Kerala High Court
The Thumboor Service Co-Op Bank Ltd No. ... vs N.C. Sobhy on 27 May, 2014
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 20TH DAY OF DECEMBER 2017/29TH AGRAHAYANA, 1939
OP(C).No. 1620 of 2016 (O)
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APPEAL. NO. 9/2016 of KERALA CO-OPERATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
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PETITIONERS :
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1. THE THUMBOOR SERVICE CO-OP BANK LTD NO. 359
THUMBUR, VELLANGALOOR (VIA),
THRISSUR DIST. PIN-680 662.
REPRESENTED BY ITS SECRETARY.
2. MANAGING COMMITTEE OF THUMBUR SERVICE
CO-OPERATIVE BANK LTD. NO. 359, THUMBUR ,
VELLANGALLOOR (VIA) THRISSUR DISTRICT PIN - 680662.
REPRESENTED IN ITS PRESIDENT.
BY ADVS.SRI.P.N.MOHANAN
SRI.C.P.SABARI
RESPONDENTS :
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1. N.C. SOBHY
S/O. N.L. CHAKKAPPAN, AGED 45 YEARS,
RESIDING AT NERAPARAMBIL HOUSE,
P.O., KALLETTUKARA, PIN-680 683, THRISSUR.
2. KERALA CO-OPERATIVE TRIBUNAL,
REPRESENTED BY SECRETARY,
THIRUVANANTHAPURAM-695 001.
R1 BY ADVS. SRI.THAMPAN THOMAS
SRI.B.V.JOY SANKER
SRI.SHAFFIE THOMAS
SRI.K.HAMZA
R2 BY SENIOR GOVERNMENT PLEADER
SRI. PAUL VARGHESE M
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20-12-2017,
ALONG WITH OPC. 1626/2016, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
bp
OP(C).No. 1620 of 2016 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 A TRUE COPY OF THE ORDER DATED 27.5.2014 IN ARC
NO.63/2012.
P2 TRUE COPY OF THE JUDGMENT DATED 24.5.2016. IN APPEAL
NO. 9/2016.
P3 TRUE COPY OF THE ORDER DATED 28.4.2016 OF THE TRIBUNAL
IN UNNUMBERED APPEAL FILED AGAINST INTERIM ORDER IN
ARC NO. 26/2016.
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
C.R.
ALEXANDER THOMAS, J.
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O.P.(C) Nos.1620 & 1626 of 2016
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Dated this the 20th day of December, 2017
JUDGMENT
The first petitioner in these Original Petitions (Civil) is the Thumboor Service Co-operative Bank Ltd. No.359, Thrissur District and the second petitioner is the Managing Committee of the said first petitioner Co-operative Society Bank. It is stated that ARC Nos.63 and 64 of 2012 was filed by the first respondent concerned in these two cases challenging the domestic enquiry initiated against the first respondent concerned and for the alleged misappropriation and the consequential dismissal from service of the respondent incumbent concerned. A preliminary enquiry as to the validity of the domestic enquiry report was raised by the first respondent before the Arbitration Court. The Arbitration Court heard the preliminary issue and by Exhibit- P1 interim orders in these two cases had held that the domestic enquiry officer has conducted the enquiry in a proper manner and that there are no mistakes or flaw in the said report and the natural justice have been complied with. Further it is stated that the first respondent had challenged Exhibit-P1 before the Co-operative Tribunal and the Tribunal by impugned Exhibit-P2 judgment had set aside Exhibit-P1 interim order of the Arbitration Court. It is contended by the petitioner O.P.(C) No.1620 & 1626/16 ::2::
that the award passed by the Arbitration Court under Section 70(1) of the Kerala Co-operative Societies Act, 1969 alone is appealable before the Tribunal and an interlocutory order as the one in Exhibit-P1 in these two cases which is passed under Section 70(2) of the Kerala Co- operative Societies Act is excluded from the purview of Section 82(1)(a)
(e) of the said Act and therefore, it is not appealable under Section 82 before the second respondent Kerala Co-operative Tribunal. In a similar case, the Tribunal as per Exhibit-P3 had refused to interfere on an interim order passed by the Arbitration Court and had returned the appeal memorandum without even numbering it. But, in the instant two cases, the Tribunal has interfered with Exhibit-P1 interim order in these two cases as per the impugned Exhibit-P2 judgments. It is contended that the interference by the Tribunal as against Exhibit-P1 interim order by passing the impugned Exhibit-P2 judgment in both these cases is illegal and without jurisdiction.
