JUDGMENT
J.B. Koshy, J.
1. In all these Writ Appeals the common question to be considered is the applicability of Chapter XV of the Kerala Co-operative Societies Rules, 1969 (hereinafter referred to as the Rules) to the Dairy Development Societies under the Agriculture (Dairy) Department of the Kerala Government. The contention of the Societies i.e. the appellant in W.A. No. 1132/99 and the respondent Society in W.A. Nos. 1426 & 1439 of 1999 is that Chapter XV is applicable only to classified societies under Section 80(1) of the Co-operative Societies Act (in short Act) and Dairy Development Society is not classified under Appendix III as provided under Rule 182. Section 80(1) to Section 80(3) reads as follows:
“80. Officers, etc. of Co-operative Societies :-
(1) The Government shall classify the societies in the State according to their type and financial position. (2) The Government shall, in consultation with the State Co-operative Union, fix or alter the number and designation of the officers and servants of the different classes of societies specified in Sub-section (1). (3) The Government shall, in consultation with the State Co-operative Union, makes rules (either prospectively or retrospectively) regulating the qualifications, remuneration, allowances and other conditions of service of the officers and servants of the different classes of societies specified in Sub-section (1).." Section 80(3) provides that Societies can be classified as per Appendix III and Section 80(3) further provides that service conditions for the classified societies under Section 80(1) can be prescribed by the Government. Rule 182 provides as follows: "182. Classification under Section 80(1) :- For the purpose of Sub-section (1) of Section 80, the societies in the State shall be classified as shown in Appendix III: Provided that the Government may on their own motion or otherwise, after consultation with the Registrar, revise such classification once in every three years.
It is the contention of the Societies that these societies are not classified as per Appendix III and no rules can be passed by the Government regulating the service conditions of these societies under Section 80(3) and Government can make rules regulating the service conditions of the societies which are classified under Appendix III only and hence the rules framed regulating service conditions under Chapter XV are not applicable to such societies.
2. With regard to W.A. No. 1132/99 is concerned, it was filed by a society against the judgment in O.P. No. 19545/98. The petitioners in the above O.P. were suspended pending enquiry. Ext. P3 order in the above O.P. was passed by the Registrar directing the Society to pay the subsistence allowance to the suspended employees of the Society, petitioners therein as provided under Rule 198(6). This court directed the society to implement the order by the impugned judgment. According to the appellant since Chapter XV is not applicable to the unclassified society, learned Judge went wrong in directing to pay subsistence allowance as per Ext. P3. With regard to W.A. Nos. 1426 & 1439 of 1999 are concerned, the society approached this court when Government passed an order directing to reinstate a dismissed employee of the society without observing the provisions of Rule 198(3) and without complying with the directions of the Joint Registrar. By judgment in O.P. No. 18132/97 learned single Judge held that Chapter XV is applicable only to the societies classified under Section 80(1) and Appendix III, and impugned order was set aside and directed the Government to pass fresh orders after hearing both sides. After rehearing, again the Government directed to reinstate the employee as his dismissal was violative of Section 27(1) of the Act and bye-laws of the Society. That was again set aside by this court by judgment in O.P. No. 12487/98 stating that Chapter XV is not applicable and matter was not properly considered. Therefore, two Writ Appeals were filed by the dismissed employee against the finding of non-application of Chapter XV in both judgments. Therefore, in all these Writ Appeals the only question to be considered is whether Dairy Development Societies are covered under Chapter XV of the Rules.
3. Chapter XV to the Rules was introduced with effect from 1st January, 1974 and it was published in the official Gazette dated 27th September, 1973. Gazette shows that SRO.No. 596/73 was published under Section 109(1) and the rules were made under Section 109 of the Kerala Co-operative Societies Act. S.R.O. reads as follows :
“S.R.O.No. 596/73–In exercise of powers conferred by Section 109 of the Kerala Co-operative Societies Act, 1969 (21 of 1969), the Government of Kerala hereby make the following amendments to the Kerala Co-operative Societies Rules, 1969, the same having been previously published as required by Sub-section (1) of the said section.”
