Allowed

P.S.Babu Raj v. Alappey Co-Operative Spinning Mills Ltd.

Kerala HC29 Nov 2012WP(C)/18786/2012

Case brief

AI extract

What is this about?

The Court quashed an order directing reinstatement of a suspended employee passed by the Director of Handlooms. The Court held the Director acted under a misapprehension of law regarding suspension limits, ignored the co-operative society's valid extension notice, and wrongly bypassed the statutory remedy of the Arbitration Court.

What did the court decide?

Ext. P4 order is quashed. Proceedings under completed suspension are to remain valid pending enquiry.

P.S.Babu Raj Vs Alappey Co-Operative Spinning Mills Ltd. — Service and Employment | Kerala HC (2012)

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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 HARUN-UL-RASHID

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THURSDAY, THE 29TH DAY OF NOVEMBER 2012/8TH AGRAHAYANA 1934

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WP(C).No. 18786 of 2012 (W)

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PETITIONER(S):

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P.S. BABU RAJ, CHAIRMAN, ALAPPEY CO-OPERATIVE SPINNING MILS LTD., KAREELAKULANGARA P.O., ALAPPUZHA DISTRICT.

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BY ADVS. SRI.P.V.BABY, SRI.A.N.SANTHOSH.

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RESPONDENT(S):

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1. ALAPPEY CO-OPERATIVE SPINNING MILLS LTD., KAREELAKULANGARA P.O., KAYAMKULAM,

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ALAPPUZHA DISTRICT, PIN-690 572, REPRESENTED BY ITS GENERAL MANAGER.

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2. R.CHELLAMMAL,

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ACCOUNTS OFFICER UNDER SUSPENSION, ALLAPPEY CO-OPERATIVE SPINNING MILLS LTD, RESIDING AT SREEVALSAM, P.O. ERUVA,

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KAYAMKULAM, ALAPPUZHA DISTRICT-690 564.

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3. HANDLOOMS AND TEXTILES DIRECTOR,

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OFFICE OF THE HANDLOOM AND TEXTILES DIRECTORATE,

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VIKAS BHAVAN, THIRUVANANTHAPURAM-695 001.

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R1 BY ADV. MR.K. ANAND. R2 BY ADV. SRI.R.RAMADAS R3 BY GOVT. PLEADER MR.NOUSHAD THOTTATHIL.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 18786 of 2012 (W)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1:-	A TRUE PHOTOSTAT COPY OF THE ORDER DTD. 19/05/2012 APPOINTING ENQUIRY OFFICER.
EXT.P2:-	A TRUE PHOTOSTAT COPY OF THE AGENDA NO.13 DTD. 07/05/2012 OF THE 1ST RESPONDENT.
EXT.P3:-	A PHOTOSTAT OF THE SUSPENSION ORDER DTD. 06/01/2012.
EXT.P4:-	A TRUE PHOTOSTAT COPY OF THE ORDER DTD. 16/07/2012 ISSUED BY THE 3RD RESPONDENT.
EXT.P5:-	COPY OF THE CHARGE SHEET DATED 06/01/2012.
EXT.P6	COPY OF THE REQUEST DATED 06/01/2012 SUBMITTED BY THE 2ND RESPONDENT.,
EXT.P7	COPY OF THE REPRESENTATION DATED 23/07/2012 SUBMITTED BY THE 2ND RESPONDENT TO THE PETITIONER ENCLOSING A COPY OF THE REPRESENTATION DATED 23/07/2012 SUBMITTED TO THE DOMESTIC ENQUIRY OFFICER.
EXT.P8	COPY OF THE PROCEEDINGS OF THE DOMESTIC ENQUIRY FROM 14/06/2012 UPTO 24/09/2012.
EXT.P9	COPY OF THE REPRESENTATION DATED 11/08/2012.

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RESPONDENT'S EXHIBITS:-

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EXT.R2A	COPY OF THE SHOW CAUSE NOTICE DATED 03/01/2012 FROM THE GENERAL MANAGER TO THE 2ND RESPONDENT.
EXT.R2B	COPY OF THE REPLY DATED 06/01/2012 SUBMITTED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.
EXT.R2C	COPY OF THE ORDER DATED 08/03/2012 PASSED BY THIS HONOURABLE COURT IN W.P.(C)NO. 5203/2012.
EXT.R2D	COPY OF THE LETTER DATED 06/06/2012 FROM ADV.SRI.S. GOPAKUMAR.

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(P.T.O.)

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WP(C).No. 18786 of 2012 (W)