2. Heard Sri.P.N.Mohanan, learned counsel appearing for the petitioners, Sri.Thampan Thomas, learned counsel appearing for the first respondent in these two cases and Sri.M.Paul Varghese, learned Senior Government Pleader appearing for the second respondent.
3. Sri.P.N.Mohanan, learned counsel appearing for the petitioners, had reiterated the abovesaid submissions and contentions raised in the Original Petitions (Civil). Sri.Thampan Thomas, learned counsel appearing for the first respondent, would seriously urge that O.P.(C) No.1620 & 1626/16 ::3::
the Tribunal has got jurisdiction and further that the petitioners are estopped from raising the present contentions and would pointedly submit that it was the petitioners herein who submitted before this court in Annexure-R1(b) judgment that the remedy of the petitioners who is aggrieved by such an interlocutory orders passed by the Arbitration Court is to file a statutory appeal before the Co-operative Tribunal. Further it is pointed out that the petitioners herein had also specifically pleaded in Annexure-R1(a) counter affidavit filed in the writ proceedings referred to in Annexure-R1(b) that the remedy of the first respondent herein who is aggrieved by such an interlocutory orders passed by the arbitration court is to file a statutory appeal before the Tribunal. It is true that the petitioners have raised such a submission that the impugned Exhibit-P1 interlocutory orders are appealable before the Tribunal. Since the question of jurisdiction is purely a question of law, it cannot be said that the petitioners are legally estopped from raising the issue of jurisdiction. So the main matter to be decided by this Court is as to whether the Kerala Co-operative Tribunal has got jurisdiction to entertain a challenge as against an interlocutory order passed by the Arbitration Court as in Exhibit-P1 which led to the passing of the impugned Exhibit-P2 judgments in these two cases. Section 70 of the Kerala Co-operative Societies Act, which deals with awards and disputes, provides as follows :
"70. Award on disputes : - (1) The Co-operative Arbitration O.P.(C) No.1620 & 1626/16 ::4::
Court, on receipt of reference of a dispute under sub- section (1) of Section 69, shall pass an award within one year in accordance with the provisions of this Act and the rules and the bye-laws made thereunder and such award shall, subject to the provisions of Section 82, be final.
(2) The Co-operative Arbitration Court may, pending award of a dispute referred to it under Section 69, make such interlocutory orders as it may deem necessary in the interests of justice.
(3) The Co-operative Arbitration Court shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), while trying a suit in respect of the following matters, namely :-
(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath ;
(ii) the discovery and production of any document or other material object producible as evidence ;
(iii) the reception of evidence on affidavits ;
(iv) issuing of any commission for the examination of any witness ; and
(v) any other matter which may be prescribed.
(4) The Registrar may on receipt of the reference of a dispute under sub-section (1) of Sec. 69-
(a) elect to decide the dispute himself ; or
(b) transfer it for disposal to any person who has been invested by the Government with powers in that behalf ; or
(c) refer it for disposal to an arbitrator appointed by the Registrar :
Provided that a transfer under clause (b) or a reference under clause (c) shall not be made to a person equal or superior to him in rank.
(5) The Registrar may withdraw any reference transferred under clause (b) of sub-section (4) or referred under clause (c) of that sub-section and he may elect to decide the dispute himself or transfer it to any other person O.P.(C) No.1620 & 1626/16 ::5::
under clause (b) of sub-section (4) or refer it to any other arbitrator under clause (c) of that sub-section.
(6) The Registrar or the person invested with powers in this behalf shall, decide the dispute or the arbitrator shall pass an award in accordance with the provisions of this Act and the rules and the bye-laws and such decision or award shall, subject to the provisions of Section 82, be final. Pending decision or award, the Registrar, such person or the Arbitrator, as the case may be, may make such interlocutory orders, as he may deem necessary, in the interests of justice."
