Sreekumar vs The President
2021 Latest Caselaw 6566 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE SUNIL THOMAS

  WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942

                      WP(C).No.18866 OF 2020(G)


PETITIONER:

               SREEKUMAR,
               AGED 67 YEARS
               S/O. PARAMESWARAN PILLAI,
               SANTHI BHAVAN,
               PLAVARA,
               NANNIYODE,
               PACHA P.O.,
               NEDUMANGAD,
               THIRUVANANTHAPURAM DISTRICT

               BY ADV. SRI.LATHEESH SEBASTIAN

RESPONDENTS:

      1        THE PRESIDENT,
               PALODE SERVICE CO-OPERATIVE BANK LTD NO.792,
               PALODE,PACHA P.O., NEDUMAGAD,
               THIRUVANANTHAPURAM-695 562

      2        THE SECRETARY,
               PALODE SERVICE CO-OPERATIVE BANK LTD NO.792,
               PALODE,PACHA P.O., NEDUMAGAD,
               THIRUVANANTHAPURAM-695 562

      3        PALODE SERVICE CO-OPERATIVE BANK LTD NO.792,
               PALODE,PACHA P.O., NEDUMAGAD,
               THIRUVANANTHAPURAM-695 562,
               REPRESENTED BY ITS SECRETARY


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.18866 OF 2020

                                       2




                                 JUDGMENT

Dated this the 24th day of February 2021

The petitioner herein initiated ARC

No.20/2017 before the Co-operative Arbitration

Court, in relation to the enquiry and his

termination of service. The relief sought in the

plaint as evident from Ext.P6 is that, an award may

be passed in favour of the plaintiff to allow him to

recover Rs.9,88,000/- from third defendant.

Consequential relief for cost was also sought. When

the matter came up before the court below, the

Arbitration Court by Ext.P8 order, which is under

challenge in this proceedings held that a fair

reading of the plaint discloses that, there was

total lack of separate prayer for setting aside the

entire report and the consequent termination order

bars the court from entertaining the suit as framed.

It was held that, had a proper relief been sought

with regard to setting aside of the enquiry report WP(C).No.18866 OF 2020

and consequential termination order, the same would

have fallen within Section 69(1)(c) of the Kerala

Co-operative Societies Act. Based on this the suit

was dismissed with liberty to the plaintiff to file

a fresh suit with proper pleadings.

2. Notice was served on the respondents,

who have not chosen to contest the proceedings.

3. The learned counsel for the petitioner

invited my attention to para No.15 of the plaint

wherein there is a specific pleading that "the

suspension, termination and conduct of enquiry were

against the law and Rules. The plaintiff has every

right to set aside alleged charges and enquiry

report and thereby he is entitled to get back wages.

The plaintiff hence prayed for setting aside the

termination order". The tenor of the remaining

portion of the pleadings also indicate that,

essentially the prayer of the petitioner was for

setting aside the enquiry report. However, in the

prayer portion it so happened that, the prayer was

confined to recovery of Rs.9,80,000/- only. It is WP(C).No.18866 OF 2020

true that, a specific prayer is not there in the

plaint. Definitely the nature of the facts disclosed

and Para 15 which discloses the intention of the

plaintiff to challenge the enquiry report and for

setting it aside, I feel that the missing of the

relevant prayer is only be an unintentional omission

which should not deprive the plaintiff of his

legitimate right to pursue the suit.

4. Having evaluated in this perspective, I

am inclined to hold that, the suit ought not have

been dismissed on such a technical reason. Having

considered it, I am inclined to set aside Ext.P8

order and direct the authority to restore the ARC to

file. The petitioner shall be given a reasonable

opportunity to file an application for amendment, if

he so proposes.

After making necessary amendments, the court

below shall proceed with the trial. The both sides

shall appear before the authority on a date to be

notified by the Co-operative Arbitration Court with

notice to both sides. Thereafter, the authority WP(C).No.18866 OF 2020

shall proceed in accordance with law.

The writ petition is allowed as above.

Sd/-

                                    SUNIL THOMAS
                                          JUDGE
Jms                       //True Copy//    P.A to Judge
 WP(C).No.18866 OF 2020






                             APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1               TRUE COPY OF THE SUSPENSION ORDER OF THE
                         1ST RESPONDENT DATED 03.01.1991

EXHIBIT P2               TRUE COPY OF THE NOTICE OF THE 1ST
                         RESPONDENT DATED 16.08.1991

EXHIBIT P3               TRUE COPY OF THE NOTICE OF THE 1ST
                         RESPONDENT DATED 14.08.1991

EXHIBIT P4               TRUE COPY OF THE NOTICE OF THE 1ST
                         RESPONDENT DATED 19.08.1991

EXHIBIT P5               TRUE COPY OF THE ORDER OF THE JOINT

REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM DATED 22.08.1991

EXHIBIT P6 TRUE COPY OF THE PLAINT IN ARC NO.20/2017 OF THE ARBITRATION COURT, THIRUVANANTHAPURAM

EXHIBIT P7 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS TO EXT P6 CASE

EXHIBIT P8 TRUE COPY OF THE AWARD DATED 24.12.2019 IN ARC NO.20/2017 OF THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM //True Copy// P.A to Judge