Partly allowed

E.K.Augustine v. State of Kerala

Kerala HC8 Sept 2016WP(C)/5670/2005

Case brief

AI extract

What is this about?

A co-operative bank secretary's dismissal dispute belonged before the Arbitration Court, not the Joint Registrar. The court set aside the Registrar's and Government's orders, allowed the bank's petition and dismissed the employee's petition, permitting recourse to the Arbitration Court within one month.

What did the court decide?

Exhibits P10 and P23 set aside; employee permitted to seek remedies before the Co-operative Arbitration Court within one month of receipt of the judgment.

E.K.Augustine Vs State of Kerala — Cooperative Societies | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 8TH DAY OF SEPTEMBER 2016/17TH BHADRA, 1938

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WP(C).No. 5670 of 2005 (Y)

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PETITIONER(S):

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E.K.AUGUSTINE, ERURICKAL HOUSE, THUDANGANAD, THODUPUZHA.

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BY ADV. SRI.P.RAMAKRISHNAN

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RESPONDENT(S):

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1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, CO-OPERATION(C) DEPARTMENT, TRIVANDRUM.

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2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), IDUKKI.

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3. THE BOARD OF DIRECTORS OF THE THUDANGANAD SERVICE CO-OPERATIVE BANK LTD., THUDANANGAD, THODUPUZHA, REP. BY ITS PRESIDENT.

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4. THE THUDANGANAD SERVICE CO-OPERATIVE BANK LTD., NO.2410, THUDANGANAD, THODUPUZHA, REP. BY ITS SECRETARY.

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BY GOVERNMENT PLEADER SRI.ABHIJITH LESLIE

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-07-2016 ALONG WITH WPC 2165/2005, THE COURT ON 08-09-2016 DELIVERED THE FOLLOWING:

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WP(C).No. 5670 of 2005 (Y)

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APPENDIX

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PETITIONER'S EXHIBITS :

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P1:	COPY OF THE PROCEEDINGS DT 8/2/1999 OF THE BANK.
P2:	COPY OF THE EXPLANATION FILED BY THE PETITIONER DT 86/1999.
P3:	COPY OF THE NOTICE DT 6/11/2000 OF THE BANK.
P4:	COPY OF THE PETITION FILED UNDER RULE 176 BEFORE THE JOINT REGISTRAR DT 23/4/2001.
P5:	COPY OF THE PROCEEDINGS NO.CRP-140/01 DT 14/7/2004.
P6:	COPY OF THE REQUEST BY THE PETITIONER DT 28/7/2004.
P7:	COPY OF THE LETTER NO. 48/04-05 DT 21/7/2004.
P8:	COPY OF THE JUDGMENT IN WA 1593 OF 2004 DT 20/8/2004.
P9:	COY OF THE APPEAL NO. 10105/C1/2004 DT 2/9/2004.
P10:	COPY OF GO(RT) NO. 656/2004/CO-OP. DT 27/11/2004.

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RESPONDENT'S EXHIBITS : NIL.

//TRUE COPY//

P.A. TO JUDGE

P.V.ASHA, J.

W.P(C) No.2165 of 2005 and 5670 of 2005

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Dated this the 8^th day of September, 2016

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JUDGMENT

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Both these writ petitions relate to the dismissal of the Secretary of the Thudanganad Service Co-operative Bank. While the Bank is challenging the order of Government which upheld the action of Joint Registrar of Co-operative Societies in rescinding the resolution to dismiss the Secretary, the employee is seeking implementation of the order challenged by the Bank. The employee challenges the order of Joint Registrar and the Bank to the extent it relates to regularisation of the period of suspension. Since common issue arises in these cases, these writ petitions are disposed of by a common judgment. The parties and documents referred to in this judgment are as described in W.P.(C) No. 2165 of 2005, unless specifically provided otherwise.

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The petitioner in W.P.(C) No.2165 of 2005 is a service cooperative bank. The Bank filed the writ petition challenging the orders of the Joint Registrar of Co-operative Societies by which the resolution passed by the Co-operative Society dismissing the 3^rd respondent and the decision of the managing committee rejecting the appeal filed by the bank were rescinded under rule 176 of the Kerala Co-operative Rules, 1969. The appeal filed by the bank was also dismissed as per

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W.P.(C) Nos.2165 & 5670 of 2005

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Ext.P23 order by the Government. The facts leading to the case are as follows:

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The 3^rd respondent was working as Secretary of the petitioner Bank. While so he was placed under suspension as per Ext.P1 order dated 8.2.1999. Thereafter memo of charges were issued to him on 29.2.1999 as per Ext.P2, which contained ten charges along with statement of allegations. The charges included misappropriation, unauthorised absence etc. Thereafter an enquiry was conducted by the subcommittee and the subcommittee took a decision on 20.11.2000 to dismiss the 3^rd respondent. The 3^rd respondent filed an appeal before the managing committee and thereupon the managing committee as per its decision dated 5.3.2001 affirmed the dismissal. Aggrieved by the order of dismissal, the petitioner approached the Joint Registrar of Co-operative Societies filing Ext.P7 petition requesting to invoke the powers of the Joint Registrar under rule 176 and to rescind resolution.

