Partly allowed

Saralakumari P.V v. the President,Kottayam Co-Operative

Kerala HC4 Aug 2022WP(C)/25677/2010

Case brief

AI extract

What is this about?

A co-operative bank employee challenged dismissal for forgery and defalcation. The court set aside the award because the disciplinary subcommittee lacked authority to issue charges and its Chairman to impose punishment. Superannuation precluded reinstatement or fresh enquiry; salary arrears and pensionary benefits were not directed while criminal convictions remained under appeal.

What did the court decide?

Industrial Tribunal's award set aside insofar as it concerned the petitioner.

Saralakumari P.V Vs the President,Kottayam Co-Operative — Cooperative Societies | Kerala HC (2022)

¶1

W.P.(C) No. 25677/2010

¶2

: 1 :

¶3

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶4

PRESENT

¶5

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

¶6

THURSDAY, THE 4^TH DAY OF AUGUST 2022 / 13TH SRAVANA, 1944

¶7

WP(C) NO. 25677 OF 2010

¶8

AGAINST THE AWARD DATED 24.10.2009 IN 47/2006 OF INDUSTRIAL TRIBUNAL,

IDUKKI

PETITIONER/S:

SARALAKUMARI P.V

KUNNIRIKKAL HOUSE, KODATHY PADY,, KOTTAKKAL ARYA VAIDYA SALA, COLLEGE ROAD, RANNY,, PATHANAMTHITTA.

BY ADVS.

SRI.T.R.HARIKUMAR

RESPONDENT/S:

1 THE PRESIDENT, KOTTAYAM CO-OPERATIVE URBAN BANK LTD.NO.421,, HEAD OFFICE, P.B.NO.46, THIRUNAKKARA,, KOTTAYAM-686 001.

¶17

2 THE INDUSTRIAL TRIBUNAL, IDUKKI-PIN 685 602.

¶18

BY ADV SRI.SURIN GEORGE IPE

¶19

SRI.ARAVIND V MATHEW,G OVERNMENT PLEADER

¶20

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.07.2022, THE COURT ON 04.08.2022 DELIVERED THE FOLLOWING:

¶21

W.P.(C) No. 25677/2010

¶22

: 2 :

¶23

SHAJI P. CHALY, J.

¶24

--------------------------------------------------------W.P.(C). No. 25677 of 2010

¶25

--------------------------------------------------------Dated this the 4^th day of August, 2022.

¶26

JUDGMENT

¶27

The petitioner, a workman of the Kottayam Co-operative Urban

¶28

Bank Limited No. 421, has filed this writ petition seeking to set aside Ext. P9 award dated 24.10.2009 passed by the Industrial Tribunal, Idukki in I.D. No. 23 of 2006, whereby the Industrial Tribunal upheld

¶29

the enquiry conducted by the management and declined interference to the punishment of dismissal awarded by the Chairman of the Disciplinary Sub- committee constituted by the Bank.

¶30

Brief material facts for the disposal of the writ petition are as follows:

¶31

The petitioner had joined the services of the first respondent Bank as a clerk on 17.12.1976. Later, she secured promotions. While

¶32

working as a Branch Manager at the Ettumanoor Branch of the Bank, she was suspended from service with effect from 13.08.2003 on the allegation of misappropriation of funds and defalcation of accounts.

¶33

W.P.(C) No. 25677/2010 : 3 :

¶34

Along with the petitioner, a cashier and junior clerk of the Branch were also suspended. After suspension, the petitioner was issued with a memo of charges containing 80 charges. According to the petitioner, while issuing memo of charges, copies of the documents like loan ledgers, agreements, receipts, promissory notes, vouchers etc. based on which charge was framed was not made available to the petitioner.

¶35

The case of the petitioner is that after suspending her, the officers and employees of the Bank had forcibly brought her husband to the bank office and coerced him to sign stamp papers undertaking to clear the liability, if any, of the petitioner. On the basis of the complaint filed by the petitioner's husband about the incident, a crime had been registered against the officials of the Bank as Crime No. 500 of 2003 of the Kottayam West Police Station.

