IN THE HIGH COURT OF KERALA AT ERNAKULAM
The Hon'ble MR. Justice V. Chitambaresh, J. W.P. (C) No. 30149 of 2011 Dated this the 25th day of January, 2012 Head Note:- Kerala Co-operative Societies Act, 1969 – Sections 2(i), 69 and 80 – Kerala Co-operative Societies Rules, 1969 - Rule 176 – the Joint Registrar of Co-operative Societies has no jurisdiction to direct reinstatement with back wages of an employee dismissed from service by the Co-operative Society. Chronological List of Cases Cited:-
For Petitioner:-
For Respondent:-
J U D G M E N T 1. Has the Joint Registrar of Co - operative Societies the jurisdiction to direct reinstatement with back wages of an employee dismissed from service by the Co - operative Society? This is the interesting question that arises for consideration in this writ petition. 2. An educational co - operative society registered under the Kerala Co - operative Societies Act, 1969 (hereinafter referred to as 'the Act' only) and its President are the petitioners. Respondents 2 to 4 were the teachers employed in the Co - operative Arts and Science College run by the society. Respondents 2 to 4 were placed under suspension by Ext. P1 proceedings of the Administrator of the society for alleged misdemeanor on duty. The allegation was that respondents 2 to 4 trespassed into the office of the society and obstructed the then Administrator in office and the Returning Officer. They also allegedly damaged the computers and the telephone kept in the office causing embarrassment to the students who had come to the college for admission. The Managing Committee of the society later by resolution dated 27.09.2009 constituted a sub-committee to go into the charges. The disciplinary sub-committee was so constituted under Rule 198 (2A) of the Kerala Co - operative Societies Rules, 1969 (hereinafter referred to as 'the Rules' for short). 3. The disciplinary sub-committee issued Ext. P2 series notices calling upon respondents 2 to 4 to submit explanation to the memo of charges. The disciplinary sub-committee dissatisfied with the explanation decided to impose the punishment of removal from service by Ext. P3 proceedings. Respondents 2 to 4 thereupon preferred Ext. P7 series petitions before the first respondent Joint Registrar seeking to invoke Rule 176 of the Rules. The prayers in Ext. P7 series petitions are the following: i) To rescind the resolution of the society constituting the disciplinary sub-committee, ii) To set aside the decision of the sub-committee imposing the punishment of removal from service; and iii) To direct reinstatement in service with back wages. The Joint Registrar issued Exts. P4 and P6 notices of hearing to the society which have been impugned in this writ petition under Article 226 of the Constitution of India. 4. The Joint Registrar has alone filed a counter - affidavit inter alia contending as follows: "A perusal of the enquiry proceedings would reveal that he has not appreciated the evidence in the proper perspective and his finding are perverse, as not supported by any valid reasons ...... It is seen that the sub-committee proceeded to impose the punishment of dismissal without appreciating any of the objections raised by them as to the validity of the proceedings, evidence adduced in the case and the findings of the enquiry officer. Both the enquiry officer and the sub-committee adopted a tendentious approach to the whole issue." Respondents 2 to 4 contended that the writ petition is pre - mature and that the entire issues are at large in the proceedings before the Joint Registrar under Rule 176 of the Rules. Respondents 2 to 4 also contended that a writ petition merely challenging the notices of hearing cannot be countenanced in law. 5. I have heard Mr. P. C. Sasidharan, Advocate on behalf of the petitioners and Mr. George Poonthottam, Advocate on behalf of respondents 2 to 4 as well as the Government Pleader on behalf of the first respondent Joint Registrar. 6. The contentions raised by the petitioners are three fold and they are the following: i) There is a clear ouster of jurisdiction for the Joint Registrar to entertain Ext. P7 series petitions filed invoking Rule 176 of the Rules in view of the statutory exclusion under Section 69 of the Act. ii) Ext. P3 series decision of the disciplinary sub-committee is not at any rate a resolution of the society liable to be rescinded calling in aid Rule 176 of the Rules. iii) The remedy, if any, of respondents 2 to 4 is either to prefer an appeal to the Managing Committee of the society under Rule 198(4) of the Rules or to raise a dispute before the Co - operative Arbitration Court constituted under Section 70A of the Act. The question as to whether Ext. P3 series decision of the disciplinary sub-committee is a resolution of the society can of course be agitated before the Joint Registrar. Similarly the question as to whether respondents 2 to 4 have an effective alternate statutory remedy can also be raised before the Joint Registrar. But the fundamental question is as to whether the Joint Registrar has the jurisdiction at all to entertain Ext. P7 series petitions filed invoking Rule 176 of the Rules? 