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Ext.P7 petition was submitted on 23.4.2001. The Joint Registrar initiated action on it in the year 2001 itself as seen from Ext.P8. Thereafter after hearing the 3^rd respondent as well as the bank, the Joint Registrar passed Ext.P10 order on 14.7.2004 rescinding the proceedings of the disciplinary committee dismissing the 3^rd respondent as per its order dated 20.11.2000 and the decision

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W.P.(C) Nos.2165 & 5670 of 2005

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of the managing committee taken on 5.3.2001 rejecting the appeal against dismissal. The Joint Registrar found that the 3^rd respondent was dismissed from service without complying with rule 198 (1) and 198(2) of the Co-operative Societies Rules. It was further found that the punishment awarded to him was not commensurate with the charges alleged. The Joint Registrar further directed that the 3^rd respondent shall be reinstated and the period during which he was kept out of service shall be regularised as leave without allowance.

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The petitioner filed an appeal before the Government as per Ext.P11 along with a stay petition. The Government rejected the stay petition as per Ext.P12 order dated 27.7.2004. Simultaneously the 3^rd respondent also approached the Government as against the direction of the Joint Registrar to the extent it directed regularisation of the period of ouster as leave without allowance that is without granting him the benefit of full pay and allowance during the period of ouster.

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As against the rejection of stay petition, the petitioner approached this Court filing W.P.(C) No.22843 of 2004 and this Court by Ext.P16 judgment dated 3.8.2004 directed the Government to pass orders on the stay petition expeditiously. Thereafter after hearing both parties the Government rejected the stay petition as per Ext.P20 order dated 11.8.2004. The petitioner bank approached this Court by W.P. (C) No.24340 of 2004 as against the order passed by the Government

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rejecting the writ petition. Since that writ petition was dismissed as per judgment dated 17.3.2004 petitioner filed W.A.No.1593 of 2004, which was disposed of by Ext.P21 judgment dated 20.8.2004 with the following directions:

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i. The judgment dated 17.8.2004 in W.P.(C) No.24340 of 2004 is set aside.

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ii. Ext.P19 order dated 11.8.2004 passed by the first respondent is quashed.

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iii. The operation and implementation of Exts.P10 and P14 orders of the second respondent will stand stayed till the disposal of Ext.P11 appeal by the first respondent.

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iv. Since the appellant has been out of service from 9.2.1999 and since he is due to retire from service on 31.8.2004, the first respondent is directed to consider and dispose of Ext.P11 appeal in accordance with law as expeditiously as possible and at any rate within a period of two months from the date of receipt of a copy of this judgment.

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v. If Ext.P11 appeal is dismissed and Ext.P10 order is upheld by the Government, the 3^rd respondent will be deemed to have continued in service from the date of his dismissal till the date of his retirement and he will be entitled to all consequential benefits.

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vi. If Ext.P11 appeal is dismissed, the first respondent, the first respondent shall also pass appropriate orders in accordance with law regularising the period spent by the third respondent under suspension.

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viii. The above directions are without prejudice to the right of the parties to challenge the order passed by the first respondent in Ext.P11 appeal, if so advised.

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W.P.(C) Nos.2165 & 5670 of 2005

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Thereafter the Government rejected the appeal as per Ext.P23 order dated 27.11.2004. Since the 3^rd respondent had by that time crossed the age of superannuation on 31.8.2004, it was ordered, in the light of the direction in the judgment in the writ appeal that he would be deemed to have been in service from the date of dismissal till the date of retirement and he would be entitled for all consequential benefits. The period during which the 3^rd respondent was kept under suspension till the impugned order was directed to be treated as leave on loss of pay and the period from 15.7.2004 till the date of superannuation would be treated as duty for all purposes including pensionary benefits. Writ petitions were filed at this stage. W.P(C) No.5670 of 2005 is filed by the 3^rd respondent.

