(2012) 266 KLR 594 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN FRIDAY, THE 6TH DAY OF JULY 2012/15TH ASHADHA 1934 WP(C).No. 15440 of 2012 (D) --------------------------- APPEAL.14/2012 of KERALA CO-OP.TRIBUNAL,TVM. PETITIONER(S): ---------------------------- CHERANALLUR SERVICE CO-OPERATIVE BANK LTD., NO.62,CHERANALLUR P.O, KOCHI, ERNAKULAM, PIN 682 034,REPRESENTED BY ITS SECRETARY. BY ADVS.SRI.N.K.SUBRAMANIAN SRI.S.ANANTHAKRISHNAN RESPONDENT(S): ------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 2. REGISTRAR OF CO-OPERATIVE SOCIETIES, P.O.BOX NO. 185,. STATUE, THIRUVANANTHAPURAM-695 001 3. KERALA CO-OPERATIVE TRIBUNAL, L.VANROSS JUNCTION, NEAR JUBILEE HOSPITAL, UNIVERSITY P.O., THIRUVANANTHAPURAM-695 034 4. KERALA CO-OPERATIVE ARBITRATION COURT, NEAR BSNL OFFICE, KAITHAMUKKU, PORT P.O. THIRUVANANTHAPURAM-695 023 5. K.G., RADHAKRISHNAN, 'USHUS' PONEKKARA P.O., AIMS PONEKKARA P.O., KOCHI, ERNAKULAM DISTRICT, PIN-682 041 BY SPL.GOVERNMENT PLEADER SRI.D.SOAMSUNDRAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.15440/2012 APPENDIX PETITIONER'S EXHIBITS:
RESPONDENT'S EXHIBITS:
/TRUE COPY/ P.A.TO.JUDGE sts (CR) P.N.RAVINDRAN, J. --------------------------- WP(C) No.15440 of 2012 ---------------------------------- Dated this the 6th day of July, 2012 Head Note:- Kerala Co-operative Societies Act, 1969 - Section 69(2)(d) - "dispute" - "disciplinary proceedings" - Co-operative Arbitration Court - disputes concerning denial of employment, removal from service, dismissal from service, etc., will be disputes which could be adjudicated by the Co-operative Arbitration Court. Kerala Co-operative Societies Act, 1969 - Sections 69(2) & 100 - Jurisdiction of a civil or revenue court - Reinstatement in service of a workman - Co-operative Arbitration Court - Merely because section 100 bars the jurisdiction of a civil court in respect of matters for which provision has been made in the Act, it cannot be said that the Co-operative Arbitration Court could not have entertained the dispute. In the absence of a challenge by the petitioner to the constitutional validity of sub-section (2) of section 69 of the Act, the contention that the Co-operative Arbitration Court cannot order reinstatement, is liable to be rejected. Kerala Co-operative Societies Act, 1969 - Section 70A - Co-operative Arbitration Court is not a forum subordinate to the Registrar. Kerala Co-operative Societies Act, 1969 - Section 70 - the stipulation regarding the time limit of one year for passing the award is not mandatory. J U D G M E N T The petitioner, a co-operative society registered under the Kerala Co-operative Societies Act, 1969, has filed this writ petition challenging Ext.P2 order passed by the Co-operative Arbitration Court constituted under section 70A of the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as "the Act" for short), over ruling the preliminary objection raised by the petitioner society to the maintainability of an Arbitration Case instituted by the fifth respondent and Ext.P1 order passed by the Kerala Co-operative Tribunal on appeal filed by the petitioner society, upholding Ext.P2. The brief facts of the case are as follows: 2. The fifth respondent herein, who entered service as Junior Clerk in the petitioner society on 18.10.1979, was appointed Secretary of the petitioner society with effect from 21.10.1995. He was placed under suspension on 12.6.2007 pending disciplinary action. Months later, a memo of charges dated 23.2.2008 was served on him. On 1.11.2008, the fifth respondent submitted a written statement of defence denying and disputing the allegations levelled against him. A domestic enquiry was held and the enquiry officer submitted a report dated 30.3.2009 finding him guilty. Thereupon, the sub committee of the petitioner society issued a show cause notice dated 27.4.2009 to the fifth respondent and he submitted a detailed reply dated 27.5.2009. The sub committee of the petitioner society that met on 1.6.2009 resolved to dismiss the fifth respondent from service with effect from 12.6.2007, the date on which he was placed under suspension. Though the fifth respondent filed an appeal before the Managing Committee of the petitioner society on 26.9.2009, the appeal was rejected on 5.12.2009. 