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2025 DIGILAW 489 (KER)

Venugopalan. P. k. v. State Of Kerala

2025-03-06

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : Muralee Krishna, J. This writ appeal is filed under Section 5 (i) of the Kerala High Court Act , 1958, by the petitioner in W.P.(C)No.5452 of 2023, being dissatisfied by the judgment dated 29.01.2025 passed by the learned Single Judge whereby the writ petition filed by the appellant under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P5 order dated 26.05.2021 issued by the Disciplinary Sub-Committee of the 3 rd respondent Keezhallur Service Cooperative Bank (‘Bank’ in short) demoting the appellant to the post of Senior Clerk from the post of Branch Manager having found him guilty in the disciplinary proceedings and also Ext.P10 order dated 13.01.2023 issued by the 4 th respondent President of the Bank suspending him from service pending disciplinary proceedings, was dismissed. 2. The appellant entered service of the 3 rd respondent Bank in the year 1987 as a Sales Manager and by step by step promotion he reached to the post of Manager of the Bank. On 15.04.2021, Ext.P1 show cause notice was issued to the appellant alleging that as a Branch Manager of the Bank the appellant was deputed by the Secretary to take the valuation of the properties which were offered as security by the members of the Bank for availing loan and the valuation shown by the appellant is an exaggerated amount. To the show cause notice, the appellant gave Ext.P2 reply dated 19.04.2021. However, as per Ext.P3 order dated 26.05.2021 issued by the 4 th respondent, he was placed under suspension. Thereafter a domestic enquiry was conducted by appointing a retired Assistant Registrar as the Enquiry Officer. As per Ext.P4 enquiry report dated 12.11.2021, the allegations against the appellant were found against him and based on that report by Ext.P5 order dated 26.05.2021 of the Bank, the appellant was demoted as Senior Clerk. The appellant then filed Ext.P6 appeal dated 04.02.2022 before the 5 th respondent, the Managing Committee of the Bank. Thereafter with similar allegations, Ext.P7 show cause notice dated 24.11.2022 was issued to him to which the appellant gave Ext.P9 reply dated 07.12.2022. The appellant was again placed under suspension by Ext.P10 order dated 13.01.2023 issued by the 4 th respondent. The appellant then submitted Ext.P11 representation dated 10.02.2023 to the 4 th respondent praying for revocation of the suspension. Thereafter with similar allegations, Ext.P7 show cause notice dated 24.11.2022 was issued to him to which the appellant gave Ext.P9 reply dated 07.12.2022. The appellant was again placed under suspension by Ext.P10 order dated 13.01.2023 issued by the 4 th respondent. The appellant then submitted Ext.P11 representation dated 10.02.2023 to the 4 th respondent praying for revocation of the suspension. It was thereafter, the appellant filed the writ petition which was disposed of by the learned Single Judge issuing a direction to the 3 rd respondent to complete the disciplinary proceedings in accordance with law, expeditiously, preferably within a period of 4 months. 3. Heard the learned counsel for the appellant, the learned Senior Government Pleader and the learned Standing Counsel for respondents. 4. The learned counsel for the appellant argued that before initiating disciplinary proceedings which culminated in Ext.P5 order of punishment no charge memo was issued to the appellant. Now the appellant is retired from service and he was not paid gratuity which cannot be withheld stating the reason of disciplinary proceedings. 5. On the other hand, the learned Standing Counsel for the respondents submitted that a new charge memo was issued to the appellant and disciplinary proceedings were initiated on the basis of that charge memo. Against Ext.P5 order, the appellant preferred Ext.P6 statutory appeal before the 5 th respondent Managing Committee of the Bank. Moreover, the dispute between the appellant and the Bank is the one challengeable before the Co- operative Arbitration Court under Section 69 of the Kerala Co- operative Societies Act, 1969 (‘the Act’ in short). 6. In the writ petition, the appellant challenged Ext.P5 order of punishment by which he was demoted as Senior Clerk from the post of Manager. Against that order, the appellant preferred Ext.P6 appeal before the 5 th respondent. Hence it is premature to seek a relief in respect of the same in a writ petition filed under Article 226 of the Constitution of India. With respect to the prayer to quash Ext.P10 order of suspension is concerned, admittedly the appellant is now retired from service. 7. Apart from the above, it is to be noted that the dispute between the appellant and the Bank is one that can be raised before the Co-operative Arbitration Court under Section 69 of the Act. The said Section reads thus: “69. Disputes to be decided by Co-operative Arbitration Court and Registrar. 