¶36

Anyhow, on the basis of the complaint filed by the Bank, a crime was registered against the petitioner and she was arrested and later released on bail by the court. Be that as it may, the Bank appointed an Enquiry Officer to conduct a domestic enquiry. The Enquiry Officer issued a notice to the petitioner informing her that

¶37

W.P.(C) No. 25677/2010 : 4 :

¶38

the enquiry will commence at 3 p.m., on 05.02.2004 in the Head office of the Bank.

¶39

It seems, on receipt of the notice, petitioner made a written submission before the Enquiry Officer requesting that the venue of enquiry may be shifted from the Head Office to the Paika Branch of the Bank or to some other place, since she apprehended physical assault on appearing for enquiry at the Head Office on the basis of some previous experience.

¶40

Anyhow, the Bank permitted her to collect the subsistence allowance from the Paika Branch. However, the enquiry was posted to be conducted in the Head Office. According to the petitioner, the request of the petitioner to conduct the enquiry elsewhere was not considered and the petitioner was not informed about the same. Further, as a result, the enquiry was conducted ex parte and concluded without the petitioner's participation. Anyhow, the Enquiry Officer found the petitioner guilty of the charges, except charge Nos. 6, 30, 32, 46A, 51, 61, 63, 75, 76, 78, 79 and 80. Based on the enquiry report, the petitioner was terminated from service by the

¶41

W.P.(C) No. 25677/2010 : 5 :

¶42

Chairman of the Disciplinary Sub Committee.

¶43

The dismissal of the petitioner as well as that of Smt. Sophy

¶44

Joseph, Junior Clerk from service was referred by the Government for adjudication by the Industrial Tribunal. On being served with notice in the case, the petitioner submitted a statement before the Tribunal. However, the Tribunal passed an award holding that domestic enquiry conducted is valid and proper and further held that the management had succeeded in proving the misconduct.

¶45

The case projected by the petitioner is that the award has been passed by the Tribunal without considering the contentions of the petitioner or without independently assessing the findings of the Enquiry Officer. It is, thus, challenging the legality and correctness of Ext. P9 award, the writ petition is filed.

¶46

I have heard the learned counsel for the petitioner Sri. Arjun Raghavan and the learned counsel for the first respondent Bank, Sri. Surin George Ipe, and perused the pleadings and materials on record.

¶47

The paramount contention advanced by the petitioner is

¶48

that from the sequence of events, it is evident that the petitioner was

¶49

W.P.(C) No. 25677/2010 : 6 :

¶50

never given an opportunity to deny the charges levelled against her and she was also denied an opportunity to submit her explanation to

¶51

the memo of charges by refusing to furnish copies of the records relied on in the memo of charges.

¶52

It is also contended that the petitioner was denied an opportunity to participate in the enquiry due to the stubborn stand taken by the Enquiry Officer that the enquiry would be conducted in the Head Office of the Bank, even though he is fully aware that it was impossible for the petitioner to be present at the Head Office of the Bank.

¶53

It is also submitted that after upholding the validity of the enquiry report, the Industrial Tribunal proceeded to pass Ext. P9 award without independently considering as to whether the conclusions arrived at by the Enquiry Officer was just and proper. It is also pointed out that there is not even a discussion in the award about the evidence based on which the Enquiry Officer had come to the conclusion that the majority of charges levelled against the petitioner had been proved, and therefore, in the absence of independent

¶54

W.P.(C) No. 25677/2010 : 7 :

¶55

consideration of the merits of the findings entered into by the Enquiry Officer, the award passed by the Industrial Tribunal is liable to be set aside.

¶56

Yet another contention advanced by the learned counsel is that the order of termination against the petitioner was issued by the Chairman of the Disciplinary Sub Committee and he alone had signed the same. During the course of arguments, it is also submitted that as per the provisions of Rule 198(2) r/w Rule 182(2) of the Co-operative Societies Rules (‘the Rules’ for short) and Section 2(e) of the Kerala Co-operative Societies Act, 1969 (‘Act, 1969’ for short), only the Managing Committee is vested with powers to issue memo of charges and impose punishment.