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Ext.P10 order of the Joint Registrar of Co-operative Societities issued on 14.07.2004, interfering with the order of dismissal of the 3^rd respondent from the Co-operative Bank, invoking Rule 176 of the Kerala Co-operative Societies Rules, 1969 (hereinafter referred to as `the Rules’ for short), and Ext.P23 order of Government

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uphoding the same, are under challenge by the bank. The contentions urged by the Bank in its writ petition are with respect to reappreciation of evidence by the Joint Registrar as well as Government,

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W.P.(C) Nos.2165 & 5670 of 2005 :6:

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observance of principles of natural justice, power to go into proportionality of punishment, etc. The main contention raised at the time of hearing was as to the jurisdiction of the Joint registrar under Rule 176, at the relevant time. Referring to Section 70B of the Act, it is argued that the Joint Registrar was divested of his jurisdiction to deal with disputes relating to dismissal, on constitution of the Arbitration Courts under Section 70A of the Act to determine the disputes under Section 69 of the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as `the Act' for short). Section 69(2)(d) of the Act provides that, any dispute in connection with employment of servants of Co-operative Societies have to be decided by the Arbitration Courts only. The Joint Registrar ought to have transferred the proceedings pending before him to the Arbitration Court as provided under Section 70B of the Act.

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The petitioner relied on the judgment of this Court reported in Ravindran v. State of Kerala [(2007) 3 KLT 558] and submitted that there is an implied ouster of jurisdiction in this matter for the Joint Registrar to take action under Rule 176. Petitioner as well as the 3^rd respondent approached this court several times initially challenging the order of Joint Registrar passed under Rule 176 for implementing the order; thereafter the petitioner approached the Government challenging that order. No contention as to want of

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W.P.(C) Nos.2165 & 5670 of 2005

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jurisdiction in view of Section 69 or 70 B was raised in the appeal. They approached this court, when stay petition was rejected; filed Writ Appeal when there was a direction to reconsider and thereafter challenged the order of the Government, rejecting the petition for stay. The 1^st respondent also approached this court for implementation of the order of Joint Registrar and thereafter that of Government. In none of these proceedings they raised any contention as to want of jurisdiction. Even in this writ petition the petitioner did not raise this objection. Learned Counsel for the petitioner submits that question of jurisdiction can be raised at any time and that acquiescence will not confer any jurisdiction on any authority.

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On the other hand, according to the learned Counsel for the 3^rd respondent, the petitioner cannot be heard to contend that the Joint Registrar did not have jurisdiction to consider his petition. It is pointed out that the 3^rd respondent preferred his complaint on 23.04.2001 requesting for action under Rule 176, at a time when the Arbitration Courts were not constituted. In none of the proceedings, including in the writ petitions and writ appeals filed by the Bank, challenging the order of Joint Registrar, the petitioner raised any objection as to the want of jurisdiction of Joint Registrar. According to the 3^rd respondent, the Joint registrar was competent to consider his complaint and the order passed thereon cannot be varied for want of

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jurisdiction. According to him, his removal was ordered without any basis. There was no proper inquiry consistent with the principles of natural justice and there was no evidence against him. The proceedings were in total violation of Rule 198 of the Rules. The authority of the Joint Registrar under Rule 176 to interfere with the resolutions taken in total violation of rules, was not taken away by way of amendment to the Act; the decisions relied on by the petitioner bank do not relate to disciplinary action. Contention of Sri.Ramakrishnan, the learned Counsel for the 3^rd respondent is that at the time when the 1^st respondent approached the Joint Registrar, the Arbitration Court was not constituted and therefore Joint Registrar was competent to pass orders on such petitions under Rule 176 of the Rules, at any rate in the absence of any objection to his jurisdiction; the petitioner ought to have raised the objection at the first available opportunity and at any rate, when the petitioner did not choose to raise any objection when it approached this court several times and even in this writ petition, cannot be heard to raise such an objection at this stage. It is argued that the 3^rd respondent was kept out of service illegally since the year 1999 when he had completed 29 years of service; a further ordeal of trial will cause serious prejudice to him over and above the prejudices already undergone by him. Counsel on both sides relied on several judgment in support of their contentions.

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W.P.(C) Nos.2165 & 5670 of 2005

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The petitioner society has got another contention that the Joint Registrar did not have any jurisdiction under Rule 176 to rescind the resolution of the disciplinary committee. In this case it was the decision of the disciplinary committee to dismiss the 3^rd respondent and not that of the managing committee of the society. Learned Counsel relied on the judgement dated 17.07.2007 in W.A.No.1932 of 2004 -Malampuzha service co-operative Bank V State of Kerala, wherein, this court, held that, the power of the Registrar to rescind a resolution invoking Rule 176, can be invoked only when the resolution is of the managing committee and not of the sub committee. It was held that the committee referred to in Rule 176 can only be the committee defined under section 2(e) of the Act, which means managing committee of the society or a governing body of the society to which the management of the society is entrusted. Therefore it was held that under rule 176 Joint Registrar did not have any authority to interfere with the recommendation made by the sub committee of the society. In that case also, the dismissal of the employee as per the resolution passed by the sub committee was challenged before the managing committee and the managing committee upheld the recommendations of the sub committee and both the resolutions were challenged before the Joint Registrar. Joint registrar rescinded both the resolutions and directed reinstatement. This court found that the

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action of Joint Registrar against the resolution of the sub committee was bad. However Joint Registrar was found competent to rescind the resolution of the managing committee which upheld the resolution of subcommittee to dismiss the employee. It was also held therein that, Joint Registrar did not have any jurisdiction to direct reinstatement,invoking this power, in the light of the judgment of this court in President, Puthupariyaram service co-operative Society V Rugmini Amma & others : 1996 (1) KLT 100.