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EXT.R2E	COPY OF THE OBJECTION DATED 11/06/2012.
EXT.R2F	COPY OF THE MEMO OF CHARGS DATED 14/06/2012.
EXT.R2G	COPY OF THE SHOW CAUSE NOTICE DATED 18/06/2012.
EXT.R2H	COPY OF THE OBJECTION DATED 23/06/2012.
EXT.R2I	COPY OF THE REPRESENTATION DATED 03/03/2012.
EXT.R2J	COPY OF THE DETAILED STATEMENT DATED 02/05/2012.
EXT.R2K	COPY OF THE ENQUIRY REPORT SUBMITTED BY THE DEPUTY REGISTRAR OF HANDLOOM AND TEXTILE DIRECTORATE.
EXT.R2L	COPY OF THE LETTER DATED 11/09/2012 ISSUED BY THE PUBLIC INFORMATION OFFICER.
EXT.R2M	COPY OF THE ORDER NO.ACSM/7636/08, DATED 03/01/2009 ISSUED BY MANAGING DIRECTOR, TEX FED.
EXT.R2N	COPY OF THE RECEIPT DATED 16/11/2011 ISSUED BY M/S.CHERIYIL TRADERS.
EXT.R2O	COPY OF THE STATEMENT DATED 18/05/2012 ISSUED BY SRI.NAGARAJAN, BUSINESS DEVELOPMENT OFFICER TO THE DEPUTY REGISTRAR/ASSISTANT REGISTRAR.
EXT.R2P	COPY OF THE LETTER NO.ACSM/2137/2012 DATED 10/05/2012 ISSUED BY THE GENERAL MANAGER OF THE 1ST RESPONDENT TO THE 2ND RESPONDENT.
EXT.R3A	COPY OF THE REPORT.
EXT.R3B	COPY OF THE WRITTEN STATEMENT FROM THE SUPPLIER.

//TRUE COPY//

P.A. TO JUDGE

rs.

HARUN-UL-RASHID,J.

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W.P.(C).NO. 18786 OF 2012

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DATED THIS THE 29TH DAY OF NOVEMBER, 2012

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JUDGMENT

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The writ petition is filed seeking to quash Ext. P4 and for a direction restraining the 3^rd respondent from interfering in any manner with the domestic enquiry being conducted against the 2^nd respondent by the Society.

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The petitioner is the president of the 1^st respondent Society. The 2^nd respondent is an employee of the 1^st respondent Society. The allegation levelled against the 2^nd respondent is that while she was working as Accounts Officer in the 1^st respondent Society, disciplinary proceedings was initiated against her for gross misappropriation and dereliction of duties and she was suspended from service with effect from 07.01.2012 for a period of six months, pending disciplinary proceedings. Ext. P3 is the copy of the suspension order dated 06.01.2012. Subsequently, after issuing show cause notice, the society has decided to frame charges against her and to conduct a domestic enquiry. A practicing advocate was appointed as the domestic enquiry

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W.P.(C).No.18786/2012

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officer.

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It is submitted that as per Rule 198 of the Kerala

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Co-operative Societies Rules, suspension at a stretch will be valid for six months initially and if the enquiry proceedings is not completed within that time, the period of suspension can be extended for a further period of six months. The Rule further stipulates that for continuation of the period of suspension for a period beyond twelve months, prior permission of the Registrar of Co-operative Societies is necessary. Before the completion of the suspension period, the Committee passed resolution on 07.05.2012 to extend the period of suspension for a further period of six months. Ext P2 is the copy of the said resolution.

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While so, the 2^nd respondent preferred a complaint before the 3^rd respondent alleging that she is kept out of service under suspension without any authority. The 2^nd respondent challenged the suspension order and enquiry proceedings and filed complaint before the 3^rd respondent. The 3^rd respondent passed Ext. P4 order by which the petitioner was directed to re-instate the 2^nd

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W.P.(C).No.18786/2012

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respondent in service for the reason that the suspension of six months is without any authority.

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Ext. P4 order is dated 16.07.2012. Long before Ext. P4 order, the period of suspension for six months was extended by a further period of six months. Without noticing the said fact the extension of suspension for a further period of six months and wrongly referring to the Rule, the 3^rd respondent passed Ext. P4 order stating that Rule 198(6) provides only suspension of an employee for a period of six months only. On that basis, the 3^rd respondent directed the petitioner to re-instate the 2^nd respondent. Rule 198(6) reads as follows:-

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“(6) An authority competent to appoint an employee may suspend him pending enquiry into serious charges against such employee. No employee shall however be kept under suspension for a period exceeding six months at a time. In no case an employee shall be kept under suspension for a continuance period exceeding one year without the prior approval of the Registrar. An employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972.(27 of 1973).”

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-4-

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W.P.(C).No.18786/2012

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Ext. P4 order was proceeded under the wrong impression that an employee can be suspended only for a period of six months. None of the questions raised by the 2^nd respondent as to the competence, maintainability and other contentions have been considered by the 3^rd respondent. Instead, the 3^rd respondent passed Ext. P4 order directing to re-instate the 2^nd respondent. It is also to be noted that the remedy of a person, who is under suspension, is to approach the Arbitration Court as provided u/s. 69(1)(h) and 69(2) Explanation, (d). The 2^nd respondent, without availing the statutory remedy available to her, approached the 3^rd respondent with a complaint and Ext. P4 order was happened to be passed by the 3^rd respondent. In this circumstance, Ext. P4 direction issued by the 3^rd respondent to re-instate the 2^nd respondent cannot stand.

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Therefore Ext. P4 order is quashed. There will be a direction to the 1^st respondent to conclude the enquiry, as expeditiously as possible, at any rate, within a period of three months, from the date of receipt of copy of this judgment. The

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W.P.(C).No.18786/2012

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learned counsel for the 2^nd respondent submits that he is ready and willing to co-operate with the enquiry proceedings. All the contentions raised by the 2^nd respondent regarding the legality of the suspension order and disciplinary proceedings are left open to be decided before the appropriate forum.

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The writ petition is disposed of as above.

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sd/- HARUN-UL-RASHID, JUDGE.

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DCS

P.S.Babu Raj v. Alappey Co-Operative Spinning Mills Ltd.

Case brief

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P.S.Babu Raj v. Alappey Co-Operative Spinning Mills Ltd.

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