7. Section 2(i) of the Act defines dispute as follows: "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. S.69 of the Act provides for resolution of such dispute by the Co - operative Arbitration Court whether it be a dispute between a member and the society or an employee and the society. Section 69(1)(b) of the Act applies if it is dispute between a member and the society and Section 69(2)(d) applies if it is a dispute arising in connection with employment. Respondents 2 to 4 have a contention that they are only employees of the college even though members of the society. This makes the position worse for the petitioners since the dispute would then become one between a member and the society. 8. There is also a faint plea by respondents 2 to 4 that a Co - operative Educational Society does not find a place in Appendix III framed under Rule 182 of the Rules. The contention seems to be that the dispute would fall under Section 69(2)(d) of the Act only if the society is so included in Appendix III. It may at once be noticed that Section 80(1) of the Act speaks of classification of the societies according to their types and financial position. Rule 15 of the Rules deals with classification of the society into various types and serial No. 8 therein is 'Educational Co - operative Societies'. Even otherwise such society would fall under 'all other societies coming under the administrative control of the Co - operative Department' included in Appendix III framed under Rule 182 of the Rules. Therefore a dispute can certainly be raised in connection with the employment of respondents 2 to 4 in the society. 9. The next question is as to whether the Joint Registrar has jurisdiction to entertain Ext. P7 series petitions seeking to invoke Rule 176 of the Rules. The reliefs sought in Ext. P7 series petitions fall within the ambit of any dispute arising in connection with employment under Section 69(2)(d) of the Act. The last limb of Section 69(1) further mandates that 'no other Court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute'. Thus there is a statutory exclusion for the Joint Registrar to entertain Ext. P7 series petitions seeking to invoke Rule 176 of the Rules. The following excerpt from Prakasini Vs. Joint Registrar, 2006 (1) KLT 199 would be apposite to the context. "The last limb of Section 69(1) provides that such disputes shall be decided by the arbitration Court or the Registrar, as the case may be and no other Court or authority shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute. In my considered view, this is a clear statutory exclusion of the authority under Rule 176 of the KCS Rules, which otherwise was being exercised in relation to such disputes." This view has been approved by a Division Bench of this Court in Ravindran Vs. State of Kerala, 2007 (3) KLT 558 also. 10. The moot question is as to whether the writ petition is maintainable challenging Exts. P4 and P6 notices of hearing issued by the Joint Registrar on Ext. P7 series petitions. I am conscious that the writ petitioners should invariably be directed to respond to the notices and take all stands highlighted in the writ petition. But should the petitioners be put to that ordeal when the notices of hearing are on the face of it totally non est in law for want of jurisdiction in the Joint Registrar? It is settled by a long line of decisions that a writ can be issued if the notice is issued without authority of law and without jurisdiction. The parties need not be relegated to the procedure contemplated under the special enactment and the proceedings can be nipped in the bud if the notices are bad for absolute want of jurisdiction. The following are the few: i) Calcutta Discount Company Ltd. Vs. Income Tax Officer, AIR 1961 SC 372 ii) State of Uttar Pradesh Vs. Brahm Datt Sharma, (1987) 2 SCC 179 iii) Special Director and Another Vs. Mohammed Ghulam Gouse and Another, (2004) 3 SCC 440 iv) Union of India and Another Vs. Kunisetty Satyanarayana, (2006) 12 SCC 28 and v) Poulose Vs. R.T.O., Palakkad, 1992 (1) KLT 441 11. There is yet another reason as to why I should interfere with the proceedings before the Joint Registrar in view of the specific stand taken by him in his counter - affidavit. The counter - affidavit of the Joint Registrar as quoted above finds fault with the enquiry officer in the appreciation of evidence and also with the disciplinary sub-committee in imposing punishment. It may at once be noticed that the Joint Registrar is attempted to be clothed with jurisdiction by respondents 2 to 4 and he is yet to deal with Ext. P7 series petitions on merits. It was therefore preposterous on his part in pronouncing on the merits of the claim of respondents 2 to 4 in the counter - affidavit. Therefore an adjudication of the issues by the Joint Registrar in the present fact situation would be an empty formality. Exts. P4 and P7 notices have therefore been issued with a pre - meditation and the writ petition under such circumstances would be maintainable. I am fortified in this view by the following decisions: i) K.I. Shephard and Others Vs. Union of India, (1987) 4 SCC 431 ii) V.C. Benaras Hindu University and Others Vs. Shrikant, 2006 (6) SCALE 66 and iii) Siemens Ltd. Vs. State of Maharashtra, 2007 (1) KLT 88 (SC). 12. I have no hesitation to hold that Exts. P4 and P6 notices issued on Ext. P7 series petitions filed seeking to invoke Rule 176 of the Rules are non est in law. There is a statutory exclusion for the Joint Registrar to deal with Ext. P7 series petitions relating to the employment of respondents 2 to 4. I therefore quash Exts. P4 and P6 notices and allow the writ petition however without costs. This is of course without prejudice to the right of respondents 2 to 4 to invoke other remedy known to law. |