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It is argued that the Joint Registrar rescinded the resolution of the disciplinary sub committee without any jurisdiction. The direction to reinstate 3^rd respondent also is without jurisdiction. It is also pertinent to note that the 3^rd respondent is also challenging the action of the Joint Registrar directing regularisation of the period under suspension/period of ouster as leave without allowance. The learned counsel for the 3^rd respondent also does not dispute the proposition that the Joint Registrar cannot under Rule 176 interfere with the resolution of the subcommittee and that he is not competent to issue any direction for reinstatement or back wages. However it is pointed out that, the resolution passed by the managing committee upholding the decision of the subcommittee was interfered with, and that part of the order cannot be said to be illegal.

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The issue as to the jurisdiction of Joint Registrar to

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entertain a petition under Rule 176 of the Rules in respect of the disciplinary action initiated against an employee was elaborately considered by this Court in the judgments in Jayarani T. v. Assistant Registrar of Co-operative Societies [2016 (2) KLJ 446] and Kerala State Co-op.Agrl. and R.D.B Ltd. v. Joint Registrar of Co-op. Societies [2016 (1) KLT 572] wherein it was held that when there is a specific forum for adjudicating service disputes, Joint Registrar cannot invoke its powers under Rule 176. I have also considered the very same issue in Kanjoor Co-operative Bank V Joint Registrar 2016(3) KLT 73 and held that there is a specific ouster of jurisdiction consequent to the establishment of arbitration courts. Now the question which is to be considered in these cases is whether the dispute which was pending before the Joint Registrar at a time when the Arbitration Courts were constitued and started functioning should not have been transferred under Section 70B and whether the acquiscence of the petitioner Bank by not raising this contention when they approached this court several times and filed several petitions and appeal before Government or even in this writ petition, will stand in their way of raising the question of jurisdiction at the time of hearing and thereby whether it can be said that the orders passed by the Joint registrar cannot be disturbed for want of juridiction.

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W.P.(C) Nos.2165 & 5670 of 2005

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Section 70B of the Act reads as follows:

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“ 70B: Provisions as to pending proceedings::

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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 Sec.69.”

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Section 70B came into force from 2.1.2003. A reading of the provision will indicate that all pending disputes were to be transferred

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to the Arbitration Court. It is made clear therein that, any person invested with the power to dispose of the dispute is divested of that power and those authorities were to transfer the same to the Arbitration Court.

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The dispute with respect to the dismissal of the 1^st respondent was pending before the Joint Registrar at the relevant time. As per Section 70B it was liable to be transferred. Joint Registrar ceased to have any jurisdiction to consider the issue relating to dismissal with effect from 1.2.2003.

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Now the only question which remains to be decided is whether the order passed by the Joint Registrar can be said to be valid, since the petitioner society did not raise the issue relating to jurisdiction at the relevant time because this court directed the Government to pass orders on the petition for stay or on the appeal.

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W.P.(C) Nos.2165 & 5670 of 2005

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It is an admitted fact that, the question as to jurisdiction was not raised in this court and this court had no occasion to consider that question. It is settled law that jurisdiction cannot be conferred by acquiescence. 16. The learned counsel for the petitioner relied on

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the judgement in P.S Raveendran V State of Kerala and others [2007(3)KHC 780:2007 (3)KLT558] wherein a division bench of this court held that, any dispute arising in connection with employment of officers and servants of different classes of societies specified in subsection 1 of section 80 including employment of officers and servants including their promotion, inter se seniority, etc. are to be decided by the arbitration court and on constitution of the Co-operative Arbitration Court every dispute pending before them in respect of nonmonetary disputes shall be transferred to such Arbitration Court. It was further held that, Joint Registrar cannot be conferred with jurisdiction just because there is a direction from this court. In that case the dispute was with respect to the seniority of employees in a co-operative society. Paragraph 3 of the judgment read as follows:

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3. We are of the view, after the coming into force of Act 1 of 2000 with effect from 02.01.2003, the dispute in connection with the employment of officers and servants of different classes of societies specified in sub-s.(1) of S.80 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

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W.P.(C) Nos.2165 & 5670 of 2005

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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. 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.