3. Aggrieved by the order passed by the sub committee dismissing him from service and the order passed by the Managing Committee rejecting his appeal, the fifth respondent instituted A.R.C.No.29 of 2010 under section 69 of the Act, before the Co- operative Arbitration Court. The petitioner society, which is the defendant in the Arbitration Case, filed Ext.P4 written statement dated 19.1.2011 wherein it did not question the jurisdiction of the Co- operative Arbitration Court to entertain the dispute. Simultaneously, the petitioner society filed Ext.P5 preliminary objections wherein it was contended that as the definition of the term "dispute" does not take in disciplinary action, the Arbitration Case is not maintainable. It was contended that clause (d) of sub-section (2) of section 69 of the Act does not relate to disciplinary proceedings, or a dispute raised by a dismissed employee of a co-operative society and therefore, the Co- operative Arbitration Court does not have jurisdiction to entertain the dispute. The petitioner society also filed Ext.P6 application (I.A.No.13 of 2011) requesting the Co-operative Arbitration Court to take up the issue regarding the maintainability of the Arbitration Case as a preliminary issue and to decide it, before proceeding to decide the Arbitration Case on the merits. 4. The Co-operative Arbitration Court considered the preliminary objection raised by the petitioner society and I.A.No.13 of 2011 filed by the petitioner society to take up preliminary issue for consideration and passed Ext.P2 order dated 11.8.2011 overruling the preliminary objection. The Co-operative Arbitration Court held that it had jurisdiction to entertain the dispute raised by the fifth respondent by virtue of the provisions contained in clause (d) of sub-section (2) of section 69 of the Act. Aggrieved thereby, the petitioner society filed an appeal before the Kerala Co-operative Tribunal. By Ext.P1 order passed on 9.5.2012, the Kerala Co-operative Tribunal dismissed the appeal and confirmed Ext.P2 order. Hence this writ petition seeking the following reliefs: (i) Call for the records leading to Ext.P1 and Ext.P2 passed by 3rd and 4th respondents respectively, by issuing a writ in the nature of certiorari or any other writ, order or direction; (ii) To quash Ext.P1 and Ext.P2 issued by 3rd and 4th respondents respectively; (iii) To declare that the 4th respondent lacks jurisdiction to entertain and consider disciplinary proceedings/ disciplinary action of the employees of Co-operative Societies under Section 69 of the Kerala Co-operative Societies Act. (iv) Stay all further proceedings in A.R.C.No.29 of 2010 on the file of the Kerala Co-operative Arbitration Court. 5. The main contention raised by the petitioner is that the term "dispute" as defined in section 2(i) of the Act takes in only disputes which can ordinarily be tried by the civil courts, whose jurisdiction is barred by virtue of the provisions contained in section 100 of the Act. Yet another contention raised is that the term "disciplinary proceedings" is singularly lacking either in the definition of the term "dispute" occurring in section 2(i) of the Act or in clause (d) of sub-section (2) of section 69 of the Act and therefore, as the legislature did not intend to make section 69(2) of the Act applicable to disputes arising out of disciplinary proceedings, it has to be held that the Co-operative Arbitration Court has no jurisdiction to entertain the case. Yet another contention raised is that the Co-operative Arbitration Court is a forum under the Registrar and therefore, it is not an independent forum. It is also contended that the prescription of the time limit of one year within which the Co-operative Arbitration Court has to pass an award, indicates that it is not an independent forum. Various other related contentions are also raised in the writ petition. 6. I heard Sri.N.K.Subramanian, learned counsel appearing for the petitioner. The learned counsel appearing for the petitioner contended relying on the decision of the Apex Court in Gujarat State Co-operative Land Development Bank Ltd. v. P.R.Mankad and others [(1979) 3 SCC 123] that the definition of the term dispute, occurring in section 2(i) of the Act cannot take in a dispute arising out of disciplinary action and therefore, the arbitration case filed by the fifth respondent in the Co-operative Arbitration Court is not maintainable for the reason that what is sought therein is the relief of reinstatement in service, which the ordinary civil court is not competent to grant. The learned counsel contended that the remedy of an employee of a co-operative society, if he is aggrieved by punishment of dismissal from service, is to invoke the jurisdiction of the Registrar under rule 176 of the Kerala Co-operative Societies Rules and if he is a workman governed by the Industrial Disputes Act, 1947, to raise a dispute under the provisions of the said Act. The learned counsel for the petitioner contended relying on the aforesaid decision of the Apex Court that the dispute raised by the fifth respondent is not a dispute touching the business, management, constitution and establishment of the petitioner society and therefore, for that reason also, the Co-operative Arbitration Court has no jurisdiction to entertain the dispute. The learned counsel contended with reference to the decision of the Apex Court in Sant Lal Gupta and others v. Modern Cooperative Group Housing society Limited and Others [(2010) 13 SCC 336] that the fiction introduced by