7. Apart from the above, it is to be noted that the dispute between the appellant and the Bank is one that can be raised before the Co-operative Arbitration Court under Section 69 of the Act. The said Section reads thus: “69. Disputes to be decided by Co-operative Arbitration Court and Registrar. (1) Notwithstanding anything contained in any law for the time being in force, if a dispute arises:- (a) among members, past members and persons claiming through members, past members and deceased members; or (b)between a member, past member or person claiming through a member, a past member or deceased member and the society, its committee or any officer, agent or employee of the society; or (c)between the society or its committee and any past committee any officer, agent or employee or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society; or (d)between the society and any other society; or (e)between a society and the members of a society affiliated to it ; or (f)between the society and a person, other than a member of the society, who has been granted a loan by the society or with whom the society has or had business transactions or any person claiming through such a person; or (g)between the society and a surety of a member, past member, deceased member or employee or a person, other than a member, who has been granted a loan by the society, whether such a surety is or is not a member of the society; or [(h) between the society and a creditor of the society; or] [(i) between the co-operative society and its subsidiaries under section 14AA; or (j) between the members of the partnership formed under section 14B, such dispute shall be referred to the Co- operative Arbitration Court constituted under section 70A in the case of non-monetary disputes and to the Registrar, in the case of monetary disputes; and the Arbitration Court, or the Registrar, as the case may be, shall decide such dispute and no other court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute.] (2) For the purposes of sub-section (1), the following shall also be deemed to be disputes, namely: (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 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 section 80, including their promotion and inter se seniority. (3)No dispute arising in connection with the election of the Board of Management or an officer of the society shall be entertained by the Co-operative Arbitration Court unless it is referred to it within one months from the date of the election. (4) All monetary disputes mentioned in Schedule III to the Act shall be filed within the time limit specified in the said Schedule.” 8. In Sharath Jyothi M v. Dharmadam Service Co- operative Bank [2015 (3) KLT SN 61] a learned Single Judge of this Court held thus: “18. In Raveendran P. S. (supra) the facts are that an employee of a co - operative society filed a writ petition raising the dispute of seniority. This Court, per a learned Single Judge, directed the Joint Registrar to decide the issue. In compliance thereof, the Joint Registrar passed an order, which was challenged before this Court as being without any jurisdiction. A learned Single Judge allowed the writ petition. In appeal, a learned Division Bench, affirming the judgment in the writ petition, has held thus: "3. We are of the view, after the coming into force of Act 1 of 2000 with effect from 2-1-2003, the dispute in connection with the employment of officers and servants of different classes of societies specified in sub-section (1) of S.8 C including their promotion and inter se seniority has to be decided by the Arbitration Court and not by the Joint Registrar or by the Government. The mere fact that this Court in a writ petition filed by the Petitioners directed the Joint Registrar to decide the dispute cannot amount to conferring jurisdiction on the Joint Registrar to decide the dispute for which he has no jurisdiction. Judgment rendered by this Court would not confer any jurisdiction or authority on the Joint Registrar when legislature has conferred jurisdiction on the Arbitration Court. When this Court directs consideration of a matter by the Joint Registrar the Joint Registrar can decide that matter only in accordance with law. Judgment rendered by this Court would not confer any jurisdiction or authority on the Joint Registrar when legislature has conferred jurisdiction on the Arbitration Court. When this Court directs consideration of a matter by the Joint Registrar the Joint Registrar can decide that matter only in accordance with law. Legislature has conferred jurisdiction on the Arbitration Court to decide the question of seniority and promotion and therefore the order passed by the Joint Registrar is without jurisdiction. Learned Single Judge has rightly allowed the writ petition and quashed the order passed by the Government confirming the order of the Joint Registrar." 19. From a perusal of Raveendran P. S. (supra) it is evident the case was decided not on the issue of alternative remedy, but on that of conferring jurisdiction on an authority who, in the first place, does not have it. Nevertheless, the decision illustrates the need of approaching a competent forum of first instance for deciding a service dispute. 20. In Guwahati Carbon Ltd. (supra), almost under identical fact situation as this case has, an assessee suffered an adverse order from an Appellate Tax Tribunal. Aggrieved by the said order, the assessee filed a writ petition under Art.226 and Art.227 of the Constitution of India. Though the learned Single Judge had admitted the writ petition on the first date of hearing, subsequently thought it fit to dispose of the writ petition on the ground that the respondent can avail himself of an alternative remedy as provided in the Act. Further aggrieved, the assessee carried the matter in appeal to the Division Bench of the Calcutta High Court, which allowed the appeal on the ground that a Writ Court, in exercise of its powers under Art.226 of the Constitution of India, has vast powers to decide any question that may arise under the provisions of the Act. Finally when the matter reached the Apex Court, it is held thus: "4. Finally when the matter reached the Apex Court, it is held thus: "4. We reiterate that the High Court, under Art.226 of the Constitution of India, has vast powers as this Court has under Art.32 of the Constitution of India, but such powers can only be exercised in those cases where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice." 21. Given the above emphatic proposition of law, I cannot but hold that the petitioner's remedy lies elsewhere and that recourse to Art.226 of Constitution is, at least, premature, for none of the three exceptions to the rule of alternative remedy could be satisfied by the petitioner, as being applicable to him”. 