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On a reading of the above mentioned statutory provisions it is clear 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 is to be decided by the Arbitration Court. On the constitution of Cooperative Arbitration Court, every dispute pending before the Registrar or any person invested with the power to dispose of the same 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 S.69. Same is the view taken by the Division Bench of this Court in W.A. No 2116 of 2006. We therefore fully endorse the view taken by the learned Judge in Prakasini's case. Consequently Writ Appeal lacks merits and the same would stand dismissed.”

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Therefore it can be seen that a direction from this court cannot confer jurisdiction to any authority in case the said authority is divested of the jurisdiction by the statute or when jurisdiction is vested in another authority by the statute itself.

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Rule 176 of the Rules reads as follows:

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W.P.(C) Nos.2165 & 5670 of 2005

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“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.”

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Rule 176 empowers 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 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. Therefore, if the society has taken a resolution against the provisions of the Act, Rules or bye-laws or any direction or instructions, the Registrar is competent to rescind the resolution. This court has already held that power under Rule 176 cannot be invoked at any time irrespective of the availability of a separate statutory remedy against it. In this case, contention of the 3^rd respondent is that, punishment was imposed without conducting an enquiry, in violation of Rule 198. The joint registrar has in this case referred to the contention of the society as against interference and in the impugned order- Exhibit P10 it is stated that, the 3^rd respondent was dismissed from service without conducting any enquiry consistent with

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W.P.(C) Nos.2165 & 5670 of 2005

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the principles of natural justice and he was not allowed to defend himself affording an opportunity to adduce evidence. However the joint registrar further found that even if the charges were found proved, the dismissal was highly disproportionate to the gravity of charges. Thus it can be seen that the Joint Registrar has considered not only the violation of principles of natural justice, but also the evidence and held that the punishment was disproportionate, exceeding his power under Rule 176.

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The learned counsel for the petitioner relied on the judgement of the Apex court in Harsha Chiman Lal Modi vs DLF

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universal Ltd and another : ( 2005) 7 SCC 791. The issue considered therein was relating to the territorial jurisdiction in respect of a suit filed for specific performance of an agreement which was filed in Delhi civil court which did not have territorial jurisdiction; and the defendants had agreed to the jurisdiction in their written statement; they sought for amendment of the same after 8 years of its filing. Question considered was whether the Delhi civil court had juridiction to try and entertain the suit. In paragraph 30 of the judgment it was held that, so far as territorial and pecuniary jurisdiction are concerned objection has to be taken at the earliest and at any rate before the settlement of disputes. But in a case where the question is as to the jurisdiction with respect to the subject matter it is totally distinct and

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stands on a different footing. An order passed by the court having no jurisdiction is a nullity. Referring to Halsbury's Law of England 4^th Edition volume 10 paragraph 317 relating to consent, it was held that if by reason of any limitation imposed by a statute `the court is without jurisdiction to entertain any particular claim or matter, neither the acquiescence nor the express consent of parties can confer jurisdiction upon a court. If a condition which goes to the root of the jurisdiction is not performed or fulfilled, a statute limiting the jurisdiction of the court may contain provisions enabling the parties to extend the jurisdiction by consent. Referring to Bahrein Petroleum

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Company Ltd V P.J Pappu : AIR 1966 SC 634, it was held that a decree passed by a court having no jurisdiction is non-est and its invalidity can be raised whenever it is sought to be enforced as a foundation for a right even at the stage of execution or in collateral proceedings. Relying on the judgment in Kiran Singh vs Chaman Paswan :AIR 1954 SC 340 it was held that a defect of jurisdiction strikes at the very authority of the court to pass a decree and such a defect cannot be cured even by consent of parties. In that case it was held that Delhi High Court did not have jurisdiction as property was not within its territorial limits, since the suit was for specific performance. 19. The learned counsel also relied on the judgment of the Supreme Court in Chief Engineer Hydel Project and others

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W.P.(C) Nos.2165 & 5670 of 2005

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vs Rabindranath and others : (2008) 2 SCC 350. There the respondents who were skilled workers in the Hydel Project filed a civil suit for a declaration that their retrenchment was illegal and they were entitled to re-instatement. Suit was decreed, Appeal and second appeal were also dismissed. The appellant's contention before the apex court was that the remedy for the respondent was under the Industrial Disputes Act and that jurisdiction of civil court was impliedly excluded. The respondents objected to it on the ground that such a contention was not raised before the court below. Following the judgment in Chimanlal's case and a series of subsequent judgments,

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the apex court in para 28 of the judgment held as follows:

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“28. Once the original decree itself has been held to be without jurisdiction and hit by the doctrine of coram non judice, there would be no question of upholding the same merely on the ground that the objection to the jurisdiction was not taken at the initial, first appellate or the second appellate stage. It must, therefore, be held that the civil court in this case had no jurisdiction to deal with the suit and resultantly the judgments of the trial court, the first appellate court and the second appellate court are liable to be set aside for that reason alone and the appeal is liable to be allowed. In view of this verdict of ours, we have deliberately not chosen to go into the other contentions raised on merits. We, however, make it clear that we have not, in any manner, commented upon the rights of the respondentplaintiffs, if any, arising out of the labour jurisprudence.”