Therefore, it can be seen that these rules were framed under Rule 109 and not under Section 80(3). It is not disputed that the power of the Government in framing rules under Section 109 is applicable to all societies and not only to the classified societies under Section 80( 1). No challenge is made to the rules by none of the parties herein on the ground that Government has no power to frame rules under Section 109 governing service conditions
of the societies. Section 109(1) reads as follows:
“109. Power to make rules :- (1) The Government may, for the whole or any part of the State and for any class of societies, after previous publication, by notification in the Gazette, make rules (either prospectively or retrospectively by) to carry out the purposes of this Act.”
In Section 109(2) certain examples are provided stating that those mentioned in Section 109(2) only some of the rule making powers are enunciated “without prejudice to the generality of the foregoing power” [under Section 109(1)]. Section 109(2)(xxxviii) gives Government the power to frame rules in any matter required or allowed by this act; or be prescribed. So long as rule making power of the Government is not questioned and rules were framed under Section 109 and not under Section 80(3), according to us the contention that since these societies are not classified, the rules under Chapter XV are not applicable has to be rejected as these rules were not framed under Section 80(3), but under Section 109.
4. Apart from the above, this court as early as in Cheilappan v. Director of Handlooms, 1983 K.L.T 912, held that so long as there is no specific exclusions, Rule 183 which is coming under Chapter XV will apply to all societies. There identical contention was raised that since the Handloom Weavers Co-operative Society is not classified under Appendix III, Rule 183 under Chapter XV will not apply as it is coming under Chapter XV. That was not accepted. This court held that the rules under Chapter XV will also apply to all societies. Even though there were several amendments to rules subsequently, this provision was not touched because the Government also accepted the ruling held in 1983 K.L.T 912. Learned Judge who passed the contrary opinion in O.P. No. 18132/97 himself has held otherwise in Cochin Co-operative Hospital v. Annamma, 1998(1) K.L.T. 801, where application of Rule 189(3) under Chapter XV was in question and learned Judge held that Rule 189(3) is applicable to all societies registered under the Kerala Co-operative Societies Act. The Supreme Court also held that when a particular state of law has been prevailing in a particular area for a period of time where people of that area were adjusted themselves with that law in their daily life, it is not desirable that the court should upset such law except under compelling circumstances in T. Venkata Subbamma v. T. Rattamma, AIR 1987 SC 1775 paragraph 18. The plea of reconsideration of the earlier decisions can be entertained only if the court is satisfied that there are compelling circumstances and substantial reasons. Therefore, even if an alternate view is possible, since earlier decision reported in 1983 K.L.T 912 (supra) is prevailing for a long time and for more than 15 years it was followed, reconsideration of the matter will not ordinarily be proper. This rule is based on experience and public policy as held by the Supreme Court in The Keshav Mills Co. Ltd. v. The Commissioner of Income Tax, AIR 1965 SC 1636 & Maktul v. Manbhari, AIR 1958 SC 918.
5. Apart from the above, since rules are not challenged and rules are framed under powers vested with the Government under Section 109 and not under Section 80(3), we see no reason to hold that these rules in Chapter XV are not applicable to Dairy Development Societies mainly because they are not classified under Chapter XV. Further, even though Section 182 provides how societies are classified, Rule 183 to 200 never gives an indication that these rules framed under Section 109 are not applicable to unclassified societies under Appendix III. Rules framed are applicable to all Societies unless they are specifically exempted in the rules itself or as provided under Rule 181. Rule 181 reads as follows:
“181. Power to exempt from Rules :- The State Government may, by general or special order and subject to such conditions as they deem fit, exempt any registered society or class of such societies from any of the provisions of these rules or may direct that such provisions shall apply to such society or class of societies with such modifications as may be specified in the order.”
Government also has framed rules under Rule 181 as can be seen from S.R.O. 478/96 exempting certain provisions of Rules 198 and 199 under Chapter XV to certain officers of the Dairy Co-operative Societies by virtue of powers conferred by Rule 181. Unless the rule is not applicable, there is no need for granting exemption and these rules are applicable to all societies registered under the Co-operative Societies Act. Hence we need not look into the contention that all societies in Kerala are classified under Appendix III one way or other including Dairy Development Societies which are actually primary societies attached to the Apex milk marketing society (MILMA).
6. Since we are of the view that rules in Chapter XV are applicable to all societies registered under the Co-operative Societies Act and as the rules are framed under Section 109, we agree with the views expressed by this court with regard to application of Chapter XV in Cheliappan v. Director of Handlooms (supra) and Cochin Co-op. Hospital v. Annamma (supra).