¶57

It is also pointed out that a Disciplinary Sub Committee is appointed by the Managing Committee of the society, which has got only limited powers as are conferred under Rule 198(2A) of the Rules. The sum and substance of the contention is that even though proceedings were initiated against the petitioner by the Bank, the Disciplinary Sub Committee has issued the memo of charges and the

¶58

W.P.(C) No. 25677/2010 : 8 :

¶59

Chairman of the Disciplinary Sub Committee has imposed the punishment of dismissal without any authority and sanction of law and therefore, the entire proceedings based on the charge memo is illegal and arbitrary and liable to be interfered with by this Court.

¶60

Learned counsel has also relied upon the judgment of a Division Bench of this Court in Kodenchery Service Co-operative Bank Ltd. And others v. Joshy Varghese [2020 KHC 5394 = 2020(4) KLT 129], in order to establish the point that the action initiated by the disciplinary Sub Committee and the order of dismissal passed by the Chairman of the Sub Committee is bad and illegal.

¶61

I have gone through the pleadings and the documents produced by the petitioner. It is evident from Ext. P2 that the notice issued by the President (Cum Chairperson of the Sub Committee) of the Bank, that the Chairman of the Disciplinary Subcommittee has issued a notice initiating the enquiry proceedings and sought for explanation from the petitioner. Even though a reply has been submitted by the petitioner, the same was not accepted and consequent to the same, the Sub Committee has decided to conduct a

¶62

W.P.(C) No. 25677/2010 : 9 :

¶63

domestic enquiry against the petitioner. The Enquiry Officer has issued notice to the petitioner and others to appear for the domestic enquiry. However, she has sought for the change of venue to conduct the enquiry. But, the Enquiry Officer decided to conduct the enquiry in the Head Office of the Bank itself.

¶64

To put it short, the petitioner did not participate in the enquiry, consequent to which the Enquiry Officer conducted the domestic enquiry ex parte against the petitioner. It is relevant to note that other two employees of the Bank participated in the enquiry. Ext. P6 is the enquiry report. From the enquiry report, what I could gather is that after taking note of the documents produced by the Bank with respect to the defalcation of the accounts and forgery, the Enquiry Officer has arrived at the conclusion that the management has established charges except the one mentioned above.

¶65

The Tribunal, after taking into account the facts and figures and analyzing the enquiry report, has arrived at the conclusion that the enquiry is conducted by giving an opportunity to the petitioner, though not availed by the petitioner, and others and therefore, there

¶66

W.P.(C) No. 25677/2010 : 10 :

¶67

is no requirement for interfering with the enquiry proceedings. It was also found that the management has succeeded in proving misconduct to the extent the Enquiry Officer has held to have been proved. The Tribunal has also found that the misconduct of forgery and defalcation of accounts running to several lakhs proved against the workman are very grave and serious and the punishment of dismissal awarded to them are proportionate to the misconduct proved against them and accordingly, it is held that the workman is not eligible for any reliefs.

¶68

Going by the materials on record, that is, the enquiry report and the award of the Industrial Tribunal, I am of the considered opinion that no materials are produced by the petitioner to interfere with the award passed by the Industrial Tribunal, upholding the enquiry, since the findings are based on clinching evidence and substantial materials on record marked by the Enquiry Officer. However, the question of law raised by the petitioner with respect to the power of the Disciplinary Sub Committee to issue a charge memo and the imposition of punishment, requires an in-depth consideration.

¶69

W.P.(C) No. 25677/2010

¶70

: 11 :

¶71

Rule 198 of the Act 1969 deals with disciplinary action. Sub-Rule (1) thereto prescribes that any member of the establishment

¶72

of a Co-operative Society may, for good and sufficient reasons, be punished by imposing the penalties prescribed thereunder, starting from censure to dismissal from service.

¶73

Sub-Rule (2) of Rule 198 prescribes that no kind of punishment shall be awarded to an employee, unless he has been informed in writing of the grounds on which it is proposed to take action against and he has been afforded an opportunity, including a personal hearing to defend himself. It further prescribes that every order awarding punishment shall be communicated to the employee concerned in writing stating the grounds on which the punishment has been awarded.