Section 82 (1) of the said Act which deals with appeals to Tribunal provides as follows :
"82. Appeals to Tribunal - (1) Any person aggrieved by -
(a) an award of the Co-operative Arbitration Court, under sub-
section (1) of Section 70; or
(b) an order of the Registrar made under clause (ii) of sub- section (8) or clause (ii) of sub-section (9) of Section 14 ; or
(c) any decision of the Registrar made under sub-section (6) of Section 70 ; or
(d) any decision under sub-section (6) of Section 70 of the person invested with powers in that behalf, by the Government ; or
(e) any award of the arbitrator under sub-section (6) of Section 70 ;
may, within sixty days from the date of such decision or award, as the case may be, appeal to the Tribunal and the Tribunal, may pass such orders on the appeal as it may deem fit.
(1A) The Tribunal shall pass an order under sub- section (1) within six months with direction to communicate the copies thereof within fifteen days to the parties thereof."
4. From a reading of Sections 70 and 82(1) of the Co- operative Societies Act, it is clear that only an award passed by the Co- operative Arbitration Court under Section 70(1) of the Act is appealable O.P.(C) No.1620 & 1626/16 ::6::
to the Tribunal in terms of Section 82(1) (a). Clauses (b) to (e) of Section 82(1) deals with other scenarios and does not deal with a decision of the cooperative arbitration court. Section 70 (2) deals with interlocutory orders that may passed by the Co-operative Arbitration Court in contradiction to the final award that may be passed by the said Arbitration Court as envisaged in Section 70(1). Section 82 has consciously excluded from its appealable purview, an interlocutory order passed by the Co-operative Arbitration Court as envisaged in sub- section (2) of Section 70. Whereas the legislature has consciously included in Section 82(1) only an award of the Co-operative Arbitration Court as envisaged in Section 70(1) as appealable. It is not in dispute that the impugned Exhibit-P1 orders are interlocutory orders passed by the Arbitration Court and therefore, Exhibit-P1 is not appealable before the Co-operative Tribunal. In this view of the matter, the impugned Exhibit-P2 judgments passed by the Kerala Co-operative Tribunal in these two cases is without jurisdiction and is ultravires and is liable to be interfered with on the that sole ground alone.
5. Accordingly, it is ordered that the impugned Exhibit-P2 judgments passed in these two cases will stand set aside as the Co-operative Tribunal has no jurisdiction to entertain such a matter. However, it is to be seen that the petitioners themselves who submitted before this Court in the previous round of litigation pertaining to the very same impugned orders as can be seen from Annexure-R1(a) counter O.P.(C) No.1620 & 1626/16 ::7::
affidavit and Annexure-R1 (b) judgment (produced in O.P.(C) No.1626 of 2016) that the remedy of the petitioners herein who are aggrieved by the impugned Exhibit-P1 interim orders passed by the Arbitration Court is to file a statutory appeal before Co-operative Tribunal. It is on that basis that this Court had rendered Exhibit-R1(b) judgment dated 27.11.2015 in W.P.(C) Nos.16585 and W.P.(C) No.16586 of 2014 giving leave to the petitioners therein (First respondent herein) to approach the Tribunal by filing appeal, etc. which led to the present impugned orders. Therefore, this Court is of the considered view that the petitioners are bound to pay costs to the first respondent herein. Accordingly, it is ordered that the petitioners will pay cost of Rs.2,500/- each to the first respondent in these two cases. The cost amount should be paid within one month from the date of receipt of a certified copy of this judgment.
This Court cannot leave the first respondent employees in the lurch merely by passing a judgment of this nature. It was in view of the submission made by the petitioners herein that this Court had passed the judgment as per Exhibit R1(b). Therefore, necessary directions should also be issued by this Court to at least grant some modulated reliefs to the first respondent herein who are now almost left in the lurch. Accordingly, it is ordered that it is for the first respondent in these two cases to work out their remedies in appropriate proceedings as against the impugned Exhibit-P1 orders. The time spent for prosecuting the writ O.P.(C) No.1620 & 1626/16 ::8::
proceedings in the earlier round in the writ proceedings referred to in Exhibit R1(b) up to one month from the date of receipt of a certified copy of this judgment could be excluded for the purpose of computing limitation or for deciding the question of delay or laches. This Court is constrained to make these observations, as otherwise it would be quite unfair and unjust on the first respondent as Exhibit R1(b) judgment was rendered by this Court solely on the basis of the submission made by the respondents therein (petitioners herein).
With these observations and directions, the aforecaptioned Original Petitions (Civil) will stand finally disposed of.
ALEXANDER THOMAS JUDGE csl