Thomas James vs *The Joint Registrar Of ...
2021 Latest Caselaw 17651 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS &
               THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
        FRIDAY, THE 27TH DAY OF AUGUST 2021 / 5TH BHADRA, 1943
                           WA NO. 614 OF 2021
 AGAINST THE JUDGMENT IN WP(C) 12463/2017 OF HIGH COURT OF KERALA
APPELLANT/S:

            THOMAS JAMES
            AGED 57 YEARS
            S/O. JAMES,
            KUZHITHOTTATHIL HOUSE, VALACHIRA, KADUTHURUTHY,
            KOTTAYAM 686 604.
            BY ADV SARITHA THOMAS
RESPONDENT/S:

    1       *THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
            (GENERAL)
            ERNAKULAM 686 002. *CORRECTED.

            R1 : THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,
            KOTTAYAM.
            ADDRESS OF FIRST RESPONDENT IS CORRECTED AS ABOVE AS
            PER ORDER DATED 27/8/21 IN I.A.2/21 IN WA 614/21.
    2       THE ASSISTANT REGISTRAR OF CO-OPERATIVE
            SOCIETIES (GENERAL)
            VAIKOM, KOTTAYAM-686041.
    3       THE MANAGING COMMITTEE OF THE KAPPAUMTHALA
            SERVICE CO-OPERATIVE BANK
            LIMITED NO.142, MUTTUCHIRA P O, KOTTAYAM DISTRICT,
            REPRESENTED BY ITS PRESIDENT-686613
    4       THE DISCIPLINARY SUB COMMITTEE
            KAPPUMTHALA SERVICE CO-OPERATIVE BANK, LIMITED NO.142,
            MUTTUCHIRA P O, REPRESENTED BY ITS CHAIRMAN, KOTTAYAM
            DISTRICT 686613., REPRESENTED BY ITS CONVENER.
    5       THE KAPPUMTHALA SERVICE CO-OPERATIVE BANK
            LIMITED NO.142, MUTTUCHIRA P O, KOTTAYAM DISTRICT,
            REPRESENTED BY ITS SECRETARY, PIN-686613.


OTHER PRESENT:

            SRI. SAIGI JACOB PALATTY, SR.GOVT.PLEADER
            SRI.P.N.MOHANAN FOR R3 TO R5

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.08.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Writ Appeal No.614 of 2021
                            2
      ALEXANDER THOMAS & A. BADHARUDEEN, JJ.
  ===============================================
                 Writ Appeal No.614/2021
     (Arising out of the judgment dated 19.3.2021 in W.P.(C) No.12463/2017

  ===============================================
            Dated this the 27th day of August, 2021

                                 JUDGMENT

Alexander Thomas, J.

Being aggrieved by impugned Ext.P5 final order dated

17.6.2015 and Ext.P11 proceedings dated 24.1.2017 issued by the

respondent-Service Co-operative Bank Ltd. accepting the plea of

the petitioner contained in Ext.P9, the petitioner herein, who is an

employee of the said Co-operative Society has approached this

Court by filing the afore-captioned Writ Petition (Civil)

No.12463/2017 with the following prayers (see page 25 of the

paper book of this appeal):

"i) issue a Writ of Certiorari or any other writ, order or direction to quash Ext.P5, P6 and P11.

ii) Issue a direction to the 3rd respondent to consider and dispose of Ext.P12 request within a time limit stipulated by this Hon'ble Court.

ii) Issue a further direction to the 3 rd respondent to keep in abeyance Ext.P11 with liberty to the petitioner to continue his employment till a decision is taken on Ext.P12."

2. The learned Single Judge after hearing both sides has

rendered the impugned judgment dated 19.3.2021 dismissing the Writ Appeal No.614 of 2021

above writ petition with liberty to the petitioner to avail the

statutory alternative remedy under Section 69 (2) (d) of the Co-

operative Societies Act. It is aggrieved by the said judgment dated

19.3.2021, rendered by the learned Single Judge dismissing the

Writ Petition, that the appellant herein, who is the writ petitioner

therein has filed the present intra court appeal under Section 5 of

the Kerala High Court Act.

