Society; Ratnarajan A. Vs. Kerala Kera Karshaka Sahakarana Federation [02-07-2012]

Co-operative Societies Act, 1969 (Kerala) – Ss. 2 (f) & 69 – Society – to challenge the order of suspension – Remedy of –  Maintainability of the Writ Petition – Wherever the words society’ or ‘co- operative society’ are used, the definition contained in Section 2(f) would apply and hence can be considered only as referring to a society defined by the said provision – Since an efficacious and alternative remedy is provided by the Statute, it is incumbent upon the petitioner to exhaust the said remedy first before approaching High Court with a petition under Article 226 of the Constitution.

# Society

# 2012 (3) KLT 637 : 2012 (3) KLJ 506 : ILR 2012 (3) Ker. 543

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.SURENDRA MOHAN, J.

W.P(c) No.14189 of 2012-W

 Dated this the 2nd day of July, 2012

FOR PETITIONER: BY ADVS.SRI.ELVIN PETER P.J. , SRI.T.G.SUNIL (PRANAVAM) , SRI.K.R.GANESH

FOR RESPONDENTS: BY SPECIAL GOVERNMENT PLEADER SRI D.SOMASUNDARAM , BY ADV. SRI.MOHAMMED SHIRAZ,SC,KERALA KERA KARS

J U D G M E N T

The petitioner has filed this Writ Petition challenging Ext.P12 order of suspension passed against him by the 4th respondent. The petitioner is an employee of the 1st respondent. He is working at Kanhangad, Kasaragod district, as an Incharge of Copra Procurement.

2. Advocate P.M.Mohammed Shiraz, who appears for the 1st respondent, raises a preliminary question regarding the maintainability of the Writ Petition itself. According to the counsel, the dispute in this Writ Petition, being one between an employee and a Co-operative Society, can be determined only in accordance with the provisions of

# Section 69 of the Co-operative Societies Act, 1969

(`the Act’ for short). The learned counsel also relies on the decision of this Court in

# Edava Service Co- operative Bank Ltd. v. Co-operative Arbitration Court, 2008 (3) KLT 780.

3. Advocate K.R.Ganesh, who appears for the petitioner, relies on another decision of this Court in

# Surabhi Employees Trade Union Congress v. Kerala State Handicrafts Apex Co-op. Society Ltd., 2002 (2) KLT 77

to contend that the Kerala Kerakarshaka Sahakarana Federation Limited No.4370 (`KERAFED’ for short) being an Apex Society is an authority under Article 12 of the Constitution amenable to the writ jurisdiction of this Court. It is also contended that Section 2(a) of the Act defines an Apex Society separately. The Apex Society being a separate and distinct category of society not specifically made mention of in Section 69 of the Act, the remedy under the said provision is not available to the petitioner. At any rate, it is contended that the petitioner being in Kasaragod, the said remedy is not an efficacious alternative remedy to the one under Article 226 of the Constitution.

4. I have heard the learned Special Government Pleader Sri D.Somasundaram also. According to the learned Special Government Pleader, though different categories of societies have been separately defined by the Act, all societies are treated equally and without any distinction for the purpose of Section 69 of the Act. The Act, apart from defining an Apex Society, also defines various other societies. Therefore, the interpretation canvassed by the learned counsel for the petitioner if accepted, would have the effect of excluding certain categories of societies from the purview of Section 69 of the Act which is not justified. Such a consequence would also be disastrous, it is contended.

5. I have heard the learned counsel for the contesting parties and have also considered the contentions anxiously.

6. It is not in dispute that the petitioner is an employee of the KERAFED, a society registered under the provisions of the Act. Section 2(f) of the Act reads as follows:
“Co-operative Society” or “society” means a co- operative society registered or deemed to be registered under this Act”
Therefore, without any doubt, the KERAFED is a Co-operative Society. It is true that Section 2(a) defines an Apex Society as a society that has the whole of the State as its area of operation and having as its members only other societies with similar objects and declared as such by the Registrar. As rightly pointed out by the learned Government Pleader, various other societies are also defined separately by the Act. Section 2(g) defines a “Co-operative Society with limited liability”, Section 2(h) defines  a “Co-operative Society with unlimited liability”, Section 2(ib) defines a “Federal Co-operative Society”, Section 2(la) defines “Miscellaneous Societies”, Section 2(od) defines a “Primary Co- operative Society” and Section 2(taa) defines an “Urban Co- operative Society” separately. Similarly, “State Co-operative Agricultural and Rural Development Bank”, “State Co-operative Bank” and “Urban Co-operative Bank” are defined separately to mean different categories of societies. However, a reading of Section 69 shows that the said provision does not maintain any distinction or differentiation among the various categories of societies that are governed by the provisions of the Act. For the above reason, it is clear beyond any doubt that the provisions of Section 69 applies with equal force to all the categories of societies defined by the Act, without any distinction or differentiation. Therefore, it has to be held that the contention of the learned counsel for the petitioner that the provisions of Section 69 can have no application to an Apex Society has to fail. The definition contained in Section 2(f) defines a society as a Co- operative Society registered or deemed to be registered under the Act. Therefore, wherever the words `society’ or `co- operative society’ are used, the definition contained in Section 2(f) would apply and hence can be considered only as referring to a society defined by the said provision.