¶74

Sub-Rule (2A) of Rule 198 of the Rules prescribes that the committee of a society shall constitute a disciplinary Sub Committee consisting of not more than three of its members of whom one shall be designated as Chairman, but the President of the Committee of the society shall not be a member in the Disciplinary Sub Committee.

¶75

W.P.(C) No. 25677/2010 : 12 :

¶76

Sub-Rule (2B) indicates that the Disciplinary Sub Committee so constituted shall inquire into the charges levelled

¶77

against the petitioner either by themselves or by engaging an external agency. Chapter XV of the Rules deals with ‘classification of the societies prescribed in Section 80(1) of the Act, 1969. Sub-Rule 2 of Rules 182 specifies that the committee shall be the authority competent to appoint employees in Co-operative society.

¶78

Section 2(e) of the Act, 1969 defines the term 'committee' to mean the governing body of a co-operative society by whatever name

¶79

called to which the management of the affairs of the society is entrusted.

¶80

Therefore, on an analysis of Rule 182(2) of the Rules, it is clear that the committee of the Bank is the competent authority to appoint employees in a Co-operative Bank. But, it is significant to note that, as per Rule 198(2A), the committee of a society is vested with the powers to constitute a disciplinary sub Committee consisting of not more than 3 of its members of whom one shall be designated as the Chairman. But, the President of the Committee of the society shall

¶81

W.P.(C) No. 25677/2010 : 13 :

¶82

not be a member in the Disciplinary Subcommittee.

¶83

The Disciplinary Sub Committee is conferred with the

¶84

power under sub-Rule (2B) of the Rule 198, only to enquiry into the charges levelled against an employee either by themselves or by engaging an external agency.

¶85

Therefore, the contention advanced by the learned counsel for the petitioner Sri. Arjun Raghavan is that going by the provisions, it is clear that a charge memo is to be issued by the Committee of the society in contemplation of the provisions of the Act, 1969 and the Rules thereto.

¶86

That apart, it is contended that in the instant case, the entire action was initiated by the Disciplinary Sub Commitee or its Chairman and the punishment was also imposed by the Chairman evident from Ext.P7 termination order dated 19.07.2004 passed by the Chairman.

¶87

Yet another aspect is that even though there is a clear prohibition under sub-Rule (2A) of the Rule 198 of the Rules, that the President of the Committee of the society shall not be a member in the Disciplinary Sub Commitee, the President was the Chairperson of the

¶88

W.P.(C) No. 25677/2010 : 14 :

¶89

Sub Committee constituted.

¶90

The question so discussed above was considered by a Division Bench of this Court in Kodenchery Service Co-operative Bank Ltd. (supra) and held that the committee of the society is the authority competent to appoint employees in a co-operative society and it alone is vested with the power to inform the delinquent employee in writing of the grounds on which it is proposed to conduct action against him/her.

¶91

Learned counsel for the first respondent Bank submitted that the petitioner has not taken any contention before the Industrial Tribunal and therefore, she is not entitled to get the benefit of the said judgment in Kodenchery Service Co-operative Bank Ltd. (supra) to interfere with the enquiry proceedings in the award passed by the Tribunal.

¶92

On a perusal of Ext. P8 statement filed by the petitioner before the Industrial Tribunal, it is clear that this question was raised by the petitioner in the following manner that “the proceedings adopted by the management in dismissing the worker is illegal. The president of

¶93

W.P.(C) No. 25677/2010 : 15 :

¶94

the management Bank in his capacity as the Chairman of the Sub Committee (disciplinary proceedings) has no authority or power to order dismissal. The very constitution of the Sub Committee (disciplinary proceedings) is ultra vires of the rules and regulations in that regard.”

