IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 11935 of 2004(U)
1. A.K.SHANMUGHAN, XX/1476,
... Petitioner
Vs
1. THE JOINT REGISTRAR, CO-OPERATIVE
... Respondent
2. THE MANAGING COMMITTEE, CORPORATION
3. THE PRINCIPAL SECRETARY TO GOVERNMENT,
For Petitioner :SRI.RAJU ABRAHAM PULPARA
For Respondent :SRI.M.M.MONAYE
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :02/06/2008
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).No.11935 OF 2004
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Dated this the 2nd day of June, 2008
JUDGMENT
Petitioner was the secretary of the second respondent co-
operative society. Certain memo of charges was issued to him,
that led ultimately to an order of compulsory retirement, which
was made effective retrospectively. There were disputes
between the parties regarding payment of subsistence
allowance. A writ petition was filed before this Court, which
ultimately led to the judgment of the Division Bench, Ext.R2(w),
in a writ appeal. The rights of parties emerging out of the
judgment in that writ petition are essentially preserved by the
writ appeal judgment to be worked out later on, depending upon
whether the compulsory retirement could be retrospective or
not. The question as to whether the memo of charges was issued
with appropriate factual and legal foundation and result of the
disciplinary proceedings, including the imposition of the
punishment are matters which are raised in this writ petition,
after those issues fell for consideration of the Joint Registrar and
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the Government. The question whether the petitioner is
entitled to subsistence allowance on account of the retrospective
compulsory retirement was also decided by the Government
against the interest of the petitioner. That is also subject matter
of this writ petition.
2. Being a matter which is filed before this Court in 2004, in
the normal course, an alternate remedy would not have been
thought of to relegate the petitioner to a different forum. But
the fact of the matter is that, as of now, Ext.P11 arbitration case
No.156/04 is filed by the employer society before the competent
arbitrator, invoking provisions of the Kerala Co-operative
Societies Act, 1969, raising claims against the petitioner for
recovery of amounts. The claims made in that arbitration are,
going by the statement of the learned counsel appearing for the
petitioner, essentially those covered by the memo of charges
Ext.P1. This means that, on facts, as of now, the dispute inter-se
lie in two fora; at the instance of the employer society before the
arbitrator and at the instance of the employee, the petitioner, in
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this writ petition. There is a fair chance that ends of justice
would not be secured by such proceedings.
3. Within the framework of Section 69 of the KCS Act as
amended by Act 1 of 2000, there is a clear exclusion of
jurisdiction of the Registrar to interfere with disciplinary
proceedings. So much so, the appellate remedy therefrom is also
excluded even if it reaches the hands of the Government. Even
without dilating much on that aspect, it can be easily noticed
that the issues raised by the petitioner in this writ petition are
matters that could be reasonably agitated before the arbitrator.
However, any decision of the Registrar or the Joint Registrar and
the Government which may be against the petitioner in so far as
disciplinary proceedings are concerned would stand as
bottlenecks in such a procedure being adopted. But that may not
be as by now, because the arbitration proceedings initiated by
the employer society (Ext.P11) stands stayed by this Court in this
writ petition.
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4. In the aforesaid backdrop, it is necessary that the parties
have redressal of their grievances before a single forum and it is,
hence, abundantly necessary that the petitioner is relegated by
this Court in relation to his disciplinary proceedings as also
further claims regarding the subsistence allowance, without, in
any manner, interfering with the effect of Ext.R2(w) judgment of
the Division Bench and the judgment affirmed thereby.
6. In the result, the decisions of respondents 1 and 3, which
are impugned in this writ petition, are vacated and the petitioner
is relegated to the competent court viz., the arbitration court.
The petitioner may invoke the jurisdiction of the arbitration
court by filing an arbitration case within a period of one month
from now. If such arbitration case is filed in relation to the
disciplinary proceedings, the arbitration court will intimate the
authority before whom Ext.P11 is pending regarding the
institution of such arbitration case and thereupon Ext.P11 shall
also be transmitted to the arbitration court on the strength of
this judgment. If the society is desirous of filing any further
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arbitration case, that shall also be done before the arbitration
court to be consolidated with the aforesaid proceedings. All the
aforesaid proceedings shall be concluded by the arbitration court
within an outer limit of six months without fail, having regard to
the nature of the claims and the disputes involved.
The writ petition ordered accordingly.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge
kkb.3/6.