Beena K vs The Arur Service Co-Operative ...
2021 Latest Caselaw 23572 Ker

               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

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

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

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

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

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