7. With the above understanding of the definition when Section 69 is read, it is to be noticed that the opening of the said Section with a non obstante clause, excludes the application of all other laws in force by a remedy that is provided by the said provision for settlement of the disputes between a society and its employees. Sections 69(1)(c) is reproduced hereunder for convenience of reference.

# Section 69. Disputes to be decided by Co- operative Arbitration Court and Registrar

(1) Notwithstanding anything contained in any law for the time being in force, if a dispute arises, —

(a) ……………..

(b) ……………..

(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) ……………

(e) ……………

(f) ……………

(g) …………….

(h) ……………..;

such dispute shall be referred to the Co-operative Arbitration Court constituted under Sec.70A, in the case of non-monetary disputes and to the Registrar, in the case of monetary disputes and the Arbitration Court, or the Registrar, as the case may be, shall decide such dispute and no other court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute.”

Sub Section (2) of the said provision clarifies the position further by bringing all disputes in connection with the employment of officers and servants of the different classes of societies within the umbrella of the said provision. Subsection 2 (d) reads as follows:

“(2) For the purposes of sub-section (1), the following shall also be deemed to be disputes, namely:-

(a) xxxxxxxxxx

(b) xxxxxxxxxx

(c) xxxxxxxxxxx

(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.”

Since an efficacious and alternative remedy is provided by the Statute, it is incumbent upon the petitioner to exhaust the said remedy first before approaching this Court with a petition under Article 226 of the Constitution. A similar view has been expressed by this Court while considering an identical question in the decision reported in Edava Service Co-operative Bank Ltd. (supra). Para.6 of the said decision reads as under:

“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.”

The above legal position gets further support from the observations of a Division Bench of this Court in the decision in

# Raveendran, P.S. v. State of Kerala, ILR 2007(3) Kerala 241.

Para.3 of the said judgment reads as follows:

“3. We are of the view, after the coming into force of Act 1 of 2000 with effect from 2.1.2003, the dispute in connection with the employment of officers and servants of different classes of societies specified in sub-section (1) of Section 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 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.”

8. In view of the above binding dictum, there cannot be any doubt that the remedy of the petitioner to challenge the order of suspension is by invoking Section 69 of the Act.

9. The learned counsel for the petitioner has placed reliance on the decision reported in

# Surabhi Employees Trade Union Congress v. Kerala State Handicrafts Apex Co- operative Society Ltd. [2002 (2) KLT 77].

In the said case, the dispute was regarding regularisation of certain employees of the society. There, this Court has considered whether a writ petition that has remained pending before this Court for a number of years should be dismissed for the reason that an equally efficacious alternative remedy was available to the petitioners therein. This Court considered the constitution of the Apex Society, the manner of control exercised over its functioning by the Government, the extent of representation available in its Managing Committee of Government Officials and concluded that the said society was subject to pervasive control by the Government bringing the same within the definition of `other authorities’ under Article 12 of the Constitution. Consequently, it was held that the Writ petition was maintainable against the Apex Society.

10. In the present case even if it is assumed that the society in the present case is amenable to the writ jurisdiction of this Court, the petitioner would still have to answer the question as to why he has not exhausted the alternative remedy provided by the Statute by enacting Section 69 of the Act. Since I have already found that the petitioner has an efficacious alternative remedy in this matter, it is only appropriate that the petitioner is relegated to the said remedy.

For the above reason, this Writ Petition is dismissed, but without prejudice to the right of the petitioner to invoke his remedy under Section 69 of the Act and seek appropriate reliefs.

(K.SURENDRA MOHAN, JUDGE)

rtr/

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