7. With regard to other contentions raised by the Secretary of the Society, petitioner in O.P. No. 18132/97 against Ext. P 17 and consequential orders Ext. P 18 and P 19, his contentions were considered by the learned judge in paragraphs 2 & 3 of the impugned judgment and it was held as follows:
…Thus the Joint Registrar/Deputy Director had already taken a view on the matter approving his dismissal. Therefore his next remedy was to approach the Govt. He approached the Govt. have power under Section 83(1)(j) to entertain an appeal against any order made by any person exercising any or all powers of the Registrar. Ext. R4(m) was such an order passed by the Joint Registrar approving the dismissal of the 4th respondent, Therefore he rightly approached Govt. with Ext. R4(n). Govt. considered the said representation in the form of an appeal and heard the 3rd respondent Co-operative Society and passed Ext. P 18 setting aside the disciplinary action and directing reinstatement of the 4th respondent. The main ground for issuing such order was that the action of the society in dismissing the 4th respondent was “without observing the provisions of Rule 198(3) and without complying with the directions of the Joint Registrar (Dairy) dated 6.4.94.” It was also proved before Govt. that the disciplinary action was finalised by the Board of Directors instead of the sub committee. Therefore the 4th respondent lost a statutory remedy of appeal to Govt. It is, submitted, relying on the decision of this court in President, Pudupariyaram Service Co-operative Society v. Rugmini Amma, 1996(1) KLT 100, that a right of appeal is an available right, when statute has provided such right it should not be defeated by not forming a sub committee or executive committee. Thus failure to constitute a sub committee was found to be contrary to the provisions of the rules. Therefore Govt. found that the dismissal of the 4th respondent was vitiated for violation of Rule 183 of the Co-operative Societies Rules.
“….I am unable to accept that contention because as seen from Ext. R4 (m) the Registrar had already disclosed his mind with regard to the dismissal of the petitioner, approving the action of the society. Therefore there is no point in the 4th respondent again approaching the Registrar. Therefore he rightly
pointing out that order of the Registrar filed Ext. R4 (n) before Govt. and Govt. entertained it. It is perfectly within the jurisdiction of the Govt. Another contention of the petitioner is that the result of Ext. P 18 is his consequent reversion and therefore he ought to have been heard. The petitioner is misconceived of the principles of natural justice when he contends so. He forgot for a moment that he was occupying the post of Secretary in the vacancy arisen for the reason of the dismissal of the 4th respondent. As and when the dismissal of the 4th respondent is set aside naturally, the consequential changes will fall on the petitioner. He cannot contend that he also is liable to be heard in the matter of disciplinary action against the 4th respondent. Therefore I reject that contention as well.”
We are in perfect agreement with regard to the above observation and findings of the learned Judge. No convincing arguments were also advanced before us to the effect that the above observations are incorrect by the respondents in the appeal. Further, society (3rd respondent in the O.P.) did not challenge Ext. P 18 in the above O.P.
8. After the remand on the basis of the judgment, hearing was granted to the society while passing orders by Ext. P3 in O.P. No. 12487/98. It was found as follows:
“3. Government heard both the Counsels representing both petitioner and the President of the Society. After having examined the case in detail Government find that Shri Sivarajan is entitled to the leave being sanctioned. Hence the action of the Society without complying with the directions of the joint Registrar is illegal and irregular and so the entire proceedings ending in the dismissal of Shri Sivarajan are illegal and against Section 27(1) of the Cooperative Societies Act, 1969 and Clause 5.11 (XXIV) A of the Bye-laws of the Society. Hence the decision of the society in the matter is set aside.”
In view of the earlier findings we see no reason to interfere with the above. No arguments were also advanced by the society before us that the above findings are incorrect except lack of jurisdiction in view of non-application of Chapter XV of the rules to the society which we have held otherwise. Society also did not file any writ petition challenging Ext. P 18 in O.P. No. 18132/97 on merit, but only Secretary of the Society in his personal capacity challenged the same making society as 4th respondent.
In the result we allow W.A. No. 1426 & 1439 of 1999 and dismiss O.P. No. 12487/98 and O.P. No. 18132/97. We also dismiss W.A. No. 1132/99 affirming the judgment in O.P. No. 19545/98.
W.A. No. 1426 & 1439 of 1999 allowed, O.P. Nos. 12487/98 and
18132/97 & W.A. No. 1132/99 dismissedp2
