Disposed

Devassia P.J. v. State of Kerala and Others

Kerala HC22 Nov 2011WP(C)/16880/2010

Case brief

AI extract

What is this about?

In a dispute regarding the constitutionality of the punishment order (reversion with effect from a specific date) passed by a Committee of a Cooperative Bank, the High Court held that the petitioner must approach the Co-operative Arbitration Court under Section 69(2)(d) of the Kerala Cooperative Societies Act, as writ jurisdiction is not maintainable.

What did the court decide?

The writ petition was disposed of by relegating the petitioner to the remedy provided under Section 69(2)(d) of the Kerala Cooperative Societies Act.

Devassia P.J. Vs State of Kerala and Others — Service and Employment | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM

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TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933

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WP(C).No. 16880 of 2010(H)

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PETITIONER

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DEVASSIA.P.J., CHIEF ACCOUNTANT, (NOW UNDER ORDERS OF REVERSION AS ACCOUNTANT) MUKKAM SERVICE CO-OPERATIVE BANK LTD., KOZHIKODE, RESIDING AT PAIMBILLIL HOUSE, MUKKAM P.O., KOZHIKODE.

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BY ADVS. SRI.P.P.JACOB

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SRI.T.P.GOPAKUMAR

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATIVE (C) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.

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2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), KOZHIKODE.

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3. THE MUKKAM SERVICE CO-OPERATIVE BANK LTD.NO.T.1241, KOZHIKODE, REPRESENTED BY ITS SECRETARY.

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4. THE BOARD OF DIRECTORS OF THE MUKKAM SERVICE CO-OPERATIVE BANK LTD.NO.T.1241, KOZHIKODE, REPRESENTED BY ITS PRESIDENT.

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R1 & R2 BY GOVERNMENT PLEADER SMT. ROSE MICHAEL R3 & 4 BY ADVS. SRI.V.G.ARUN

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SRI.T.R.HARIKUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 16880 of 2010(H)

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APPENDIX

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PETITINER'S EXHIBITS

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---------------------------EXT.P1. COPY OF THE CHARGE MEMO DATED 16.2.02 ISSUED BY FOURTH RESPONDENT

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EXT.P2. COPY OF THE LETTER ISSUED BY SUB COMMITTEE CONVENER TO THE ENQUIRY OFFICER DATED 29.7.02.

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EXT.P3. COPY OF THE ORDER OF THE SUB COMMITTEE DATED 7.11.2002.

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EXT.P4. COPY OF THE ORDER ISSUED BY JOINT REGISTRAR DATED 21.11.2002

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EXT.P5. COPY OF THE ORDER ISSUED BY THE SUB COMMITTEE CONVENER DATED 21.11.2002.

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EXT.P6. COPY OF THE ORDER ISSUED BY FOURTH RESPONDENT DATED 24.2.2003

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EX.P7. COPY OF THE ORDER ISSUED BY JOINT REGISTRAR DATED 22.5.2003.

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EXT.P8. COPY OF THE ORDER ISSUED BY JOINT REGISTRAR DATED 22.5.2003

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EXT.P9. COPY OF THE G.O. (RT) 37/04/CO-OP DATED 13.1.2004.

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EXT.P10. COPY OF THE FEEDER CATEGORY RULES APPROVED BY HE JOINT REGISTRAR DATED 14.10.99.

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EXT.P11. COPY OF THE STAFF PATTERN AS WELL AS SENIORITY LIST PUBLISHED BY THE FOURTH RESPONDENT FOR THE YEAR 2001 DATED NIL

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EXT.P12. COPY OF THE JUDGMENT IN WPC 4545/04 DATED 13.2.2008.

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EXT.P13. COPY OF THE JUDGMENT IN W.A. NO.1246/08 DATED 24.6.08.

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EXT.P14. COPY OF THE ORDER ISSUED BY THE FOURTH RESPONDENT DATED 24.4.2008.

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EXT.P15. COPY OF THE NOTICE ISSUED BY THE ASSISTANT REGISTRAR TO THE PETITIONER DATED 5.8.09.

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RESPNDET'S EXHIBITS :

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EXT.R3 (A). COPY OF THE OBJECTION FILED BY THE BANK.