clause (2) of sub-section (2) of section 69 of the Act cannot be given a larger effect than what was intended, that the legislature could have expressly stated in clause (d) of sub-section (2) of section 69 of the Act that a dispute arising out of disciplinary action can also be referred to the Arbitration Court, but it did not do so and therefore, what the legislature designedly omitted cannot be read into the law to hold that a dispute arising out of disciplinary action will be a dispute which can be raised before the Co-operative Arbitration Court. The learned counsel lastly contended that a contract of service cannot be enforced and therefore, a wider meaning cannot be attributed to the fiction in clause (d) of sub-section (2) of section 69 of the Act. 7. I have considered the submissions made at the Bar by the learned counsel appearing for the petitioner. I have also gone through the impugned orders and the preliminary objection raised by the petitioner before the Co-operative Arbitration Court. Shorn of details, the main contention of the petitioner is that the dispute raised by the fifth respondent is not a dispute as defined in the Act. It is also contended that even if it is a dispute, as a contract of service cannot be specifically enforced, it must be taken that legislature has designedly omitted the words "disciplinary proceedings" when it enacted section 69 (2) of the Act. 8. The term "dispute" is defined in clause (i) of section 2 of the Act as follows: "(i) "dispute" means any matter touching the business, constitution, establishments or management of a society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a society, whether such claim be admitted or not." As held by the Apex Court in Co-operative Central Bank Ltd. v. Additional Industrial Tribunal (AIR 1970 SC 245), whatever a society does or is necessarily required to do for the purpose of carrying out its objects, such as laying down the conditions of service of its employees, cannot be said to be a part of its business and therefore, a dispute relating to conditions of service of workmen employed by a society cannot be held to be a dispute touching the business of the society. In the very same decision, the Apex Court also held that such a dispute is also not a dispute touching the management of the society. In Gujarat State Co-operative Land Development Bank Ltd. v. P.R.Mankad and others (supra) the Apex Court held with reference to the provisions contained in the Gujarat Co-operative Societies Act, 1961 and the Bombay Co-operative Societies Act, 1925, both of which did not contain a definition of the term "dispute", that the term "any dispute" used in the aforesaid enactments has to be used in a narrower sense, limited to contested claims of a civil nature, which could have been decided by the civil or revenue courts, but for the provisions with regard to compulsory arbitration by the Registrar or his nominee, found in section 54 of the Bombay Co-operative Societies Act, 1925 and section 96 of the Gujarat Co-operative Societies Act, 1961. The Apex Court held that compulsory arbitration by the Registrar on a reference under section 54 of the Bombay Co- operative Societies Act, 1925 and section 96 of the Gujarat Co- operative Societies Act, 1961 is only a substitute for adjudication of disputes of a civil nature normally tried by the civil courts. The Apex Court also referred to and relied on sub-section (1) of section 160 of the Gujarat Co-operative Societies Act, 1961 wherein it was stipulated that save as expressly provided in the Act, no civil or revenue court shall have any jurisdiction in respect of any dispute required to be referred to the Registrar or his nominee or board of nominees, for decision. It was held that the aforesaid provision only bars the jurisdiction of civil or revenue court and not of the labour court or the industrial tribunal to adjudicate industrial disputes and that the legislature never intended to oust the jurisdiction of the labour court or the industrial tribunal to determine claims and industrial disputes which cannot be adjudicated by the ordinary civil courts. 9. Section 100 of the Act stipulates that no civil or revenue court shall have any jurisdiction in respect of any matter for which provision is made in the Act. Section 69(1) of the Act as it stood immediately before it was amended by Act 1 of 2000, with effect from 2.1.2003, reads as follows: "69. Disputes to be referred to 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 members 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 society is or is not a member of the society; or (h) between the society and a creditor of the society, such dispute shall be referred to the Registrar for decision, and no court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute. [Explanation: - In this section and in S.70, the term "Registrar" means the Registrar of Co-operative Societies appointed under sub-sec.