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Similarly a division bench of this court in Regional Director ESI Corporation vs MRF Ltd 2012(1) KLT 290 held that a decision by

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a body which does not have inherent jurisdiction can be challenged in

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W.P.(C) Nos.2165 & 5670 of 2005

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any proceedings be collateral or executing the said order and that consent cannot confer jurisdiction. Section 76 of the ESI Act was under consideration therein.

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The learned counsel for the 3^rd respondent Sri P. Ramakrishnan relied on the judgement in Prasun Roy Vs Calcutta Metropolitan Development Authority 1987 (4) SCC 217, wherein it was held that a party shall not be allowed to blow hot and cold simultaneously and long participation and acquiescence in the proceedings precludes such a party from contending that the proceedings are without jurisdiction. It was a case where an arbitration agreement provided for resolution of disputes by a sole arbitrator not connected with the particular work, to be appointed by the authority. In that case on application before the High Court, an advocate was appointed in 1983 as the sole or arbitrator. The parties participated in the proceedings and the arbitrator held 74 sittings. In the year 1985 the respondent challenged the validity of the appointment of arbitrators by the High Court. Another learned single judge of the High Court set aside the appointment of the arbitrator on the ground that it was contrary to the provisions of the agreement. The question considered by Supreme Court was whether the respondent who participated in the arbitration proceedings without protest can be allowed to raise such a contention. The apex court after

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referring to the Law of Arbitration by Russell 18^th edition, held that when the parties to reference agree in the method of appointment or acquiesce in the appointment with full knowledge they will be precluded from objecting to such appointment. But it is seen that there was no provision which excluded the jurisdiction as in the present case.

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The next judgment relied on is - Mumbai International

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Airport Private Limited V Golden Chariot Airport and another

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[(2010) 10 SCC 422] where the question considered was with respect to the conditions in the agreement and the inconsistent stand adopted by the party before different forums. The respondent therein had initially sought a decree with respect to the irrevocability of license when that court returned the plaint as it did not have pecuniary jurisdiction. Thereafter that prayer was withdrawn and matter was got adjudicated as per directions from the court. Civil court decreed the suit holding that as per the provisions in the license agreement the parties had agreed to subject themselves to the provisions of public premises eviction of unauthorised occupants Act, 1971. Thereafter proceedings were initiated before the estate officer, who ordered eviction of the respondent. The order of Estate Officer was then challenged. Finally respondent again raised the contention that license was irrevocable. In those circumstances, the apex court held that a

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party cannot blow hot and cold or approbate and reprobate. The ouster of jurisdiction was not an issue considered there.

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The learned counsel relied on the judgment in Kedar Shashikanth Deshpande V Bhor Municipal Council : (2011) 2 SCC 654. In that case the jurisdiction of the Additional Collector to entertain and decide a disqualification petition filed under Maharashtra Local Authority Members Disqualification Rules, 1987 was one of the issues raised and dealt with in paragraphs 28 to 30. As per section 7 of the Act, the collector has to decide the question of disqualification. The apex court observed that, the appellants therein had never raised the question of jurisdiction either before the Additional Collector or before the High Court. Referring to the judgment of the apex court in Remington Rand of India Ltd vs Thiru R. Jambulingam : (1975) 3 SCC 254 where it did not allow the plea of lack of jurisdiction to be taken for the 1^st time in an appeal, after the appellant having submitted to it in earlier proceedings. It was further observed that section 13(3) of the Maharashtra Land Revenue Code, 1966 provides for statutory delegation in favour of Additional Collector, which is a question of fact and therefore the appellants could not be permitted to argue for the 1^st time before the court the plea that Additional Collector has no jurisdiction to entertain the disqualification petition filed by the respondents. It was further found that the appellants had

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submitted to the jurisdiction of the Additional Collector and participated in the proceedings before him without any reservation. Therefore having lost before the Additional Collector, they cannot be allowed to challenge the jurisdiction for the 1^st time when the appeal is filed under Article 136 of the Constitution. However it was further found that, the respondents would have got the opportunity to place on record notification issued under the provisions of the Land Revenue Code 1966 to establish that the Additional Collector was delegated the powers of the Collector and was competent to decide the disqualification petition. In that case the counsel for the State Government had produced a notification by which the Additional Collector was conferred with the powers of Collectors under the Maharashtra Land Revenue Code 1966 and therefore Additional Collector was found to have jurisdiction to entertain the disqualification petition filed by the respondents. Thus in that case though it was observed that the plea regarding jurisdiction cannot be allowed to be raised for the 1^st time before the apex court, after the parties submitted to the jurisdiction, a decision was not called for in that case, since it was found that the Additional Collector did have jurisdiction.