3. Heard Sri.Alex M. Scaria, learned Counsel appearing

for the appellant in the Writ appeal/petitioner in the Writ Petition,

Sri.P.N.Mohanan, learned Counsel appearing for R3 to R5

(Kappaumthala Service Co-operative Bank Limited) and Sri.Saigi

Jacob Palatty, learned Senior Government Pleader appearing for

official respondents 1 and 2.

4. Brief recital to the essential facts may be relevant and

pertinent to this case. It appears that the appellant, who is an

employee of the respondent service co-operative Society was

subjected to disciplinary proceedings as referred to in Ext.P3

memo of charges dated 7.3.2015, raising allegation of

unauthorized absence. The petitioner had submitted Ext.P4 reply

dated 28.3.2015 thereof. Thereafter, the President of the Writ Appeal No.614 of 2021

respondent Co-operative society had issued Ext.P5 show cause

notice directing the petitioner to show cause as to why penalty of

barring of three increments with cumulative effect shall not be

imposed against the appellant. Thereafter the President of the

respondent Co-operative Society has issued Ext.P6 penalty order

dated 26.6.2015 imposing penalty of barring of three increments

with cumulative effect on the appellant. Further it appears that the

petitioner had preferred a statutory appeal as against Ext.P6,

which has been dismissed by the appellate authority, (committee

of the Society). The case of the appellant is that the allegations,

which led to the penalty order, are based on baseless and flimsy

grounds and that the allegation that the petitioner was on

unauthorised absence etc. is not tenable etc. According to the

appellant, he was subjected to serious harassment and his family

members were also out of station and out of emotional turmoil, he

has submitted Ext.P9 letter dated 31.12.2016 addressed to the

President of the respondent Co-operative Society requesting that

as the petitioner is being consistently denied permission to sign in

the acquittance register, he may be immediately permitted to sign

the acquitance register or grant retiral benefits and other Writ Appeal No.614 of 2021

admissible benefits. The contents of Ext.P9 letter dated 31.12.2016

submitted by the appellant before the respondent-employer read

as follows: (see page 41 of the paper book).

ഈ ബ ങ ല ജ വനക രന യ ഞ ൻ 31.12.2016 ൽ 10.30ന ബ ങ ല ഡ ആഫ സ ൽ എല മ സശമള വ ങ കനത ന അക' റൻസ ഒപ ടനത ന വര കയണ യ. ന ർഭ ഗ1വശ ൽ ബ ങ ലസകടറ യ ല ഡആഫ സ ല അടത സ ന യർ സ ഫ വ ല8ന 8 അറ യനത.. ഇപപ ൾ ല ഡഓഫ സ ല ച ർജ ലള അസ മ A.T. യമ യ സ സ ര ചപപ ൾ അക' റൻസ ലന കറ ച അറ യ ലBന 8 പറഞത. എലന സസലപൻഡ ലചയ സമയലത ശമളകട ശ കകള അനർ മ യ എന ക ന പIധ കലപട ലK പമ Iന സ ബന ച ഞ ൻ ബഹമ നലപട ഭര8സമ ത ക ഡ പ ർടലമ ല പര ത നല യ ടളത 8.. അക' റൻസ മ സ വസ ന ഒപ ടവ ൻ പപ ല അവസര തരന ലBങ ൽ എല സസലപനIൻ ക വധ യ ല ശമളകട ശ കയ എന കർ തലപട ലK പമ Iന കമ കര ച എല റ ടയർലമ ആനക 1ങൾ തന സർവ സ ൽ ന ന പ ര ഞ പപ കവ ൻ അനവദ ക8ലമന വ ന തമ യ അപപക കന."

5. According to the appellant, he had thereafter filed a

representation before the respondent-Co-operative Society

pointing out that he has no intention to resign from service, and

that he should be permitted to sign the attendance register.

Whereas the case of the respondent-employer is that no such

representation has been filed by the petitioner.

6. Be that as it may, thereafter the respondent-employer

has issued Ext.P11 proceedings dated 24.1.2017, intimating the

petitioner that Ext.P9 request of the petitioner dated 31.12.2016

submitted by the appellant has been considered by the managing

committee of the Co-operative Society in the meeting held on

19.1.2017 and after detailed discussion, all the members of the

committee had decided that petitioner could be given permission Writ Appeal No.614 of 2021

to retire from service, presumably meaning thereby-voluntary

retirement and that the petitioner's service stands terminated

w.e.f. the date of communication of Ext.P11 order dated 24.1.2017.