9. In B. Preethakumari v. Joint Registrar of Co- operative Societies (General), Thiruvananthapuram [2022 (6) KHC SN 8] a three-judge Bench of this Court held thus: “25. The latter part of S.69(1) of the KCS Act (i.e., just before the wordings in Sub-section (2) of S.69) mandates that no other court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such disputes. So, the mandate in the second part of S.69(1) supra is that no other court or other authority shall have the jurisdiction to entertain any suit or other proceedings in respect of such disputes, which are to be decided by the Co - operative Arbitration Court and the Registrar, as provided in that Section. The second part of S.69(1) of the KCS Act (i.e., just before the wordings in Sub-section (2) of S.69) stipulates that such disputes, viz. disputes enumerated in clauses (a) to (h) under S.69(1) shall be referred to the Co - operative Arbitration Court constituted under S.70A, in the case of non - monetary disputes and to the Registrar in the case of monetary disputes and further that, the Arbitration Court or the Registrar, as the case may be, shall decide such dispute and that no other court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute. In other words, where the dispute which falls under clauses (a) to (h) of S.69(1) is raised, then such disputes, which are non - monetary disputes, will have to be referred to the Co - operative Arbitration Court constituted under S.70A and such disputes, which are monetary disputes, will have be referred to the Registrar and it is for such forum to decide such disputes and no court or authority, other than the Co - operative Arbitration Court, in the case of such non - monetary disputes and Registrar in the case of monetary disputes shall have the jurisdiction to entertain any suit or any other proceedings in respect of such disputes. So also, S.100 of the KCS Act deals with the bar of jurisdiction of courts, wherein it is stipulated therein that no civil or revenue court shall have any jurisdiction, in respect of any matter for which provision is made in the Act, viz., KCS Act. The above said provision in the matter of Co - operative Arbitration Court, has been introduced as an amendment as per State Act 1 of 2000 made effective from 2.3.2003”. xxxxxxxxx 146.The legal position regarding the interplay of issues of Art.12 State & Art.226 and independent maintainability of Art.226, in the case of co - operative societies have already been dealt with in detail by the Larger Bench of this Court in Association of Milma Officers' case supra ( 2015 (1) KLT 849 (LB)) as well as by the Full Bench of this Court in John Kuriakose's case supra ( 2015 (1) KLT 720 (F.B.)). The dictum laid down in the earlier Full Bench of this Court in Bhaskaran's case supra ( 1987 (2) KLT 903 (FB)), has also been explained and modulated by the Larger Bench in Association of Milma Officers' case supra ( 2015 (1) KLT 849 (LB)). Therefore, we need not get into any of those issues, except to state that, even if writ remedy is maintainable in regard to any impugned action of a co - operative society, on account of contravention of statutory mandate, the exercise of the jurisdiction is subject to the well - known rule of prudence and discretion that, where efficacious and alternate remedy is available, then the party will have to be delegated to such alternate remedies”. (emphasis supplied) 10. (emphasis supplied) 10. In Veerankavu Welfare Co-operative Society Ltd v. C Sindhu Kumari [ 2025 (1) KHC 421 ] by relying on the judgment of the Apex Court in Annamma K.A v. Secretary, Cochin Co-operative Hospital Society Ltd [2018 (1) KHC 258] this Court held thus: “The KCS Act and Rules provides for a hierarchy of remedies against an order imposing penalty on an employee. R.198 of the KCS Rules deals with disciplinary action. R.198(4) provides for appeal against an order imposing penalty. The competent appellate authority is also designated thereunder. S.69(2)(d) of the KCS Act provides that any dispute, arising in connection with employment of officers and servants of the different classes of societies specified in S.80(1), including their promotion and inter se seniority shall also be deemed to be disputes within the purview of S.69(1) of the KCS Act. S.70 of the KCS Act deals with award on disputes. S.70A deals with constitution of the Co- operative Arbitration Courts. Thus against any penalty imposed on an employee of a Co - operative Society including dismissal for misconduct, a remedy lies before the Co - operative Arbitration Court under S.69(2) of the KCS Act. S.82(1)(a) of the KCS Act provides for appeal to the Tribunal against an award of the Co - operative Arbitration Court made under S.70(1). S.82 of the KCS Act states that an order passed by the Tribunal, under sub-section (1), shall be final. (emphasis supplied) 11. In view of Section 69 of the Act and the law laid down in the aforesaid judgments, it is clear that the remedy of the appellant against Ext.P5 and P10 orders is before the Co-operative Arbitration Court. In such circumstances, we find no sufficient ground to interfere with the impugned judgment of the learned Single Judge. In the result, the writ appeal is dismissed; however, leaving open all legal and factual contentions raised by both sides, including the appellant's claim for gratuity, to be agitated before the appropriate Forum.