Kerala High Court
Omana vs Punnamparambu Milk Producers ... on 1 August, 2024
2024:KER:61559
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W.P.(C) No. 39501 of 2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.M.MANOJ
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
WP(C) NO. 39501 OF 2015
AGAINST THE ORDER/JUDGMENT DATED 30.10.2015 IN OTHERS NO.85 OF 2014
OF KERALA CO-OP.TRIBUNAL, THIRUVANANTHAPURAM.
PETITIONER:
OMANA
W/O.VARGHESE
CHALAKKAL HOUSE,PUNNAMPARAMBU
THEKKUMKARA (P.O.), THRISSUR - 680 589.
BY ADV JESSY S.SALIM
RESPONDENTS:
1 PUNNAMPARAMBU MILK PRODUCERS CO-OPERATIVE SOCIETY
LTD.NO.R51(D, (P.O.) PUNNAMPARAMBU, THRISSUR - 680 589
REPRESENTED BY ITS PRESIDENT.
2 THE DEPUTY DIRECTOR DAIRY DEVELOPMENT DEPARTMENT
THRISSUR - 680 001.
3 THE DAIRY DEVELOPMENT OFFICER, THE DEPUTY DIRECTOR, DAIRY
DEVELOPMENT DEPARTMENT, THRISSUR - 680 001.
4 THE COURT OF THE KERALA CO-OPERATIVE TRIBUNAL
THIRUVANANTHAPURAM - 695 001.
R1 BY ADVS. SRI.DEEPAK MOHAN
SRI.JOMY GEORGE
SMT.A.MINI JOSEPH
R2 & R3 BY SRI.E.G. GORDEN, SR. GOVT. PLEADER.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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2
W.P.(C) No. 39501 of 2015
P.M. MANOJ, J.
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W.P.(C)No.39501 of 2015
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Dated this the 1st day of August, 2024
JUDGMENT
This Writ Petition is preferred being aggrieved by Ext.P3 judgment
passed by the 4th respondent. The petitioner was suspended from service
on 20.08.1993 while she was working as Secretary of the 1 st respondent
Society. It is stated that disciplinary proceedings were initiated by serving
a charge memo but without holding a proper enquiry.
2. The 1st respondent filed an Arbitration Reference Case
No.79/1993 for realisation of a sum of Rs.2,26,342/- under various heads.
Since the order passed by the Arbitration Court is against the petitioner,
she preferred a revision which was allowed, and the matter was remitted
back for fresh consideration. Thereafter the case was heard and award
was passed but that was never communicated to the petitioner as required
under Rule 68 of the Kerala Co-operative Societies Rules, 1969 (for short
'Rules, 1969').
3. Later, the petitioner was served with notice from the Munsiff's
Court Wadakkancerry from which she came to understand that an
Execution Petition has been preferred by the 1st respondent to execute the
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award in ARC 79/1993. The petitioner preferred a petition before the 3 rd
respondent, Deputy Director, Dairy Development Department, Thrissur,
who is considered as the authority under Rule 68 of the Rules, 1969 for
providing a copy of the award in ARC 79/1993.
4. Accordingly, the 3rd respondent issued a copy of the award in ARC
79/1993 with an endorsement that the award is issued to the petitioner
on 18.08.2014. On receipt of the award petitioner has preferred an appeal
having No.85/2014 before the Kerala Co-operative Tribunal,
Thiruvananthapuram under Section 81 of the Kerala Co-operative
Societies Act, 1969 ( for short 'the Act'). On an erroneous calculation, the
4th respondent Tribunal has dismissed the petition on the ground of delay.
5. It is contended by the petitioner that as per sub-rule (1) of Rule
98 of Rules 1969 the certified copy of the order, decision, or award shall
accompany the memorandum of appeal. The time taken for obtaining the
certified copy of the order, decision or award also should be excluded from
the period of limitation. Moreover, Rule 98(1) of the said Rule also
prescribes that every memorandum of appeal should be accompanied by
one authenticated copy of the award. So, exclusion of time is thus
attributable to the requirement of production of a copy of the judgment or
decree along with the appeal as a condition precedent for its
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entertainability. On these assertions the writ petition is filed challenging
Ext.P3 order of the Kerala Co-operative Tribunal.
6. I have heard the learned counsel for the petitioner, Smt.Jessy
Salim and the learned counsel for the respondent Sri.Deepak Mohan.
7. On evaluating the impugned Ext.P3 order it appears that the
appeal was dismissed solely on the ground of delay occurred in filing the
appeal. In fact, the said finding of the Tribunal is against the dictum laid
down by this Court in Thirumarayoor Service Co-operative Bank Ltd
v. Mathai and Others [1988 KHC 159]. In the case on hand, the copy
of the award was communicated to the petitioner for the first time only on
18.08.2014. The appeal was filed on 16.10.2014, i.e. well within the time
as per Section 82(1) of the Act. The appellate forum passed the impugned
judgment without appreciating that Rule 98 of Rules 1969 prescribes the
enclosure of a certified or authenticated copy as a condition precedent for
preferring the appeal. Therefore, the time taken to obtain the certified
copy should have been excluded from the period of limitation.
