Partly allowed

Secretary,Vilangad Scheduled v. Sri.Mukkat Kunhan

Kerala HC20 Jun 2013WP(C)/2224/2004

Case brief

AI extract

What is this about?

Two writ petitions were disposed of. The Court set aside the appellate authority's order for lacking jurisdiction to consider unchallenged counter-claims but upheld the Arbitrator's award due to time elapsed. The employee's writ petition seeking reinstatement and salary arrears via counter-claim was dismissed.

What did the court decide?

The appellate authority's order was set aside but the Arbitrator's award was upheld. The writ petition filed by the employee was dismissed.

Secretary,Vilangad Scheduled Vs Sri.Mukkat Kunhan — Cooperative Societies | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THURSDAY, THE 20TH DAY OF JUNE 2013/30TH JYAISHTA 1935

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WP(C).No. 2224 of 2004 (M)

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PETITIONER:

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THE SECRETARY, VILANGAD SCHEDULED TRIBAL SERVICE CO-OPERATIVE SOCIETY LTD. NO.D 2309, POST VELLIYODE, BADAGARA TALUK, KOZHIKODE DISTRICT.

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BY ADV. SRI.P.V.KUNHIKRISHNAN

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RESPONDENTS:

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1. SRI.MUKKAT KUNHAN, S/O.CHANDU, PANNIYERI HOUSE, P.O.VELLIYODE, VIA KALLACHI, BADAGARA TALUK.

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2. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE, KALLAYI ROAD, KOZHIKODE.

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3. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), BADAGARA.

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4. KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM.

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R1 BY ADV. SRI.MOHANAN V.T.K. R2 BY ADV. SRI.C.V.BIMAL ROY R3 & 4 BY SENIOR GOVERNMENT PLEADER, P.A.RAZIYA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-06-2013 ALONG WITH WPC. 8315/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 2224 of 2004 (M)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1	: A COPY OF REGISTRAR VADAKARA I	THE AWARD PASSED BY THE ASSISTANT OF CO-OPERATIVE SOCIETIES(GENERAL), N ARC NO.980/98-99 DATED 30.12.2000.
EXT.P2	: A COPY OF FILE OF TH THIRUVANAN	THE JUDGMENT IN A.P.NO.22/2001 ON THE E KERALA CO-OPERATIVE TRIBUNAL, THAPURAM DATED 22.11.2003.
EXT.P3	: A COPY OF PRESIDENT APPOINTING	THE APPOINTMENT ORDER ISSUED BY THE OF THE SOCIETY DATED 08.12.1990 THE FIRST RESPONDENT AS SALESMAN.
EXT.P4	: A COPY OF 18.02.1993	THE STOCK VERIFICATION REPORT DATED OF THE MFP DEPOT.
EXT.P5	: A COPY OF CONSUMER S	THE STOCK VERIFICATION REPORT OF THE TORE DATED 18.02.1993.
EXT.P6	: A COPY OF FIRST RESP 18.02.1993	THE REPRESENTATION SUBMITTED BY THE ONDENT TO THE SOCIETY DATED .
EXT.P7	: A COPY OF FIRST RESP 05.03.1993	THE REPRESENTATION SUBMITTED BY THE ONDENT TO THE SOCIETY DATED .
EXT.P8	: A COPY OF THE SOCIET	THE ENQUIRY REPORT OF THE PRESIDENT OF Y DATED 20.06.1993.
EXT.P9(A)	: A COPY OF THE FIRST 15.05.1993	THE RECEIPT ISSUED BY THE SOCIETY TO RESPONDENT FOR RS.800/- DATED .
EXT.P9(B)	: A COPY OF THE FIRST 23.09.1994	THE RECEIPT ISSUED BY THE SOCIETY TO RESPONDENT FOR RS.200/- DATED .
EXT.P9(C)	: A COPY OF THE FIRST 29.06.1995	THE RECEIPT ISSUED BY THE SOCIETY TO RESPONDENT FOR RS.300/- DATED .

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WP(C).No. 2224 of 2004 (M)

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EXT.P9(D) : A COPY OF THE RECEIPT ISSUED BY THE SOCIETY TO THE FIRST RESPONDENT FOR RS.500/- DATED

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28.06.1996.

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EXT.P9(E) : A COPY OF THE RECEIPT ISSUED BY THE SOCIETY TO THE FIRST RESPONDENT FOR RS.2,000/- DATED 26.04.1997.

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EXT.P9(F) : A COPY OF THE RECEIPT ISSUED BY THE SOCIETY TO THE FIRST RESPONDENT FOR RS.1,500/- DATED 08.10.1997.

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EXT.P10 : A COPY OF THE ARBITRATION CASE FILED BY THE PETITIONER BEFORE THE THIRD RESPONDENT DATED NIL.