(1) of S.3 and includes any person on whom the powers of the Registrar under this Section and S.70 are conferred]. (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; (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 Registrar unless it is referred to it within one month from the date of the election. (4) If any question arises whether a dispute referred to the Registrar under the section is a dispute as defined in clause (i) of Sec.2 the decision thereon of the Registrar shall be final." 10. By Act 1 of 2000, which came into force with effect from 2.1.2003, section 69 of the Act was amended. Section 69 of the Act, as amended by Act 1 of 2000, reads as follows: "69. Disputes to be decided by Co-operative Arbitration Court.- (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; such dispute, shall be referred to and decided by the Co- operative Arbitration Court constituted under Sec.70A, and no other court or 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 society specified in sub-section (1) of Sec.80, including their promotion and inter se seniority. (3) No dispute arising in connection with the election of the Board of Management or any officer of the society shall be entertained by the Co-operative Arbitration Court unless it is referred to it within one month from the date of the election." 11. In clause (d) of sub-section (2) of section 69 of the Act as amended, it is provided that any dispute in connection with the 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, shall be deemed to be a dispute for the purposes of sub-section (1) of section 69 of the Act. As per the stipulations in sub-section (1) of section 69 of the Act as amended, if a dispute arises 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, such dispute has to be referred to the Co-operative Arbitration Court constituted under section 70A of the Act, in the case of non- monetary disputes and to the Registrar, in the case of monetary disputes. It is also stipulated in express terms that in such eventualities, 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. Interpreting clause (d) of sub-section (2) of section 69 of the Act, a learned single judge of this Court held in Prakasini v. Joint Registrar [2006 (1) KLT 199] that on and with effect from 2.1.2003, disputes relating to service conditions of employees can be resolved only by the Co-operative Arbitration Court and not by the Registrar of Co-operative Societies exercising jurisdiction under rule 176 of the Kerala Co-operative Societies Rules. The said decision was upheld by a Division Bench of this Court in Raveendran v. State of Kerala [2007 (3) KLT 558]. The Division Bench held that it is clear from clause (d) of sub-section (2) of section 69 of the Act that any dispute arising in connection with employees or officers and servants of the different classes of the societies, including their promotion and inter-se seniority, is to be decided by the Co- operative Arbitration Court. The Division Bench also placed reliance on an unreported decision of this Court in W.A.No.2116 of 2006. 12. The very issue raised by the petitioner in the instant case, namely the scope of the deeming provision in sub-section (2) of section 69 of the Act, arose for consideration before a learned single judge of this Court in Edava Service Co-operative Bank Ltd. v. Co- operative Arbitration Court (2008 (3) KLT 780). In that case also, an employee of co-operative society who was dismissed from service moved the Co-operative Arbitration Court seeking redressal of his grievances. The employer bank raised a preliminary objection that dismissal from service is not a matter falling under section 69(1) of the Act and no question of reinstatement in service can be considered by the Co-operative Arbitration Court. The preliminary objection was overruled. Challenging the order passed by the Co-operative Arbitration Court, the employer bank moved this Court. It was contended that section 69(2)(d) of the Act has been couched in such a way that it cannot include a dispute touching the dismissal of an employee from service or reinstatement in service. It was also contended that the specific inclusion of the words "including their promotion and inter-se seniority" in clause (d) of sub-section (2) of section 69 of the Act is indicative of the legislative intention to exclude a dispute regarding dismissal from service, from the scope of the deeming provision contained in sub-section (2) of section 69 of the Act. Overruling the said contention, a learned single Judge of this Court held in Edava Service Co-operative Bank Ltd. v. Co- operative Arbitration Court (supra) as follows: "3. S.69(1)(c) provides that notwithstanding anything contained in any law for the time being in force, if a dispute arises, between the society and any officer, agent or employee or any past officer, past agent or past employee, such dispute 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 the Arbitration Court, or the Registrar, as the case may be, shall decide such dispute and no othe Court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute. Sec.69(2)(d) provides that any dispute arising in connection with employment of officers and servants of the different classes of societies specified in sub-s.