A.P. Paily vs E.V. Raghavan and Others

V.S. Malimath, C.J.—This appeal is by the 5th Respondent in O.P. No. 6011 of 1986, challenging the judgment of the learned Single fudge in the O.P. In regard to certain problems regarding conditions of service such as seniority etc., the dispute between the Appellant, the 1st Respondent and the 5th Respondent, Naduvil Service Co-operative Bank Ltd., was referred u/s 69 of the Kerala Co-operative Societies Act, 1969, to the Assistant Registrar of Co-operative Societies. Before the Assistant Registrar, the question was raised as to whether the dispute raised before him is dispute as defined in Clause (i) of Section 2 of the Act. The Assistant Registrar to whom the dispute was referred, rendered a decision to the effect that the dispute referred to him is dispute as defined in Clause (i) of Section 2 of the Act. He also simultaneously rendered his decision on the merits against the Appellant. It appears that the question as to whether the dispute referred falls under Clause (i) of Section 2 was not raised for decision as a preliminary issue and therefore came up for decision along with all other issues on merits.

The Appellant then challenged the decision of the Assistant Registrar, that the dispute referred is dispute as defined in Clause (i) of Section 2, by way of revision to the State Government u/s 87 of the Act. He also prayed for stay of the operation of the decision of the Assistant Registrar. The State Government who entertained the revision petition of the Appellant, u/s 87 of the Act, made an interim ex parte order in favour of the Appellant, on 17th July 1986. This is Ext. P-3. Instead of appearing before the State Government and requesting it to vacate the interim order, the 1st Respondent came to this Court in O.P. No. 6011 of 1986, praying for the issue of a writ in the nature of prohibition against the State Government from entertaining the revision petition of the Appellant, also praying for quashing of the interim order of stay granted by the State Government. The learned Single Judge by judgment dated 19th August, 1986, allowed the Original Petition, quashed Ext. P-3 and declared that the Government had no competence either to entertain the revision petition or to issue the impugned order Ext. P-3. It is the said order that is challenged in this appeal.

The first contention of Sri M.C. Sen, learned Counsel appearing for the Appellant is that the learned Single Judge could not have allowed the O.P. of the 1st Respondent at the stage of admission without notice to the Appellant. The learned Counsel for the 1st Respondent did not and could not dispute the fact that the O.P. came to be allowed without notice to the Respondents at the stage of admission. It is unfortunate that it was not noticed that notice was not issued to the Respondents and that therefore the O.P. could not have been taken up for final hearing and disposed of against the interest of the contesting Respondents behind their back. Hence, it is obvious that on this short ground the judgment of the learned Single Judge cannot be sustained.

We think, instead of remitting the case back to the learned Single Judge, it is proper that we should hear and dispose of the matter in order to avoid avoidable delay in this case.

The learned Single Judge has observed that the State Government was not competent to entertain the revision petition on the ground that an appeal is competent u/s 82 of the Act. But, it has to be pointed out that so far as the decision of the Registrar, in this case, that of the Assistant Registrar, u/s 69(4) of the Act in regard to the question as to whether the dispute referred is one falling under Clause (i) of Section 2 of the Act or not, has been declared as final by Sub-section (4) of Section 69. This Court has held in Sankara Warriyar v. N.M. Dist. C.S.M.S. Ltd. 1986 KLT 812 that an appeal against the decision of an Assistant Registrar u/s 69(4) is not appealable u/s 82 of the Act.