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In Remington Rand of India Ltd. v. Thiru R. Jambulingam, (1975) 3 SCC 254 , respondent had filed an appeal

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before the Commissioner under Section 41(2) of the Tamil Nadu Shops and Establishments Act (briefly the Shops Act). The first charge that he was absent without leave on one day alone was found proved and held that the order of dismissal was absolutely disproportionate to the gravity of the offence proved. The Commissioner set aside the order of dismissal, which was under challenge before the apex court. The contention of the appellant was that when a special forum for relief was provided under the ID Act, by making an application under Section 33(A) of that Act, the remedy resorted to by the respondent under the Shops Act must be held to be excluded, since the respondent claimed to be a protected workman before the Tribunal. It was held that the respondent having chosen a wrong forum was precluded from challenging the order of dismissal before the Commissioner. Apex court found that the appellant submitted to the jurisdiction of the Commissioner and had not raised any objection to its jurisdiction to hear the appeal. It is seen that there also was no specific exclusion or a provision like Section 70B of the Act.

¶134

In Joint Action Committee of Airline Pilots Association of India (ALPAI) and others vs Director General of Civil Aviation and others: (2011) 5 SCC 435, the apex court was considering the validity of a circular issued by the Director General of

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Civil Aviation with respect to the flight time and flight duty time limitation. In paragraphs 11 and 12, the apex court dealt with the objections raised with respect to the inconsistent stand adopted by the apellants, seeing that in the earlier writ petition they had challenged the amendment dated 27.7.2007 and by judgment dated 31.01.2008 that writ petition was dismissed as not pressed, saying that their grievance was redressed. In that writ petition their contention was that the 1992 circular was the most scientific and proper. They had not sought permission of the court to reserve their right to file fresh petition in the subsequent petition directly challenging the 2007 order. In those circumstances, relying on R. N. Gosai V Yashpal Dhir: (1992) 4 SCC 683 the apex court held that law does not permit any one to both approbate and reprobate. The doctrine of estoppel by election was held to be one of the species of estoppel which is a rule of equity. It was observed that a person may be precluded by his actions or conduct of silence when it is his duty to speak, from asserting a right which he otherwise would have had; the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. However the question of jurisdiction was not an issue there.

¶138

On consideration of the various caselaws it has to be concluded that the delay in raising the objection as to jurisdiction of

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the Joint Registrar or acquiescence of the petitioner by submitting to various proceedings will not confer jurisdiction on the Joint registrar to interfere with the disciplinary action against the 3^rd respondent by invoking Rule 176. In view of the ouster of jurisdiction as held in Jayarani's case (supra) and Kanjoor Co-operative Bank case (supra), the Joint Registrar ought to have transferred the complaint of 3^rd respondent to the concerned Arbitration Court.

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In support of the contention that the power under Rule 176 is distinct and different and can be exercised independent of any other proceedings, the learned counsel relied on the judgments of this court in President, Pudupariyaram Service co-operative Society v. Rugmini Amma: 1996 (1) KLT 100; Chithambaran V Registrar of Co-operative Societies: 1996(2) KLT 66; Christian College cooperative society vs Annamma John: 1998(2) KLT 435, judgment dated 11.03.2004 in O.P. No. 5605 of 2003 and the Full Bench judgment of this court in Shirly V Parapuram Milk Producers Cooperative Society Ltd: 2007(1) KLT 809. In Rugminiamma's case, this court held that power under rule 176 can be invoked provided the resolution offends any provision of law or is against any direction issued by the Department or is contrary to the society's interest. Referring to the full bench judgement of this court in Aji vs state of Kerala: 1995 (1) KLT 363, where it was held that the Registrar is not

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a silent spectator against any erring society; he is vested with adequate power to rescind resolutions whenever situations demands. However it was held that the Joint Registrar cannot have a different conclusion and he cannot reverse the factual finding while exercising power under Rule 176 of the rules. In the discenting judgement in that case this court found that the ingredients under Rule 198 (1) and (2) were satisfied and that a 2^nd opportunity was not contemplated in the proceedings under Rule 198. However since there was no disciplinary committee constituted and the appellate remedy was taken away the order of Joint Registrar was sustained. At the same time it was found that Rule 176 did not provide for issuing any direction to reinstate and that part of the order cannot stand. In yet another judgement Chidambaram vs Registrar of Co-operative societies: 1996(2) KLT 66, a division bench of this court again considered the question as to the authority of the Joint Registrar to invoke its power to rescind the resolution under Rule 176. It was held that when the disciplinary proceedings were held in violation of Rule 198, the Joint Registrar can invoke his power under rule 176. There the order of punishment was passed by the Board of Directors, when the competent authority was President of the bank. Therefore the action invoking the rule was upheld. In the judgment in Christian College co-operative society vs Annamma John: 1998(2) KLT

