.09.2021 ordering that the writ petition will stand disposed of with the direction that it is for the petitioner to avail statutory remedy under Section 69(2)(d) of the Kerala Co-operative Societies Act, 1969 and until then, the interim order earlier granted by this Court in the above WP(C) on 09.07.2021 shall continue for a period of 45 days within which time, the petitioner could avail alternative remedy etc. The writ petitioner has now filed the instant intra-Court appeal under Section 5(1) of the Kerala High Court Act, being aggrieved by the impugned judgment inasmuch as it has not considered the merits of the WA NO. 1308 OF 2021 3 various contentions urged by the petitioner.
3. Heard Sri.P.P.Jacob, learned Counsel appearing for the appellant in the W.A./Petitioner in the WP(C), Smt. C.D.Soumiya, learned Counsel appearing for R1 (Arur Service Co-operative Bank) and Sri. B.Unnikrishna Kaimal, learned Sr.Government Pleader appearing for official respondents 2 to 4 in the WA.
4. According to the appellant/writ petitioner, she was engaged as a daily deposit collection agent with effect from 15.11.2006 in the Service of the 1st respondent Co-operative Society Bank and she had continued under the 1st respondent for more than 12 years. Further that, as per Ext.P3 G.O. (MS) No.87/2015/CD dated 15.07.2015, the competent authority of the State Government Co-operation Department had ordered that 25% of the post of Peon in Co-operative Society is set apart and reserved to be filled up by promotion from eligible Daily Deposit Collection Agents. Further that the Board of Directors of the 1 st respondent Co-operative Society has rendered Ext.P1 Resolution as early as on 7.02.2018, and have decided to promote the appellant as Peon with effect from 17.02.2018 and this, according to the appellant is on the basis of the norms laid down by the Government in Ext.P3 G.O. dated 15.07.2015. Further, according to the appellant, she had continued in the post of Peon with effect from 01.03.2018 for the last more than three years. Further, it is averred that the 3rd respondent Joint Registrar of Co-operative Societies, Kozhikode has WA NO. 1308 OF 2021 4 now issued the impugned Ext.P9 proceedings dated 29.04.2021 purportedly under Rule 176 of the Kerala Co-operative Societies Rules, rescinding Ext.P3 Resolution on the ground that it is contrary to the objects and conclusions of the Acts & Rules etc. The appellant would contend that the 3rd respondent Joint Registrar has acted without jurisdiction inasmuch as the amendment has been made to Section 69 of the Kerala Co-operative Societies Act with effect from 02.01.2003 and it is settled by this Court in decisions as in Prakasini v. Joint Registrar, 2006(1) KLT 199, Raveendran V. State of Kerala, 2007(3) KLT 558 (DB), that any disputes arising in connection with the employment of in-service officers and servants of different Co-operative Societies including their promotion, in respect of their seniority is to be decided by the Arbitration Court constituted in terms of Section 69 of the amended provisions of the Kerala Co-operative Societies Act 1969 and that the Registrar/Notified Registrar like the Joint Registrar will not have jurisdiction to decide disputes in that regard etc. It is pointed out that the learned Single Judge had earlier granted interim order in the above WP(C) on 09.07.2021 and thereafter has relegated the writ petitioner to seek the remedy under Section 69(2)(d) of the Kerala Co-operative Societies Act as per impugned Judgment in the WP(C) rendered on 08.09.2021 and that too without examining the main contentions of the writ petitioner that the 3 rd respondent Joint Registrar has no jurisdiction to pass an order in the nature of Ext.P9 purportedly WA NO. 1308 OF 2021 5 under Rule 176 of the Kerala Co-operative Societies Rules to rescind Ext.P3 Resolution in view of the above said dictum laid down by Division Bench in the afore cited reported case laws etc. Further the crucial aspect that the 1 st respondent Co-operative Society had made promotions in favour of the appellant on the basis of Ext.P3 G.O.(MS)No.87/2015/CD dated 15.07.2015, has not been reckoned by the learned Single Judge and hence the very finding of the 3 rd respondent Joint Registrar in Ext.P9 that the promotions made in respect of Ext.P1 resolution is against the objects and provisions of the Kerala Co-operative Societies Act and the Rules is without any foundation etc.
5. We have heard the parties. It is seen that none of the vital contentions raised by the appellant has even been remotely considered by the 3rd respondent Joint Registrar in issuing Ext.P9 purportedly under Rule 176 to rescind the above resolution in question. The impact of the dictum laid down by the Division Bench of this Court in the afore cited reported decisions in cases as in Prakasini v. Joint Registrar, 2006(1) KLT 199, Raveendran V. State of Kerala, 2007(3) KLT 558 (DB), has not been even considered by the 3rd respondent Joint Registrar. In other words, the 3rd respondent Joint Registrar has not considered as to whether he has jurisdiction in the matter to pass proceedings in the nature of Ext.P9 by resorting to the provisions contained in Rule 176 of the Kerala Co-operative WA NO. 1308 OF 2021 6 Society Rules in view of the amendments made to Section 69 of the Kerala Co-operative Societies Act, etc. So also, the issue as to whether the impugned promotion as per Ext.P1 has been made on the basis of Ext.P3 norms issued by the Government has also not been remotely considered by the 3rd respondent Joint Registrar. The upshot of the above discussion is that the matter would require serious reconsideration at the hands of the 3rd respondent Joint Registrar and that the matter would warrant a remit. For effectuating such a remit, it is ordered that the impugned Ext.P9 proceedings dated 29.04.2021 issued by the 3 rd respondent Joint Registrar will stand set aside and the matter in relation thereto will stand remitted to the 3rd respondent Joint Registrar for consideration and decision afresh. The appellant and the 1st respondent Co-operative Society may give their written submissions in the matter before the 3 rd respondent without much delay preferably within a period of two weeks from the date notified for receiving a certified copy of this judgment. Thereafter, the 3 rd respondent Joint Registrar will afford reasonable opportunity of being heard to the appellant as well as the 1 st respondent Co-operative Society and will initially decide the issue as to whether he/she has jurisdiction and competence to take resort to the provisions contained in Rule 176 of the Kerala Co- operative Society Rules, in view of the dictum laid down by this Court in decisions as in Prakasini v. Joint Registrar, 2006(1) KLT 199, Raveendran V. State of Kerala, 2007(3) KLT 558 (DB). So also, the 3rd WA NO. 1308 OF 2021 7 respondent will consider the issue as to whether the promotions made in favour of the appellant as per Ext.P1 resolution is on the basis of Ext.P3 norms framed by the Government etc. Decision in this regard shall be duly rendered by the 3rd respondent Joint Registrar by passing a well reasoned order, without much delay, preferably within a period of two months from the date of filing of additional representations by the appellant and the 1 st respondent and after affording reasonable opportunity of being heard to the appellants. Until then, appellant shall be permitted to discharge the duties and functions of Peon on the basis of promotion she has secured on the basis of Ext.P1 resolution. The impugned directions and orders of the learned Single Judge as per the impugned judgment rendered on 08/12/2021 in WP(C) No.13728/2021 will stand modified and substituted as above.
With these observations and directions, the above Writ Appeal will stand finally disposed of.
Sd/-
ALEXANDER THOMAS JUDGE Sd/-
VIJU ABRAHAM JUDGE Nsd //True copy//PA to Judge