/ TRUE COPY /

P.A. TO JUDGE

C.K.ABDUL REHIM, J. ------------------------------------------W.P.(C) No.16880 of 2010

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Dated this the 22^nd day of November, 2011

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J U D G M E N T

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The issue involved in this writ petition has got a chequered history. The petitioner while working as Chief Accountant in the 3^rd respondent society was suspended from service with effect from 21.11.2002 and was issued with Ext.P1 Charge Memo. Subsequently a domestic enquiry was conducted and through Ext.P3 the sub committee constituted for considering the report of the domestic enquiry had imposed punishment of reversion of the petitioner to the post of Senior Clerk. The petitioner had approached the 2^nd respondent against Ext.P3 decision invoking Rule 176 of the Co-operative Societies Rules. According to the petitioner, in spite of an interim order of stay granted by the 2^nd respondent, he was terminated from the service through Ext.P5 by virtue of a decision taken by the sub-committee alleging that the petitioner had failed to join duty in the post of Senior Clerk to which he is reverted.

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W.P.(C).16880/10

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Even though the petitioner submitted appeals before the committee of the 3^rd respondent, through Ext.P6 the 3^rd respondent had dismissed the appeals and confirmed the punishment imposed through Ext.P3 as well as the termination of service effected through Ext.P5.

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In the meanwhile, the 2^nd respondent had considered the matter under Rule 176 and Ext.P7 & P8 proceedings were issued. The 2^nd respondent had rescinded the resolutions of the sub-committee under Ext.P3 and P5. But the 3^rd respondent Society had taken up the matter in further appeal before the Government. In Ext.P9 the Government had quashed the decision taken under Ext.P5. With respect to the reversion it is observed that the petitioner was working as Chief Accountant and the reversion to the post of Senior Clerk, bypassing the post of Accountant, is against the Rules and it is disproportionate compared to the offence committed by him. Hence it was directed that the petitioner should be reinstated to the post of Accountant.

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W.P.(C).16880/10

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The decision taken by the Government in Ext.P9 was challenged by the petitioner before this court in W.P (C).4545/2004. While disposing the matter, in Ext.P12 judgment, this court found that, the punishment of reversion as well as termination ordered by the subcommittee were under appeal before the committee of the Society and the committee had confirmed the actions by dismissing the appeals. The decision of the committee has not been subjected to any challenge before any authorities and the same has become final. Inspite of the matter was pursued before the Joint Registrar and ultimately the Government had taken a decision. This court found that the decision on the question of imposing a punishment or the choice as to what shall be the punishment, is not an exercise that can be undertaken by the Registrar under Rule 176, nor by the Government sitting in revision against such proceedings. On the other hand, it is a matter best left to the wisdom of the Society exercising its authority through the committee, sitting in appeals. In the case at

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hand, since the committee had not concluded the appeals of the petitioner, it is in the interest of the petitioner to pass appropriate orders taking into view of the fact that the petitioner at that time was serving the 3^rd respondent as Chief Accountant. Therefore in Ext.P12 judgment, this court quashed the decision taken by the 2^nd respondent as well as the decision taken by the Government. Further, Ext.P6 decision taken on the appeals by the committee of the 3^rd respondent was also quashed. This court directed the committee of the 3^rd respondent Society to take up the appeal of the petitioner filed against Ext.P3 and to decide the matter afresh, after affording an opportunity of hearing, within a time frame prescribed.

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Ext.P14 is the consequential decision taken by the committee of the 3^rd respondent. After considering all aspects of the matter the committee found that the reversion of the petitioner to the post of Accountant in which he is at present working, can be approved as sufficient punishment. The committee also decided to

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promote him to the post of Branch Manager with effect from 01.04.2008, considering the fact that the petitioner continued in the post of Accountant from 19.01.2004 onwards and the service rendered by him during such period was satisfactory. A decision was taken to the effect of considering him as senior most in the cadre of Branch Manager. The committee further decided that the period from 08.11.2002 to 18.01.2004 during which he was not in service shall be treated as Leave Without Allowances. It was clarified that the said broken period will be reckoned for the purpose of service benefits like pension, gratuity, increments, etc. The service rendered by the petitioner as Accountant from 19.01.2004 was ordered to be regularised. But it is observed that for the period prior to 01.04.2008 the petitioner will not be entitled for any arrears of salary or increment.