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EXT.P11 : A COPY OF THE WRITTEN STATEMENT FILED BY THE FIRST RESPONDENT BEFORE THE THIRD RESPONDENT DATED 30.06.1999.

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EXT.P12 : A COPY OF THE COUNTER CLAIM FILED BY THE FIRST RESPONDENT BEFORE THE THIRD RESPONDENT DATED 30.06.1999.

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/TRUE COPY/

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P.A.TO JUDGE.

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K.VINOD CHANDRAN, J

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W.P.(C) No.2224 of 2004 & 8315 of 2005

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Dated this the 20^th day of June, 2013

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JUDGMENT

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The petitioner in W.P.(c) No.2224 of 2004 is a

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Co-operative Society and the first respondent therein; a temporary sales man, who was terminated from the service and proceedings taken against, for recovery, is the petitioner in the other writ petition. The genesis of both the writ petitions is an incident in which, defalcations were detected in the stock. The petitioner was a temporary sales man in a Consumer Store and Minor Forest Produce Collection Depot(MFPC Depot) run by the Co-operative Society. On an inspection in the respective premises, shortage of stock valued at Rs.6,373.15/- and Rs.3,184.20/- was detected. The employee immediately filed Ext.P3 admitting to the shortage and when recovery steps were initiated, filed Ext.P6 seeking instalments.

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W.P.(C) No.2224 of 2004 & 8315 of 2005 : 2 :

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Again the employee was before the Co-operative Society with Ext.P7 seeking further extension of time to make instalments. The employee also had made some deposits, which is evidenced by Ext.P9 series of receipts issued by the Co-operative Society.

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However, after making good certain amounts, the employee failed to make further payments, upon which, the Co-operative Society initiated arbitration proceedings as provided under the Co-operative Societies Act, which concluded in Ext.P1. As per Ext.P1, the arbitrator found that the liability of the employee is limited to an amount of Rs.2,713.35/-, which stands discharged by 15.05.1993. It was also directed that the excess amount of Rs.2,586.65/received by the Society shall be refunded to the employee with simple interest at the rate of 18% p.a. The society was before the appellate authority as is evident from Ext.P2. In the appeal of the Society, the appellate authority found that the entire exercise of recovery undertaken by the Society

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W.P.(C) No.2224 of 2004 & 8315 of 2005 : 3 :

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against the employee was bad. It is pertinent to note that the employee had not filed any appeal against Ext.P1 order nor had he filed cross-appeal before the appellate authority.

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On a reading of Ext.P2 order, it is seen that the appellate authority has relied on a counter-claim made by the appellant, which admittedly is a counter-claim(Ext.P12) made before the original authority. If the employee had a contention that the original authority ought to have considered his counter claim, then, the employee ought to have filed an appeal from Ext.P1 order. Having not done so, the appellate authority should have confined itself to the appeal filed against Ext.P1 order by the Society and the finding that the entire proceedings taken were bad, was totally without jurisdiction; in the absence of an appeal by the employee.

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In the circumstances, in W.P.(c) No.2224/2004, Ext.P2 is to be set aside. Normally, this Court would have remanded the matter for fresh consideration of the

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W.P.(C) No.2224 of 2004 & 8315 of 2005 : 4 :

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appellate authority. However, due to the passage of time, this Court looked into the findings entered into in Ext.P1 order itself. The award passed by the Arbitrator is an elaborate one after looking into the entire facts and records placed before this Court. The findings entered on facts is perfectly in order and it is not liable to be interfered with. Hence, no purpose will be served in sending back the matter for consideration to the first appellate authority. In such circumstances, Ext.P1 award is upheld.

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The other writ petition filed by the employee is urging this Court under Article 226 of the Constitution of India to enforce the further claim made by the employee in the counter claim as to his reinstatement and for grant of arrears of salary. The first appellate authority as has been found by this Court, had absolutely no jurisdiction to set aside the entire order passed by the Arbitrator, in favour of the employee or consider the counter-claim made before the original authority, without an appeal of the employee.

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W.P.(C) No.2224 of 2004 & 8315 of 2005 : 5 :

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In such circumstances, it may not be proper for this Court to invoke the extraordinary power under Article 226 of the Constitution of India to direct consideration of a counter claim which stood concluded by Ext.P1 award; for the sole reason of the award being not challenged by the person, who filed the counter-claim. In such circumstances, the writ petition filed by the employee is dismissed.

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W.P.(c) No.2224 of 2004 is disposed of in the above lines and W.P.(c) No.8315 of 2005 is dismissed. Both without costs.

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Sd/- K.VINOD CHANDRAN, JUDGE.

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Secretary,Vilangad Scheduled v. Sri.Mukkat Kunhan

Case brief

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Secretary,Vilangad Scheduled v. Sri.Mukkat Kunhan

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