Section 82 of the Act enumerates the orders against which an appeal lie to the Tribunal. It does not state that a decision rendered under Sub-section (4) of Section 69 is one of the decisions that is appealable u/s 82 of the Act. But, so far as the final award to be made by the Assistant Registrar as the arbitrator under Sub-section (3) of Section 70 is concerned, it is expressly made appealable u/s 82(f) of the Act. It is, therefore, clear that so far as the final award was concerned, the aggrieved party has the remedy by way of appeal to the Tribunal u/s 82 of the Act and so far as the decision of the question as to whether the dispute is one falling under Sub-clause (i) of Section 2 or not, rendered by the Assistant Registrar u/s 69(4) of the Act is concerned, the same is not appealable. Section 87 of the Act confers revisional power on the Registrar and the State Government and expressly provides that in regard to matters in respect of which an appeal to the Tribunal is not provided by Section 82 of the Act, the State Government can correct such decisions in exercise of the power conferred on it by Section 87 of the Act. It is, therefore, clear that so far as the decision of the Assistant Registrar under Sub-section (4) of Section 69 is concerned, the aggrieved party can invoke the revisional powers of the State Government u/s 87 of the Act. The view we have taken receives support from the decision of the Supreme Court reported in E.A. Co-op. Housing Society v. State of Maharashtra AIR 1956 S.C. 1449 dealing with an analogous provision contained in the Maharashtra Co-operative Societies Act, 1960. Sub-section (3) of Section 23 of the said Act provides that the decision of the Registrar in appeal shall be "final". Section 154 of the said Act confers power on the State Government to call for proceedings of subordinate officers and to pass orders thereon, similar to the one provided u/s 87 in the case on hand. Their Lordships pointed out that the word ''final'' in the Maharashlra Co-operative Societies Act in that context means that the order is not subject to an ordinary appeal but it does not touch the special, power legislatively conferred on the Government u/s 154 of the Act. The Supreme Court, therefore, held that the Government was in error in that case in considering that it had no jurisdiction in the case for it obviously had jurisdiction. We have, therefore, no hesitation in taking the view that the learned Single Judge was not right in holding that the State Government did not have power to entertain the revision petition filed by the Appellant. In our opinion, the State Government was well within its jurisdiction to entertain the revision petition so far as it was directed against the decision of the Assistant Registrar rendered under Sub-section (4) of Section 69 of the Act. That being the position, as the State Government had the power of revision, it also had the incidental power of making an appropriate interim order pending disposal of the revision petition. As only an ex parte interim order of stay was granted by the State Government, the 1st Respondent could have gone before the State Government and moved for vacating the order of stay. That course we make it clear, is still open to him.

It was, however, contended by Sri M.K. Damodaran, counsel appearing for the 1st Respondent, that the final decision having been rendered by the Assistant Registrar on merits itself, it will lead to an incongruous situation in regard to the forum where the final decision of the Assistant Registrar could be challenged. There is not much difficulty in the matter for, there is no doubt that in regard to one of the aspects that the Assistant Registrar may have to deal, namely the question as to whether the dispute is one falling under Sub-clause (i) of Section 2, that decision is final subject only to revision to the Government. So far as the award made by the Arbitrator is concerned the same is only appealable u/s 82 of the Act to the Tribunal. Having regard to the scheme of the provisions of Sections 69, 82 and 87 of the Act, the proper course to be adopted by the Assistant Registrar when a dispute is referred to him and the question is raised as to whether the dispute referred falls under Sub-clause (i) of Section 2 of the Act or not, he should ordinarily try such an issue as a preliminary issue and await final decision on the said issue if the aggrieved party challenges the same by way of revision before the State Government u/s 87 of the Act. But, if such a course is not adopted in a particular case, and all the issues including the question arising u/s 69(4) of the Act are simultaneously decided, then the aggrieved party, who is aggrieved by the decision, can challenge the decision of the Assistant Registrar under Sub-section (4) of Section 69 by way of revision u/s 87 of the Act before the State Government and the award itself made u/s 70(3) of the Act by way of appeal before the Tribunal. In such a case the Appellant before the Tribunal should apprise the Tribunal that he has challenged the decision of the Assistant Registrar under Sub-section (4) of Section 69 in revision before the State Government and request the Tribunal to stay further proceedings, till the State Government finally decides the revision petition. If such a request is made, it would be the duty of the Tribunal to wait for the decision of the State Government in the revision petition. If a decision is rendered by the State Government on the question as to whether the dispute falls under Sub-clause (i) of Section 2 of not, the Tribunal can thereafter proceed to dispose of the appeal after taking into consideration the final decision rendered by the State Government u/s 87 of the Act. If such a procedure is followed, there will be no difficulty in giving full effect to the provisions of the Act in a very satisfactory manner. Obviously, if the State Government holds that the dispute referred to it did not fall under Sub-clause (i) of Section 2 of the Act, the Tribunal has to act in accordance with the said decision and hold that the award made by the Arbitrator is without jurisdiction. We, therefore, do not find any substance in the contention of Sri M.K. Damodaran, counsel for the 1st Respondent, in this behalf.

For the reasons stated above, this Writ Appeal is allowed, the judgment of the learned Single Judge is set aside and O.P. No. 6011 of 1986 filed by the 1st Respondent is dismissed without prejudice to the right of the Respondent to move the State Government for vacating the interim order of stay granted by the State Government. No costs.