¶95

That apart, the question as to whether the same could be raised for the first time in a writ petition was also considered by a Division Bench of this Court in Kodenchery Service Co-operative Bank Ltd. and held that since it being a pure question of law, there is no inhibition at all to raise it before the writ court for the first time and the writ court to consider the same. In that context, it is profitable to extract the relevant portion of the judgment of the Division Bench in Kodenchery Service Co-operative Bank, (supra) and the same reads thus:

¶96

“5. For a proper answering of the aforesaid questions it is only appropriate to refer to S.2(e) of the KCS Act and Rule 182(2) of the KCS Rules. S.2(e) of the KCS Act reads thus:

¶97

“2(e) “committee” means the governing body of a cooperative society by whatever name called, to which the management of the affairs of the society is entrusted.” Rule 182(2) of the KCS Rules reads thus:-

¶98

“182.(2) The Committee shall be the authority competent to

¶99

W.P.(C) No. 25677/2010

¶100

: 16 :

¶101

appoint employees in a Co-operative Society.” (underline supplied)

¶102

It is thus evident that the appointing authority of an employee in a Co-operative Society is the committee of the Society concerned elected for the management of the affairs of the society, as defined under S.2(e) of the KCS Act. Rules 198(2), 198(2A) and (2B) are also relevant in the contextual situation and they read thus:-

¶103

“198(2) No kind of punishment shall be awarded to an employee unless he has been informed in writing of the grounds on which it is proposed to take action against and he has been afforded an opportunity including a personal hearing to defend himself. Every order awarding punishment shall be communicated to the employee concerned in writing stating the grounds on which the punishment has been awarded.

¶104

(2A) The committee of a society shall constitute a disciplinary sub-committee consisting of not more than three of its members, of whom one shall be designated as Chairman, but the President of the committee of the society shall not be a member in the disciplinary sub- committee.

¶105

(2B) The disciplinary sub-committee so constituted shall inquire into the charges against the employee either by themselves or by engaging an external agency.” (emphasis added)

¶106

Rule 198(2) of KCS Rules mandates that no kind of punishment shall be awarded to an employee unless he has been informed in writing of the grounds on which it is proposed to take action against and he has been afforded an opportunity including a personal hearing to defend himself. Going by Rule 198(2A)

¶107

W.P.(C) No. 25677/2010

¶108

: 17 :

¶109

evidently, the power to constitute a disciplinary sub-committee, consisting of not more than three of its members, of whom one shall be designated as Chairman, vests with the ‘committee of the society’. Rule 198(2B) of the KCS Rules provides that the disciplinary committee so constituted under Rule (2A) shall inquire into the charges against the employee, either by themselves or by engaging an external agency. Before proceeding further it is only appropriate to consider the meaning of the words ‘charge’ and ‘chargesheet’. Charge means any specific act/acts, omission/omissions alleged to have committed by an employee and ‘chargesheet’ is a memorandum of charges which carry allegations of acts or omissions alleged to have been committed by him. In other words, it is one which carries allegations of misconduct, misbehaviour, indiscipline, negligence etc. The very objective of issuance of memo of charges is to inform the delinquent employee what he is supposed to defend or what he is alleged to have done. Thus, a conjoint reading of S.2(e) of the KCS Act and Rules 182(2) and 198(2) of the KCS Rules the committee of the society concerned which is the authority competent to appoint employees in a Co-operative Society, is bound to inform the delinquent employee in writing, of the grounds on which it is proposed to take action against him/her. At this juncture, it is only worthwhile to refer to the decisions of the Hon’ble Apex Court in Union of India v. K.V.Jankiraman (1991 (2) KLT

¶110

W.P.(C) No. 25677/2010

¶111

: 18 :