7. Though the appellant has challenged Ext.P6 penalty

order, Ext.P5 show cause notice, and Ext.P11 proceedings, learned

Counsel for the appellant has now submitted on the basis of

instructions that the appellant is not seriously pressing with the

prayer for quashment of Exts.P5 and Ext.P6 penalty proceedings

inasmuch as that the crucial challenge is the one as against

Ext.P11. As indicated herein above, the learned Single Judge has

taken the view that since the petitioner has an alternative

statutory remedy under Section 69 (2) of the Kerala Co-operative

Societies Act, it is for him to work out that remedy and

accordingly, the Writ Petition has dismissed. Since the challenge

made by the petitioner was not only as against Ext.P11, but also as

against Exts.P5 and P6, which are essentially proceedings in the

domain of disciplinary proceedings, the learned Single Judge

would have taken the view that the remedy under Section 69 (2)

(d) of Kerala Co-operative Societies Act, will be the most

appropriate one, inasmuch as that the penalty proceedings has Writ Appeal No.614 of 2021

also been challenged. Now that the appellant is not seriously

pressing for the challenge as against the penalty proceedings

Exts.P5 and P6, and hence the sole challenge is as against Ext.P11

proceedings dated 24.1.2017, which in turn is only a reflection of

the decision taken by the managing committee of the respondent

Co-operative Society, by the resolution taken in the meeting held

on 19.7.2017.

8. We have heard the parties in extenso and the case has

been heard on occasions more than one. On all such occasions, we

have requested Sri.P.N.Mohanan, learned Advocate appearing for

the respondent-Co-operative Society to get instructions, and we

have also expressed prima facie view that the decision referred to

in Ext.P11 appears to be rather unjust and arbitrary. This we say

so, as the main dispute was that the appellant was not permitted

to sign the acquittance register, by the official concerned of the

respondent-co-operative Society, and hence the main plea put

forth by him in Ext.P9 is that he should be permitted to sign the

acquittance register. It is only as an alternative plea, that the

appellant has stated that if the relief on the first count is not

immediately granted, he may be granted at least terminal benefits Writ Appeal No.614 of 2021

etc.

9. Sri.P.N.Mohanan, learned Counsel appearing for the

respondent-Co-operative Society has stated that Ext.R5(c) would

clearly show that version given by the appellant that he was not

permitted to sign the acquittance register is not tenable, etc. Be

that as it may, reading of Ext.P10 would make it clear that the

main dispute made by the petitioner was that he has been

consistently denied permission to sign the acquittance register. It

is in this back ground that he has requested in Ext.P10 that the

officials concerned of the respondent c0-operative society should

immediately permit him to sign the acquittance register. Of

course, it may appear that being an alternative plea, as if he may

be given terminal benefits presumably therefore, seeking

permission to seek voluntary retirement etc. We are not now

getting into the correctness of the factual case of the petitioner as

to whether he has been deliberately denied permission to sign the

acquittance register. However, the pleadings and materials pointed

out by both sides would indicate that there was serious difference of

opinion between the petitioner and the authorities concerned of the

respondent Co-operative Bank. Prima facie, it is also a Writ Appeal No.614 of 2021

matter of common knowledge that ordinarily where retirement

benefits are governed by statutory rules, as in the instant case

wherein it is covered by the provisions contained under the

Kerala Co-operative Society Rules, even the employee concerned

is retiring consequent to the attainment of superannuation, still

the employee concerned will have to submit application for grant

of pension, gratuity etc. as per the stipulated norms. Therefore,

there cannot be any doubt for consideration of request of

voluntary retirement, certainly a formal application in accordance

with Statutory rules would have been necessary. The appellant

has not given any such formal application for seeking voluntary

retirement. It appears that due to emotional turmoil and other

issues, the petitioner would have taken the stand in Ext.P10, that

he should be immediately permitted to sign the acquittance

register, failing which he should be given the terminal benefits

and thereby presumably implying granting permission to seek

voluntary retirement etc. In such a case, the respondent

employer, will have to prima facie take the stand that even the

permission for signing the acquittance register is to be rejected

for any valid reasons, and that the alternative plea is to be taken Writ Appeal No.614 of 2021

