Kerala High Court
Rani.K.D vs The Kongorpilly Farmers Service ... on 13 November, 2024
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WP(C) NO. 17245 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024 / 22ND KARTHIKA,
1946
WP(C) NO. 17245 OF 2023
PETITIONER:
RANI.K.D
AGED 57 YEARS
W/O P.K.LALAJI RESIDING AT PULLARKKATT HOUSE,
MOOTHAKUNNAM, ERNAKULAM, PIN 683516,
MANAGING DIRECTOR, KONGORPILLY FARMERS SERVICE
CO-OPERATIVE BANK LTD.NO. 3847,
KONGORPILLLY. P.O,, NORTH PARAVOOR,
ERNAKULAM DISTRICT, PIN - 683518
BY ADV P.P.JACOB
RESPONDENTS:
1 THE KONGORPILLY FARMERS SERVICE
CO-OPERATIVE BANK LTD.NO. 3847
KONGORPILLY.P.O., NORTH PARAVOOR,
ERNAKULAM DISTRICT REPRESENTED BY ITS
PRESIDENT, PIN - 683518
2 THE BOARD OF DIRECTORS OF THE KONGORPILLY
FARMERS SERVICE CO-OPERATIVE BANK LTD.NO. 3847
KONGORPILLY.P.O., NORTH PARAVOOR, ERNAKULAM
DISTRICT REPRESENTED BY ITS PRESIDENT,
PIN - 683518
3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(G)ERNAKULAM, OFFICE OF THE JOINT REGISTRAR OF
CO-OPERATIVE SOCIETIES (G), ERNAKULAM, CIVIL
STATION, KAKKANADU, ERNAKULAM, PIN - 682030
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2
4 O.V.JAYARAJ
KARINGHAMTHURUTH, KOLLERIPARAMBU,
NORTH PARAVUR, ERNAKULAM, PIN - 683518
BY ADVS.
Manu Govind
Dinesh Mathew J Murikan
A.JAYASANKAR(J-114)
VINOD S. PILLAI(K/631/2012)
AHAMMAD SACHIN K.(K/001814/2019)
MOHAMMED THAYIB N.M.(K/1451/2019)
NAYANA VARGHESE(K/283/2021)
SRI.JUSTIN JACOB,SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.11.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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3
JUDGMENT
The petitioner while working as the Assistant
Secretary in the 1st respondent Society herein was given the
charge of the Managing Director with effect from 01.08.2021,
since the then Managing Director retired. The petitioner
represented pointing out that she is to be promoted to the
post of the Managing Director and ultimately the petitioner
was also promoted with effect from 01.08.2021, the date on
which she was put in charge of the said post.
2. When the petitioner was about to retire on
31.05.2023, the 3rd respondent herein issued Ext.P7 dated
24.05.2023, by rescinding the resolution adopted by the 1st
respondent Co-operative Society, deciding to promote the
petitioner to the post of Managing Director. A reading of
Ext.P7 would show that the resolution as above was presented
essentially on the basis of a complaint filed by the 4 th
respondent herein to the effect that the petitioner did not
have the necessary qualification prescribed by the Statute - of
having participated in the short term training program with
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reference to the date of appointment.
3. The order at Ext.P7 issued by the 3rd
respondent herein is challenged by the petitioner essentially
contenting that,
(i) The 3rd respondent has no jurisdiction under
Rule 176 of the Co-operative Society Rules,
in view of the provisions of Section 69(2) of
the Act.
(ii) The petitioner has since obtained the
necessary qualification as evidenced by
Ext.P6 by attending the training program
during February, 2023.
4. I have heard Sri.P.P.Jacob, the learned
counsel for the petitioner and Smt.Nayana Varghese, the
learned counsel for the 4th respondent herein as well as
Sri.K.A.Jayasankar, on behalf of the 1st respondent Society.
5. Sri.P.P.Jacob, the learned counsel for the
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petitioner would submit that in view of the provisions under
section 69(2) referred to earlier, the 3 rd respondent could not
have issued the proceedings at Ext.P7. He would also invite
the attention of this Court to the interim order dated
29.05.2023 and contend that the petitioner has since retired
on 31.05.2023 and going by the principles laid down by this
Court in Ramakrishnan Nair v. State of Kerala [1989 (2)
KLT 100], insofar as the petitioner had admittedly worked as
the Managing Director, no adverse orders are required in this
case. He would also rely on the judgment of the Apex Court in
[2015 (1) KLT 429 (SC)] State of Punjab v. Rafiq Masih
(White Washer) case. I have considered the rival contentions
as well as the connected records.
