Ernakulam District Co-Operative ... vs The Joint Registrar (General)
2023 Latest Caselaw 7228 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                   THE HONOURABLE MR. JUSTICE GOPINATH P.
         TUESDAY, THE 27TH DAY OF JUNE 2023 / 6TH ASHADHA, 1945
                        WP(C) NO. 42331 OF 2022
PETITIONER:

              ERNAKULAM DISTRICT CO-OPERATIVE EMPLOYEES HOUSING CO-
              OPERATIVE SOCIETY LTD.NO.E-933
              REPRESENTED BY ITS SECRETARY, SITARAM COMPLEX,        1ST
              FLOOR, CHITTOOR ROAD, KACHERIPADY, KOCHI-682 018.

              BY ADV JAMES ABRAHAM (VILAYAKATTU)

RESPONDENTS:

     1        THE JOINT REGISTRAR (GENERAL)
              OFFICE OF THE CO-OPERATIVE JOINT REGISTRAR, KAKKANAD,
              ERNAKULAM-682 030.

     2        THE SECRETARY,
              POONITHURA SERVICE CO-OPERATIVE BANK LTD. NO. E 840,
              POONITHURA P.O., ERNAKULAM DISTRICT-682 038.

     3        VINODKUMAR V.S.,
              SASI NIVAS, EROOR WEST, THRIPUNITHURA,
              ERNAKULAM DISTRICT-682 306.

     4        NAVEENKUMAR V.N.,
              HELPER/SALESMAN,
              POONITHURA SERVICE CO-OPERATIVE BANK LTD. NO. E 840,
              POONITHURA P.O., ERNAKULAM DISTRICT-682 038.

     5        RASHY C.J.,
              PEON,
              POONITHURA SERVICE CO-OPERATIVE BANK LTD. NO. E 840,
              POONITHURA P.O., ERNAKULAM DISTRICT-682 038.

              BY ADVS.
                      M.PAUL VARGHESE
                      PRAJEESH N. P
                      V.K.KISHOR
                      M.M.MONAYE(K/182/1984)
                      DEVI P. PRATHAPAN(K/165/2013)
                      AJWIN P LALSON(K/001394/2018)
                      ASHNA ALOYSIUS P.(K/100/2015)
                      SREEJA K.S.(K/000120/2019)
                      AMRUTHA P.M.(K/001322/2021)
                      MANJU LUCKOSE(K/1069/2022)


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION             ON
27.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO.42331 OF 2022             2



                           JUDGMENT

Petitioner has approached this Court being aggrieved

by the fact that despite there being an agreement in terms of

Section 37 of the Kerala Co-operative Societies Act, 1969,

the 2nd respondent is not recovering any amount from

respondents 4 and 5, who are sureties for a loan availed by

the 3rd respondent. The 3rd respondent (who was also an

employee of the 2nd respondent) was dismissed from service

following disciplinary proceedings.

2. The learned counsel appearing for the 2nd

respondent would submit that at present there is already a

recovery of Rs.5000/- each from respondents 4 and 5 in

respect of loans availed by them and if further amounts are

to be recovered, the same may be restricted to another sum

of Rs.5,000/- each from respondents 4 and 5, as otherwise

respondents 4 and 5 will be left with no amount left for their

sustenance. It is submitted that though the provisions

contained in the Code of Civil Procedure may not apply to a

recovery in terms of an agreement under Section 37 of the

Kerala Cooperative Societies Act, the judgment of this Court

in Sasidharan Nair v. The Trivandrum Co-op. Urban

Bank Ltd. and Ors; 2009 (2) KLJ 112 , clearly states that

the recovery will have to be limited taking into consideration

the basic right to life and basic human dignity guaranteed

under Article 21 of the Constitution of India.

3. The learned counsel for the petitioner would

submit that the petitioner will be satisfied if Rs.5000/- each

is deducted from the salary of respondents 4 and 5 and paid

over to the petitioner every month.

4. The learned counsel appearing for respondents 4

and 5 vehemently opposes the maintainability of the writ

petition, pointing out that the remedy of the petitioner if at

all is to initiate proceedings under Section 69 of the Kerala

Co-operative Societies Act (hereinafter referred to as 'the

Act'). It is submitted that the officer in default of the

obligation under Section 37 of the Act could also be

prosecuted in terms of the provisions in Section 94 of the

Act. It is submitted that if this Court finds that the writ

petition is maintainable, the recovery may be restricted to

the minimum.