(1) of S.80, including their promotion and inter se seniority, shall also be deemed to be disputes, for the purposes of S.69(1). A dispute regarding disciplinary proceedings and punishment, including an order of dismissal is a dispute arising in connection with that employment since dismissal is a mode of termination of employment and the reliefs that could be granted to a person aggrieved by dismissal, are matters referable to the employment of the officer or the servant in question. Therefore, a dispute relating to the dismissal of an employee of a co-operative society and who thereby becomes a past employee is a matter that falls within the purview of disputes which are to be decided by the Co-operative Arbitration Court in terms of S.69(1) of the Act. 4. Now I shall consider the argument regarding the inclusion of the words "including their promotion and inter se seniority" in S.69(2)(d) of the Act. 5. Sub-s.(2) of S.69 opens with a deeming provision, which is a legislative device applied to create a legal fiction; to give a term a particular meaning by the application of such deeming provision. It is settled law that where a legal fiction is created, full effect must be given to it and it should be carried to its logical end. - Boucher Pierre Andre v. Superintendent, Central Jail (AIR 1975 SC 164). In construing and applying a deeming provision, the limits of that deeming provision have to be determined and within those limits, the situation that is to be deemed has to be permitted to flow freely. While a fiction cannot be extended beyond its legitimate field, it must be allowed full operation within its intended sphere - Ali v. Kunjannamma (1975 KLT 527). 6. So understood, the legislative mandate contained in the opening words of sub-s.(2) of S.69 read with cl.(2) of that sub-section is to treat any dispute arising in connection with employment of officers and servants as a dispute for the purpose of sub-s.(1) of S.69. The object of that fiction is to bring all disputes in connection with employment in a co-operative society under the purview of arbitration to the exclusion of other courts and authorities. Therefore, in interpreting the said provision, that fiction has to be carried to its logical conclusion, subject only to the inhibition that such fiction should not be extended beyond its legitimate field. The mode in which the deeming provision is used in S.69 is only to give full play to the fiction and the object of its creation, namely, the exclusive conferment of authority with the Co-operative Arbitration Courts or Arbitrators, as the case may be, to decide the disputes. 7. Not only that, the words relied on, on behalf of the petitioners, only further enlarge the scope of the term "dispute". All that is provided is that any dispute as to promotion and inter se seniority would also fall within the scope of the term "dispute" for the purpose of S.69(1). There appears to be a reason for such an inclusion. A plain reading of S.69(1)(c) may generate an argument that disputes between officers and employees or between past officers or past employees of a society are not disputes which fall within the sweep of that provision, though disputes between officers or employees of a society are intricately connected with the affairs of the society and matters touching its business and therefore that could fall within S.69(1)(c) of the Act. The inclusion of the words "including their promotion and inter se seniority" as the last limb of S.69(2)(d) only clarifies the position that notwithstanding any vagueness that may be pointed out in that regard in S.69(1)(c), such disputes also fall within the purview of that provision. For the foregoing reasons, this Writ Petition fails. The same is accordingly dismissed in limine." 13. Aggrieved by the judgment of the learned single Judge, the Edava Service Co-operative Bank filed W.A.No.2057 of 2008. Affirming the decision of the learned single Judge, the Division Bench of this Court held as follows:- "5. Section 2(i) of the Act reads as follows: "(i) "dispute" means any matter touching the business, constitution, establishments or management of a society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a society, whether such claim be admitted or not." 6. The words 'any matter touching establishments' used in the above definition will include all disputes concerning the service conditions of employees working under a society. Section 69(1)(c) of the Act reads as follows: "(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;" Going by the above provision, the Arbitration Court has jurisdiction to deal with a dispute between the Society and a past (dismissed) employee of the Society. 