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The petitioner is challenging Ext.P14 order to a limited extent in this writ petition. Contention is that the 3^rd respondent is entitled to fix the punishment only in

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accordance with the provisions contained in Rule 198 of the Kerala Co-operative Societies Rules. A further contention is that the decision on the question of punishment should relate back to the order passed by the sub-committee in Ext.P3, which is on 07.11.2002. Therefore according to the petitioner, the reversion now ordered by the committee should have been imposed with effect from the date of Ext.P3 and the committee of the 3^rd respondent was erred in fixing the date of 19.1.2004 as the date of reinstatement in service.

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Before considering merits of the challenges raised in this writ petition, I may consider the contentions raised on behalf of the 3^rd respondent regarding maintainability of the writ petition. Sri. V.G.Arun, learned counsel for the 3^rd respondent had pointed out that the petitioner has got an effective remedy which is alternative in nature, as contemplated under Section 69(2)(d) of the Kerala Cooperative Societies Act. It is pointed out that any dispute arising in connection with employment of officers and

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servants of different classes of Society specified in subsection (1) of Section 80, including their promotion, inter se seniority shall be dealt with by the Co-operative Arbitration Court constituted under Section 17A of the Act. In this regard my attention is drawn to a decision of this court in Prakasini Vs. Joint Registrar (2006 (1) KLT 199) . Referring to the specific exclusion provided in the last limb of Section 69(1) that, “No other court or authority shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute”, it is held that there is a clear statutory exclusion of the authority under Rule 176 of the Kerala Co-operative Societies Rules. It is further held that there cannot be any statutory adjudication by any authority other than by the Arbitration Court or the Registrar, as the case may be, with respect to any dispute in relation to a decision on the inter se seniority between the employees, taken by the employer. The above view has been upheld in a Bench decision of this court in Raveendran Vs. State of Kerala (2007 (3) KLT 558). It is held that when the

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Legislature has conferred jurisdiction on the Arbitration Court to decide the question of seniority and promotion, any order passed by the Joint Registrar on such subjects will be without jurisdiction. It is observed that on the constitution of Co-operative Arbitration Court, every dispute pending before any authority invested with powers to dispose of the same shall be transferred to such Arbitration Court.

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Sri.P.P.Jacob, learned counsel for petitioner made a strenuous attempt to distinguish the above decisions contending that this court observed only about exclusion of the powers of Joint Registrar under Rule 176 and it will not in any manner oust the jurisdiction of this court in exercise of Article 226. According to him, the question now raised being a legal issue, it need not be insisted that the petitioner should invoke the statutory remedy, even though the same is available for redressing the grievance against Ext.P14. In this regard he has drawn my attention to a Full Bench decision of this court in John Vs. Liquidator (2006 (1) KLT 11) . The dictum laid in the Full Bench decision is

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to the effect that a writ is maintainable against a cooperative society when there is an infringement of any statutory right. But the question posed is as to whether this court is justified in interfering with the decision taken by the committee of a co-operative society, when the statute prescribes an effective statutory remedy, that too before a quasi judicial authority constituted by virtue of provisions of the statute. I am of the view that the petitioner cannot be permitted to agitate the matter before this court bypassing the effective alternative remedy.

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Under the above mentioned circumstances the writ petition is disposed of relegating the petitioner to the remedy provided under Section 69(2)(d) of the Kerala Cooperative Societies Act. Learned counsel for petitioner makes an appeal for issuing a direction to the Co-operative Arbitration Court for an early disposal of the matter. Needless to say that if the petitioner prefers any arbitration case in the matter within one month, the Co-operative Arbitration Court shall consider and dispose of the same at

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the earliest possible, at any rate within a period of six months from the date of receipt of such arbitration case.

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I make it clear that if any such dispute is preferred,

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the same shall be disposed of on merits, untrammelled by any observations contained herein above. All the contentions are left open for agitation before such authority.

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(Sd/-)

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C.K.ABDUL REHIM, JUDGE.

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okb

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True copy

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P.A to Judge

Devassia P.J. v. State of Kerala and Others

Case brief

What is this about?

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Devassia P.J. v. State of Kerala and Others

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