5. Having heard counsel for the respective parties as

above, I am of the view that in the light of the larger Bench

judgment of this Court in Association of Milma Officers'

Ksheera Bhavan, Tvm and Another v. State of Kerala

and Others; 2015 (1) KHC 779, the writ petition is clearly

maintainable, as the action of the 2nd respondent constitutes

a statutory violation. Once there is an agreement in terms of

Section 37 of the Act, the employer has no option but to

recover from the salary in terms of the agreement.

However, such recovery cannot be made in a manner that

would violate the basic right to life and human dignity as

observed in Sasidharan Nair (supra).

Having heard the learned counsel for the petitioner,

learned counsel appearing for the 2 nd respondent and the

learned counsel appearing for respondents 4 and 5, this writ

petition will stand disposed of in the following manner:

i) The 2nd respondent shall effect further recovery of

Rs.5,000/- each (over and above the recovery being

already effected) from the salary of respondents 4

and 5. The said amount shall be paid over to the

petitioner in terms of the demand raised under the

agreement executed under Section 37 of the Kerala

Co-operative Societies Act, 1969.

ii) The recovery shall be effected from the month of

July 2023 onwards.

Sd/-

GOPINATH P.

JUDGE ats

APPENDIX OF WP(C) 42331/2022

PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE APPLICATION FORM DATED 17.4.2018.

Exhibit P2 TRUE COPIES OF EMPLOYMENT CERTIFICATE WITH AGREEMENT FOR RECOVERY DATED 17.4.2018 EXECUTED BY THE RESPONDENTS 3 TO 5 IN FAVOUR OF THE PETITIONER.

Exhibit P3 TRUE COPY OF THE CONSENT LETTER DATED 25.4.2018 ISSUED BY THE RESPONDENTS 3 TO 5.

Exhibit P4 TRUE COPY OF THE AGREEMENT DATED 25.4.2018 EXECUTED BY THE 3RD RESPONDENT.

Exhibit P5 TRUE COPY OF THE DEMAND LIST FOR THE MONTH OF OCTOBER, 2018.

Exhibit P6 TRUE COPY OF THE DEMAND LIST FOR THE MONTH OF DECEMBER, 2022.

Exhibit P7 TRUE COPY OF THE LETTER DATED 4.8.2022 ISSUED BY THE 2ND RESPONDENT.

Exhibit P8 TRUE COPY OF THE REPRESENTATION DATED 6.8.2022 SENT BY THE PETITIONER TO THE 1ST RESPONDENT.

Exhibit P9 TRUE COPY OF THE ACKNOWLEDGMENT CARD.

RESPONDENT EXHIBITS

Exhibit: R2(a) TRUE COPY OF THE LETTER DATED 15.10.2019 OF THE 2ND RESPONDENT TO THE PETITIONER

Exhibit: R2(b) TRUE COPY OF THE LETTER DATED 28.08.2019 OF THE 4TH RESPONDENT TO THE 2ND RESPONDENT

Exhibit: R2(c) TRUE COPY OF THE LETTER DATED 27.8.2019 OF THE 5TH RESPONDENT TO THE 2ND RESPONDENT

Exhibit: R2(d) TRUE COPY OF THE LETTER DATED 01.09.2022 ADDRESSED TO THE SECRETARY OF THE PETITIONER SOCIETY

Exhibit: R2(e) TRUE COPY OF THE LETTER DATED 06.10.2022 ADDRESSED TO THE SECRETARY OF THE PETITIONER SOCIETY

Exhibit: R2(f) TRUE COPY OF THE LETTER DATED 02.11.2022 ADDRESSED TO THE SECRETARY OF THE PETITIONER SOCIETY

Exhibit: R2(g) TRUE COPY OF THE LETTER DATED 03.12.2022 ADDRESSED TO THE SECRETARY OF THE PETITIONER SOCIETY

Exhibit: R2(h) TRUE COPY OF THE LETTER DATED 03.01.2023 ADDRESSED TO THE SECRETARY OF THE PETITIONER SOCIETY

Exhibit: R2(i) TRUE COPY OF THE PAY SLIP OF THE 4TH RESPONDENT FOR THE MONTH OF NOVEMBER-2022

Exhibit: R2(j) TRUE COPY OF THE PAY SLIP OF THE 5TH RESPONDENT FOR THE MONTH OF NOVEMBER-2022