7. Section 69(2)(d) of the Act reads as follows: "(2) For the purposes of sub-section (1), the following shall also be deemed to be disputes, namely:- XX XX XX (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." 8. Going by above quoted clause (d), any dispute arising in connection with employment of officers and servants of different classes of society will be a dispute. Dismissal from service is indisputably a dispute in connection with employment. As a measure of abundant caution, it was further added that disputes relating to promotion and seniority will also be covered by the term, dispute. Even without the words "promotion and inter se seniority", the disputes concerning, promotion, seniority, etc. will be covered by clause (d), being disputes in connection with employment. The above words were not meant to be exhaustive or restrictive, but only explain what is already included. So, the decision of the Apex Court relied on by the appellants has no application, whatsoever, to the facts of this case. Going by the plain meaning of the above quoted provision, it can be safely concluded that all disputes concerning denial of employment, removal from service, dismissal from service, etc. will be disputes which could be adjudicated by the Co-operative Arbitration Court. Any other interpretation will not do justice to the scheme of the Act. The jurisdiction specifically conferred by the legislature cannot be taken away by this Court, by undertaking an exercise of interpretation. So, we agree with the reasons and conclusions of the learned Single Judge. In the result, the Writ Appeal fails and it is dismissed." 14. The Division Bench held that the words "including their promotion and inter-se seniority" are not meant to be exhaustive or restrictive, but only explanatory of what is already included and that, dismissal from service is indisputably a dispute in connection with employment. The Division Bench held that going by the plain meaning of the provisions contained in clause (d) of sub-section (2) of section 69 of the Act, it can be safely concluded that disputes concerning denial of employment, removal from service, dismissal from service, etc., will be disputes which could be adjudicated by the Co-operative Arbitration Court, that any other interpretation will not do justice to the scheme of the Act and that, by an interpretative exercise, this Court cannot take away the jurisdiction specifically conferred by the legislature. Interpreting the very same provisions, a learned single judge of this Court held in A.R.Nagar Service Co-operative Bank v. State of Kerala [2010 (1) KLT 55] that in so far as employees governed by the Industrial Disputes Act, 1947 are concerned, section 69 of the Act cannot exclude the jurisdiction of the Labour Court or the Industrial Tribunal for the reason that Presidential assent had not been obtained for Act 1 of 2000. It was held that the jurisdiction to decide any dispute of the nature mentioned in clause (d) of sub-section (2) of section 69 of the Act, vests concurrently with the Labour Courts or Industrial Tribunals under the Industrial Disputes Act, 1947 and with the Co-operative Arbitration Court and the Registrar as the case may be, depending on whether the dispute is a non-monetary dispute or a monetary dispute. The same view was taken by a Division Bench of this Court of which I was a member, in Thodupuzha Taluk General Marketing Co-operative Society v. Michael Sebastian [2010 (1) KLT 938], wherein the Division Bench held that in view of clause (c) of sub-section (1) read with clause (d) of sub-section (2) of section 69 of the Act, any dispute arising in connection with employment of officers and servants of a co-operative society is a dispute which can be resolved under section 69(1) of the Act. 15. The learned counsel for the petitioner however contended relying on the decision of the Apex Court in Sant Lal Gupta and Others v. Modern Co-operative Group Housing Society Limited and Others (supra) that the court has to ascertain for what purpose the fiction is created and the fiction must be limited to the purpose indicated by the context and cannot be given a larger effect. In that case, after holding that rule 36(3) of the Delhi Co-operative Societies Rules, 1973 did not contain a deeming provision, the Apex Court held that it is the exclusive prerogative of the legislature to create a legal fiction meaning thereby to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist. It was also held that even if a legal fiction is created by the legislature, the court has to ascertain for what purpose the fiction is created, and it must be limited to the purpose indicated by the context and cannot be given