up for consideration, then the employer should have directed the

petitioner to attend a personal hearing and then thereafter if the

employee is still insisting for voluntary retirement, then he should

have been directed to submit application in prescribed forforma

for granting of retirement benefits, which should have been

processed and considered later. None of this procedure has been

adopted in the instant case. We are only making a prima facie

observations in this case. In the light of these aspects, we have

expressed the prima facie view that the manner in which the

decision which led to the decision referred to in Ext.P11 has been

taken directing that the petitioner stands terminated from service

consequent to grant of voluntary retirement benefits etc. does not

appears to be proper and reasonable exercise of power.

10. Accordingly, we suggested to both sides that the

appellant could be permitted to file a formal application under

Rule 176 of the Kerala Co-operative Societies Rules before the 1 st

respondent Joint Register, seeking to rescind the resolution dated

19.1.2017 taken by the managing committee of the respondent

Co-operative Bank as referred to in Ext.P11 and that the Joint

Registrar may take an appropriate decision on the said Writ Appeal No.614 of 2021

application filed under Rule 176 of the Kerala Co-operative

Societies Act, after hearing the employer and the employee. Since

on more than one occasion we had impressed upon

Sri.P.N.Mohanan, learned Advocate appearing in this case that a

fair and reasonable stand would be taken by the respondent Co-

operative Societies in this case. Sri.P.N.Mohanan, on the basis of

instructions has fairly agreed that the said course of action

suggested by this Court that the petitioner could be directed to

ventilate his grievance by filing appropriate application under

Rule 176 of the Kerala Co-operative Societies Rules.

11. We made the above said suggestions as the decision

referred to in Ext.P11 is the resolution of a Co-operative Society

and ordinarily, the same could be subject of challenge before a

statutory authority like the Registrar/notified Registrar in terms

of Rules 176, subject to satisfaction of the parameters in that

regard.

12. Sri.Alex M Scaria, learned Counsel appearing for the

appellant on the basis of instructions would also submit that his

party has no serious objection to the said course of action.

Accordingly, it is ordered that the petitioner may immediately Writ Appeal No.614 of 2021

apply before the Secretary of the Co-operative Society for grant

of the authenticated copy of the resolution dated 19.1.2017,

taken by the managing committee of the said Co-operative

Society, which led to the decision referred to in Ext.P11 and copy

of the said resolution dated 19.1.2017 should be given to the

appellant without any further delay, within one week from the

date of request in that regard. Thereafter, the appellant may file

a formal application under Rule 176 of the Co-operative Society

Rules, before the 1st respondent Joint Registrar with his plea to

rescind the said resolution and prior notice in that regard should

also be given to the Secretary of respondent-Co-operative

Society. Thereafter, the 1st respondent Joint Registrar will afford

reasonable opportunity of being heard on both sides and then

may take a concerned decision in the matter, taking note of the

observations made by this Court herein above, and in

accordance with law, without much delay, within a period of six

weeks from the date of filing of such application, along with a

certified copy of this judgment. Further it is made clear that if

the 1st respondent Joint Registrar accedes to the plea of the

petitioner so as to rescind the impugned resolution in question, Writ Appeal No.614 of 2021

then the 1 respondent will be at liberty to pass orders in that st

regard and then to remit the matter to the managing committee

of the 3rd respondent Co-operative society to proceed further on

consequential aspects, in accordance with law.

13. It is also made clear that we requested both sides to

develop a consensual approach before the 1 st respondent Joint

Registrar, so that the matter could be properly dealt with by the

1st respondent on the basis consensus between the appellant

employee and the 3rd respondent employer. The judgment of the

learned Single Judge will stand modified as above.

With these observations and directions, the Writ Appeal

stand disposed of.

Sd/

ALEXANDER THOMAS, JUDGE

sd/ A. BADHARUDEEN, JUDGE

jm/ Writ Appeal No.614 of 2021

PETITIONER ANNEXURE

ANNEXURE A1 TRUE COPY OF THE JUDGMENT DATED 30/11/2010 IN C.C. 10/2008 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, VAIKOM.