8. This position is well established in the case of Thirumarayur
Service Co-operative Bank Ltd supra which says Section 69 of the Act
provides that any dispute of the nature mentioned therein and arising
between a society and its member shall be referred to the Registrar for
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decision. Section 70 of the Act prescribes that the Arbitration Court on
receipt of a reference of a dispute, shall pass an award within one year.
The passing of the award is declared to be final subject to the provisions
of Section 82. Section 82 provides that any person aggrieved by such an
award may appeal to the Tribunal constituted under Section 81 within 60
days from the date of the award. Rule 68 specifies the mode of
communication of the award which says a copy of the award has to be
sent by registered post to the applicant. A gist of the award has also to
be communicated to the defendant by post, in case they were not present
at the time of the delivery of the award.
9. The procedure for filing the appeal under Section 82 is laid down
in Rule 98. The said Rule prescribes inter alia that the appeal had to be
accompanied by two copies of the award, one of which shall be a certified
or authenticated copy. Sub-rule (2) vests the Tribunal with the power to
do anything that appears to be necessary to remove any difficulty in giving
effect to the procedure laid down in the Rules. It further states; "if, as a
matter of fact, the gist of the award is communicated by the Arbitrator to
the defendant under Rule 68 of Rules, it may be that the period of
limitation commence from the date of receipt of it and the time if any
taken for obtaining a certified copy could not possibly be excluded."
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10. When the impact of Rule 98(1) of Rules 1969 also is taken into
account, the safer and more correct view would be that the time taken for
obtaining a certified or attested copy of the order, decision or award,
appealed against, also is bound to be excluded while reckoning the period
of limitation for filing the appeal. So long as Rule 98 mandates that a copy
of the judgment should be produced along with the appeal it only stands
to a reason that the time taken for obtaining a copy of the award should
be excluded. Otherwise, unintended consequences and hardship may
ensue. While there is no provision for communication of the entire award
to the defendants, there is equally no period of time prescribed within
which a certified copy of the award applied for should be granted to the
appellants. The right of appeal is intended to be an effective remedy for
the aggrieved party and if that right is not to be defeated, the provisions
required such a construction as will advance it. That is possible only by
leading into a condition for exclusion of the time taken for obtaining a
certified copy of the award where there is no copy of award has been
served on the appellant. It has to be noted that there is no provision in
the Act or the Rules barring such exclusion.
11. In the light of the aforementioned findings, it appears that there
is an error occurred on the part of the 4 th respondent Tribunal while
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dismissing the appeal as per the impugned order. It is found by the
Tribunal that if the award was delivered in the presence of the party, the
period of limitation shall run from the date of delivery of the award. Where
the award was not delivered in the presence of the party, the limitation
for the purpose of filing appeal should be deemed to run only from the
date of knowledge of the passing of the award and computing the period
of limitation, the time taken for obtaining a certified copy of the award is
to be excluded.
12. In contrary to that the Tribunal entered into the following
findings. The appellant did not state in the Appeal Memorandum that the
award was not delivered in her presence but her knowledge of passing of
the award is only on 18.08.2014. The contention of the appellant that the
time will run only from 18.08.2014 is not sustainable. It is specifically
found by the Tribunal that the period of limitation will run from the date
of award i.e. 10.10.2013 and it is further stated that there is nothing on
record to conclude that the Arbitrator prepared the award and kept it in
the file and award was not made known to the parties by recognized mode
of communication then the award is not operative till 18.08.2014. The
petitioner filed the appeal only on 17.10.2014, i.e. after one year and 7
days from the date of award. Thereby it is barred as per Section 82(1)(e)
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of the Kerala Co-operative Societies Act. On this ground, the appeal was
dismissed by the Tribunal.
13. Such finding is against the dictum laid down in Thirumarayur
Service Co-operative Bank Ltd supra. Hence Ext.P3 judgment of the
4th respondent Tribunal is set aside and is remanded back to the 4 th
respondent Tribunal for a fresh reconsideration in the light of the dictum
laid down in Thirumarayur Service Co-operative Bank Ltd supra.
The Writ Petition is disposed of as above.
Sd/-
P.M. MANOJ,
JUDGE
ttb
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APPENDIX OF WP(C) 39501/2015
PETITIONER EXHIBITS
EXT.P1- A TRUE COPY OF THE APPLICATION DATED
16.8.2014 SUBMITTED TO THE DEPUTY DIRECTOR DAIRY
DEVELOPMENT DEPARTMENT
EXT.P1(A)- A TRUE ENGLISH TRANSLATION OF EXT.
EXT.P2- A TRUE COPY OF THE FIRST PAGE OF THE
AWARD CONTAINING THE ENDORSEMENT THAT THE COPY OF
THE AWARD WAS ISSUED TO THE PETITIONER ON
18.8.2014
EXT.P2(A)- A TRUE ENGLISH TRANSLATION OF EXT.P2
EXT.P3- A TRUE COPY OF THE JUDGMENT IN APPEAL