a larger effect. In the instant case, it is clear from the provisions contained in sub-section (2) of section 69 of the Act that the legislature intended to treat any dispute arising in connection with employment of officers and servants of the different classes of societies, including their promotion and inter-se seniority as a dispute. The intention of the legislature was to bring a dispute arising in connection with the employment of officers and servants of the different classes of societies within the meaning of the term 'dispute' as defined in the Act. As held by the learned single judge in Edava Service Co-operative Bank Ltd. v. Co-operative Arbitration Court (supra) which was affirmed by the Division Bench in W.A.No.2057 of 2008, while a fiction cannot be extended beyond its legitimate field, full effect has to be given and the fiction carried to its logical end and the situation that is deemed to exist has to be permitted to flow freely. The interpretation placed by this Court in the aforesaid decisions on sub-section (2)(d) of section 69 of the Act does not in my opinion, enlarge the purpose for which the legislature created the fiction or give it a larger meaning. In the light of the authoritative pronouncement of this Court on the issue, I find no merit in the contention raised by the petitioner that clause (d) of sub-section (2) of section 69 of the Act does not take in its fold, a dispute arising out of the dismissal of an employee of a co-operative society from service. I accordingly overrule the said contention. 16. That takes me to the question whether there is any merit in the contention of the petitioner that the Co-operative Arbitration Court cannot entertain the dispute for the reason that a civil court could not have entertained the dispute. It is relevant in this context to note that the petitioner does not challenge the validity of sub-section (2) of section 69 of the Act. His contention is that a civil court cannot enforce a contract of service, that only disputes which a civil court could have ordinarily entertained can be referred to arbitration under the provisions of section 69(1) of the Act as it stood before 2.1.2003 and therefore, the Co-operative Arbitration Court can have jurisdiction only in respect of such cases. In my opinion, the said contention is plainly untenable. It is open to the legislature, as the Parliament did in the case of the Industrial Disputes Act, 1947 to enact a provision empowering a specified authority to interfere even with an order of dismissal from service and to order reinstatement. If that be so, in the absence of a challenge to the validity of sub-section (2) of section 69 of the Act, I find no merit in the contention of the petitioner that the Co-operative Arbitration Court has no jurisdiction to entertain the dispute. That apart, as held by this Court in A.R.Nagar Service Co- operative Bank v. State of Kerala (supra) and Thodupuzha Taluk General Marketing Co-operative Society v. Michael Sebastian (supra) in the case of employees who are governed by the Industrial Disputes Act, the jurisdiction is concurrent. If the Labour Court or the Industrial Tribunal constituted under the Industrial Disputes Act can order reinstatement in service of a workman who is governed by the Industrial Disputes Act, I find nothing wrong in the Co-operative Arbitration Court directing reinstatement in service. That apart, under section 100 of the Act, the jurisdiction of a civil or revenue court is barred only in respect of any matter for which any provision is made in the Act. Section 69 of the Act makes a provision for adjudication of disputes in connection with employment of officers and servants of the different classes of co-operative societies, which as held by this Court would take in disputes arising under disciplinary proceedings also. Therefore, merely because section 100 bars the jurisdiction of a civil court in respect of matters for which provision has been made in the Act, it cannot be said that the Co-operative Arbitration Court could not have entertained the dispute. In the absence of a challenge by the petitioner to the constitutional validity of sub-section (2) of section 69 of the Act, the contention that the Co-operative Arbitration Court cannot order reinstatement, is liable to be rejected. 17. That takes me to the question whether the Co-operative Arbitration Court is a court subordinate to the Registrar as contended by the petitioner. The Co-operative Arbitration Court is constituted under section 70A of the Act. Section 70A of the Act reads as follows: "70A. Co-operative Arbitration Courts.