6. As regards the contentions raised by the
learned counsel for the petitioner with reference to the
provisions of Section 69(2), the said provision reads as under:
"(2) For the purposes of sub-section (1), the
following shall also be deemed to be disputes,
(a) a claim by the society for any debt or
demand due to it from a member or the
nominee, heirs or legal representatives of a
deceased member, whether such debt or
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demand be admitted or not;
(b) a claim by a surety against the principal
debtor, where the society has recovered from
the surety any amount in respect of any debt
or demand due to it from the principal debtor,
as a result of the default of the principal
debtor, whether such debt or demand is
admitted or not;
(c) any dispute arising in connection with the
election of the Board of Management or any
officer of the society;
Explanation:- A dispute arising at any stage of
an election commencing from the convening
of the general body meeting for the election
shall be deemed to be a dispute arising in
connection with the election;
(d) any dispute arising in connection with
employment of officers and servants of the
different classes of societies specified in sub-
section (1) of Sec.80, including their
promotion and inter se seniority."
A reading of the afore provisions would show that
with reference to the provisions of sub section (1), the
disputes referred to in clauses (a) to (d) of sub section (2)
shall also be deemed to be disputes thereunder. Clause (d)
specifically concerns the dispute arising in connection with the
employment of officers/servants of the Co-operative Society.
Therefore, the learned counsel for the petitioner, Sri.P.P.Jacob
is justified in contenting that the disputes as regards the
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employment of Officers in the Co-operative Societies had to be
addressed with reference to section 69(1). But this Court
notices that Rule 176 of the Co-operative Society Rules reads
as under:
"176. Registrar's power to rescind resolution:-
Notwithstanding anything contained in the
bye-laws of a registered society, it shall be
competent for the Registrar to rescind any
resolution of any meeting of any society or the
committee of any society, if it appears to him
that such resolution is ultra vires of the
objects of the society, or is against the
provisions of the Act, Rules, Bye-laws or of
any direction or instructions issued by the
Department, or calculated to disturb the
peaceful and orderly working of the society or
is contrary to the better interest of the
society."
7. A reading of Rule 176 would show that not
withstanding anything contained in the bylaws, the registrar is
competent to rescind any resolution of a Society in the
following cases:
(i) If the resolutions is ultra vires the
objects of the society.
(ii) Is against the provisions of the Act.
(iii) Is against the Co-operative Society
Rules.
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(iv) Is against the bylaws.
(v) is against directions/instructions issued
by the department.
(vi) Is calculated to disrupt the peaceful and
orderly working of the society.
(vii) Is contrary to the better interest of the
Society.
Thus, the Registrar is having power to rescind a resolution if
the same is against the provisions of Statute/Rules. In my
opinion, the power under Rule 176 is an independent power
available to the Registrar dehors the provisions of section
69(2). Section 69(2) (b) can be made applicable only in a
situation where a complaint is filed by third party like 4 th
respondent herein pointing out about the lack of qualification.
But, that does not mean that the Registrar is not
independently entitled under Rule 176 to consider the
question as to whether a particular person was having the
required qualification and therefore, the decision taken by the
resolution of the Society is justifiable or not. In the case at
hand, it might be true that the 3 rd respondent was altered on
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the basis of a complaint filed by a 3 rd party - the 4th
respondent herein. However, even if the said complaint was
not raised before the 3rd respondent and even without
reference to such complaint, if the 3 rd respondent comes to
know that someone has obtained an employment/promotion
in any post in the Society, then the resolution by which the
said promotion has been effected can be reviewed and if the
same as against the provisions of the Act/Rules, the 3 rd
respondent is competent enough to rescind the resolution.
8. In such circumstances, I am of the opinion
that the order at Ext.P7, issued by the 3 rd respondent cannot
be found fault with.
9. Even in such a situation, the question as to
whether the nature of the proceedings to be continued against
the petitioner is to be considered. The Apex Court in State of
Punjab v. Rafiq Masih (White Washer) [2015 (1) KLT
429 (SC)] has laid down the following prepositions:
" 12. It is not possible to postulate all
situations of hardship, which would govern
employees on the issue of recovery, where
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payments have mistakenly been made by the
employer, in excess of their entitlement. Be
that as it may, based on the decisions referred
to herein above, we may, as a ready
reference, summarise the following few
situations, wherein recoveries by the
employers, would be impermissible in law:
(i) Recovery from employees belonging to
Class-III and Class-IV service (or Group 'C' and
Group 'D' service).