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435, a division bench of this court held that disciplinary proceedings are not taken out of the purview of Rule 176. Respondent filed an arbitration suit challenging the decision of the society. When it was pending she challenged it filing O.P.No. 5067/88 and the O.P was dismissed. In the arbitration case the society raised an objection that the 2^nd respondent has no jurisdiction to deal with the dispute relating to termination of service under section 69 of the Act and the Joint Registrar was not competent to interfere with the matter under rule 176. The arbitration case was thereupon dismissed, saying that arbitration court did not have jurisdiction and she had to raise an industrial dispute. She filed another O.P, which was also dismissed. She again approached the Joint Registrar under Rule 176 and the joint registrar rescinded the resolution saying that there was violation of rule 198 of the Rules. In the light of the full bench judgement in Aji' s case, the judgment in Rugminiamma' s case and in Kunhahamed V Joint Registrar: 1998(1) KLT 60 , it was held that Joint Registrar is competent to interfere in disciplinary matters and rescind resolution by invoking powers under Rule 176, on conditions provided in rule 176. In the judgment dated 11.03.2004 in O.P.No. 5605 of 2003 a learned Single Judge of this court held that the power of Joint Registrar will extent to interference with the punishments also, considering the gravity of the offence. The question regarding

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jurisdiction was not considered in that case. In the Full Bench decision in Sherly's case the employee had already approached the authority seeking action under Rule 176. She thereafter raised an industrial dispute. The Full Bench held that an employee subjected to disciplinary action has a right to have her grievance adjudicated before an independent forum having the trappings of court and that reference to Industrial Tribunal was valid under ID Act. This court observed therein that the Deputy Director had exercised only limited jurisdiction under rule 176 of the rules as to whether the decision of the committee of the society was to be rescinded for the reasons enumerated under the rule, there was no adjudication of the dispute on merits. But in that case the issue with respect to jurisdiction under 176 was not an issue referred for consideration of the Full Bench. The question referred was whether the proceedings under the ID Act were within authority after her application under Rule 176 was rejected.

¶151

It is relevant to note all those judgments except that in Shirly's case were rendered before the service disputes of employees of Co-operative Societies were brought under the purview of Cooperative Arbitration Courts and before those courts were established and when Section 70 B was not in operation. The termination of service was to be taken up under the ID Act at that time. In view of the larger bench decision in Chirayankeezhu Service Co-operative

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Bank Ltd. v. Santhosh [2015 (4) KLT 163(L.B)], the remedy against termination lies before the arbitration court.

¶155

In this case however it can be seen that the Joint Registrar has not only held that the disciplinary action was in violation of rule 198 (1) and (2) but also the punishment was excessive, which is beyond the power under Rule 176, as per the judgment of the Division Bench in Rugminiamma's case (supra). The question which arises in this case was not under consideration in any of those cases.

¶156

In the larger bench decision, it was held that on the Constitution of arbitration courts under section 69 and 70 of the Act, there is a complete ouster of jurisdiction in respect of service disputes between the society and the employees of societies and no court other than arbitration court can adjudicate the issue. In the light of the judgments in Jayarani T. V. Assistant Registrar of Co-operative Societies [2016 (2) KLJ 446] and Kerala State Co-op.Agrl. and R.D.B Ltd. v. Joint Registrar of Co-op. Societies [2016 (1) KLT 572], and in Kanjoor Service Cooperative Bank V. Joint Registrar: 2016(3) KLT 73 , the Joint Registrar is already divested of his juridiction under R.176, to interfere with service disputes of the employees of Co-operative Societies, consequent to the amendment to Section 69 and setting up of arbitration courts. Therefore the Joint Registrar before whom the complaint of the 3^rd respondent was

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pending as on the date of establishment of Co-operative Arbitration Courts, ought to have transferred the same to the Arbitration Court under Section 70B of the Act.

¶159

Therefore Exhibits P10 and P23 are set aside. The 3^rd respondent would be free to seek his remedies from the Co-operative Arbitration Court within a period of one month from the date of receipt of a copy of the judgment. Accordingly the writ petition filed by the society W.P.(C) No. 2165 of 2005 is allowed and the writ petition filed by the 3^rd respondent W.P.(C) No. 5670 of 2005 is dismissed.

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Sd/-

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P.V.ASHA JUDGE

E.K.Augustine v. State of Kerala

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E.K.Augustine v. State of Kerala

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