- (1) The Government shall constitute such number of Co-operative Arbitration Courts, as are necessary to exercise the powers and discharge the functions conferred on it under this Act. (2) The qualifications, term salary and allowances and other conditions of service of the person to be appointed as the Co-operative Arbitration Court shall be such, as may be decided by the Government from time to time. (3) The Government shall make rules for regulating the procedure and disposal of business of the Co-operative Arbitration Court. (4) The Registrar or the Government shall lend the services of such number of officers and employees as may be necessary, to assist the Co-operative Arbitration Court. (5) The officers and employees referred to in sub-section (4) shall continue to be Government servants for all purposes and their terms and conditions of service shall continue to be the same as applicable to them under the Government." Sub-section (1) of section 70 of the Act stipulates that the Government shall constitute such number of Co-operative Arbitration Courts, as are necessary to exercise the powers and discharge the functions conferred on it. Sub-section (2) stipulates that the qualifications, term salary and allowances and other conditions of service of the person to be appointed as the Co-operative Arbitration Court shall be such, as may be decided by the Government from time to time. Sub-section (3) stipulates that the Government shall make rules for regulating the procedure and disposal of business of the Co-operative Arbitration Court. Sub-section (4) stipulates that the Registrar or the Government shall lend the services of such number of officers and employees as may be necessary, to assist the Co-operative Arbitration Court. Section 70B of the Act stipulates that on the constitution of a Co- operative Arbitration Court, every dispute pending before the Registrar or any person invested with the power to dispose of the dispute by the Government or the arbitrator appointed by the Registrar, in respect of non-monetary disputes, relating to the local area of jurisdiction of the Arbitration Court, shall be transferred to such Arbitration Court and the Court shall dispose of the same as if it were a dispute referred to it under section 69. It is evident from provisions contained in sections 70A and 70B of the Act that the Co-operative Arbitration Court is not a forum subordinate to the Registrar. The contention raised by the petitioner that in view of Ext.P10 circular issued by the Registrar of Co- operative Societies, the Co-operative Arbitration Court must be deemed to be a forum under the Registrar, does not merit acceptance. All that Ext.P10 circular stipulates is that non-monetary disputes have to be raised before the Co-operative Arbitration Court as per section 70A of the Act and rule 67B of the Kerala Co-operative Societies Rules, 1969 as amended. The jurisdiction of the Co-operative Arbitration Court is conferred by section 69(2) of the Act and not by Ext.P10 circular. Ext.P10 circular can only be said to be an information to the public that non-monetary disputes have to be raised before the Co- operative Arbitration Court. Likewise, I also find no merit in the contention that as section 70 of the Act prescribes a time limit of one year for passing the award, the Co-operative Arbitration Court ceases to be a forum, which is independent. If that be so, the Rent Control Court exercising jurisdiction under the Kerala Buildings (Lease and Rent Control) Act, 1965 should be held to be a forum which is not an independent forum because it is stipulated therein that the rent control petition shall be disposed of within four months. Interpreting the provisions contained in the Rent Control Act, this Court has held that the stipulation regarding the time limit for disposal of rent control petitions is not mandatory. The same principle, in my opinion, applies in the case of the section 70 of the Act also. Therefore, for that reason also, I am of the opinion that no interference is called for with the impugned orders. I accordingly hold that the the preliminary objection raised by the petitioner was rightly repelled by the Co-operative Arbitration Court and the Kerala Co-operative Tribunal. Consequently, the writ petition fails and is dismissed in limine. Sd/- P.N.RAVINDRAN JUDGE /TRUE COPY/ P.A. To JUDGE vpv |
|
|
W.P. (C) No. 15440 of 2012 - Cheranallur Service Co-Operative Bank Ltd. Vs. State of Kerala, (2012) 266 KLR 594posted Aug 23, 2012, 11:02 PM by Law Kerala [ updated Aug 23, 2012, 11:02 PM ] |
Kerala History, Kerala Geography, Kerala Climate, Kerala Flora and fauna, Kerala Government and administration, Kerala Economy, Kerala Agriculture, Kerala Fisheries, Kerala Transport, Kerala Roads, Kerala Railways, Kerala Airports, Kerala Inland water transport, Kerala Religion, Kerala Gender, Kerala Human Development Index, Kerala Education, Kerala Culture, Kerala Dance, Kerala Music, Kerala Cinema, Kerala Literature, Kerala Cuisine, Kerala Elephants, Kerala Media, Kerala Sports, Kerala Tourism, Kerala Major festivals and religious pilgrimage.
Follow Us : 
Sign in|Report Abuse|Print Page|Powered By Google Sites