(ii) Recovery from retired employees, or
employees who are due to retire within one
year, of the order of recovery.
(iii) Recovery from employees, when the
excess payment has been made for a period
in excess of five years, before the order of
recovery is issued.
(iv) Recovery in cases where an employee
has wrongfully been required to discharge
duties of a higher post, and has been paid
accordingly, even though he should have
rightfully been required to work against an
inferior post.
(v) In any other case, where the Court arrives
at the conclusion, that recovery if made from
the employee, would be iniquitous or harsh or
arbitrary to such an extent, as would far
outweigh the equitable balance of the
employer's right to recover."
In the light of the afore, I am of the opinion that insofar as the
petitioner had already put in service as the Managing Director
till his retirement on 31.05.2023, no coercive proceedings
shall be taken against him as regards the salary etc disbursed
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to him.
10. To the same effect is the judgment of this
Court in Ramakrishnan Nair v. State of Kerala [1989 (2)
KLT 100], wherein also the principles of equity were
extended in almost similar circumstances.
11. Resultantly, I am of the opinion that though
the petitioner may not be entitled to question the legality or
otherwise of Ext.P7 order issued by the 3rd respondent herein,
insofar as he has already retired on 31.05.2023, no coercive
proceedings has to be taken, as regards the pay arrears
already received in the post of Managing Director. It is also
pointed out before this Court that, the petitioner was not
provided salary with respect to the post of Managing Director
in full and only the admitted portion by the Co-operative
Society was paid.
In such circumstances, there would be a direction in
the 1st respondent Society to disburse the difference in pay, by
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virtue of the findings contained in this judgment within a
period of two months from today. Needless to say that, the
petitioner would also be entitled for retirement benefits as
against the afore post.
Sd/-
HARISANKAR V. MENON,
JUDGE
GBG
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APPENDIX OF WP(C) 17245/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE PHOTOCOPY OF THE FEEDER CATEGORY
RULES APPROVED BY THIRD RESPONDENT
DATED 30.8.2013 WITH COVERING LETTER
DATED 1.11.2013
Exhibit P2 TRUE PHOTOCOPY OF RELEVANT PORTION OF
THE SETTLEMENT DATED 5.12.2003 ISSUED
BY THE CONCILIATION OFFICER
Exhibit P3 TRUE PHOTOCOPY OF THE REPRESENTATION
DATED 7.9.21 ISSUED BY THE PETITIONER
BEFORE THE PRESIDENT OF THE SECOND
RESPONDENT
Exhibit P4 TRUE PHOTOCOPY OF THE REPRESENTATION
FILED BY THE EMPLOYEES OF THE FIRST
RESPONDENT DATED 29.7.22
Exhibit P5 TRUE PHOTOCOPY OF THE JUDGMENT IN W.P.
(C) 28275/22 DATED 17.10.22
Exhibit P6 TRUE PHOTOCOPY OF THE CERTIFICATE
ISSUED BY THE AGRICULTURAL CO-
OPERATIVE STAFF TRAINING INSTITUTE
DATED NIL
Exhibit P7 TRUE PHOTOCOPY OF THE ORDER DATED
24.5.23 ISSUED BY THE THIRD RESPONDENT
RESPONDENT EXHIBITS
Exhibit R3(a) True copy of report of the Assistant
Registrar dated 19.09.2022
Exhibit R3(b) True copy of the report of the
Assistant Registrar dated 20.01.2023
Exhibit R3(c) True copy of Circular No. 20/2011 of
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the Registrar of Co-operative
Societies
Exhibit R4(a) True copy of the complaint submitted
by the 4th respondent before the 3rd
respondent dated 27.12.2022
Exhibit R4(b) True copy of qualifying examination
notification No.8/2023 dated
25.05.2023 issued by the Deputy
Registrar of Co-operative Service
Examination Board
Exhibit R4(c) True copy of letter No.S.T.-1387/2023
issued by the Public Information
Officer from the office of Joint
Registrar (General), Kakkanad dated
09.06.2023
Exhibit R4(d) True copy of Circular No.20/2011
issued by the Registrar of Co-
operative Societies dated 25.02.2011