¶112

OnLine 1024 (SC) = AIR 1991 SC 2010), Union of India & Ors. v. Anil Kumar Sarkar (2013 (2) KLT SN 29 (C.No.33) SC = (2013) 4 SCC 161) and in Government of Andhra Pradesh v. Gandhi (2013 (1) KLT SN 121 (C.No.106) SC). In Jankiraman’s case (supra) the Apex Court held that disciplinary proceedings can be said to be commenced only when memorandum of charges is laid. Same view was taken in Anil Kumar Sarkar’s case (supra) wherein it was held that departmental proceedings commence only when charge sheet is issued to the delinquent employee. In Gandhi’s case (supra) the Apex Court held that decision to initiate disciplinary proceedings could not be subsequent to the issuance of charge sheet. If we analyse the provision under Rule 198(2A) and (2B) of the KCS Rules in the light of the decisions in Jankiraman’s case, Anil Kumar Sarkar’s case and Gandhi’s case (supra) and the indisputable and unambiguous position from Rule 198(2B) that it only mandates that the disciplinary sub-committee constituted by the Managing Committee of a society concerned shall inquire into the charges against employee concerned either by themselves or by engaging an external agency the scope of the provision under Rule 198(2B) would be revealed. It would reveal that the provision under Rule 198(2A) only mandates the committee of a society, which is the appointing authority of its employees, to constitute a disciplinary subcommittee and the provision under Rule 198(2B) empowers the disciplinary sub-committee so

¶113

W.P.(C) No. 25677/2010

¶114

: 19 :

¶115

constituted, statutorily, only to inquire into the charges against the employee, either by themselves or by engaging an external agency. The constitution of a disciplinary subcommittee presupposes two things viz., a decision has been taken to initiate disciplinary proceedings against an employee or employees in respect of a misconduct and secondly, in pursuance of the said decision a memorandum of charges has been framed and issued. We are holding thus, as in view of the decision in Gandhi’s case (supra) decision to initiate disciplinary proceedings cannot be subsequent to issuance of charge sheet and in view of the decision in Janakiraman’s case (supra) and Anil Kumar Sarkar’s case (supra) disciplinary proceedings commence only when charge sheet is issued to the delinquent employee. When the statute empowers under Rule 198(2B) of the KCS Rules only to inquire into the charges against an employee, either by themselves or by engaging an external agency if prior to the constitution of the disciplinary sub-committee charges are not framed what would be there for the disciplinary sub-committee to inquire into. In other words, when the very purpose of constituting a disciplinary sub-committee is to inquire into charges against the employee concerned and at the same time Rule 198(2B) does not specifically empowers the said disciplinary sub-committee to frame definite charges against an employee of a society, according to us, a different construction of the said provision is not permissible in the light of the

¶116

W.P.(C) No. 25677/2010

¶117

: 20 :

¶118

aforesaid decisions. In this situation it pertinent to refer to the decisions of the Hon’ble Apex Court in Bhavnagar University v. Palitana Sugar Mill (P) Ltd. & Ors. reported in (2003 (1) KLT OnLine 1111 (SC) = (2003) 2 SCC 111) and in Union of India & Ors. v. B.V.Gopinath reported in (2013 (4) KLT Suppl. 38 (SC) = (2014) 1 SCC 351). In Bhavnagar University’s case (supra) the Apex Court held that the charge memo drawn by an officer other than the specified authority would be wholly without jurisdiction and hence, would vitiate the whole disciplinary enquiry and that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. Further, it was held therein that the State and other authorities while acting under the statute are only creature of statute and therefore, they must act within the four corners thereof. In B.V.Gopinath’s case (supra) the Apex Court was dealing with disciplinary proceedings initiated under the Central Civil Services (Classification, Control and Appeal) Rules 1965. Going by the provisions thereunder to hold an enquiry against a Government servant either under Rule 14 or 16 the disciplinary authority shall draw or cause to draw the chargesheet. Ultimately the Apex Court held that charge memo drawn by an officer other than the specified authority is wholly without jurisdiction and therefore, it would vitiate the whole disciplinary inquiry conducted against the employee concerned. In the case on hand, admittedly, Ext.P1 memo of charges was

¶119

W.P.(C) No. 25677/2010

¶120

: 21 :

¶121

issued and it was framed and issued by the Chairman of the disciplinary sub-committee constituted for conducting disciplinary proceedings against the first respondent herein.

¶122

Before the writ Court the appellants herein who were respondents 1 to 3 therein, jointly filed a counter affidavit. It is stated therein that the Committee of the Bank constituted the disciplinary subcommittee to conduct inquiry against the first respondent herein/the writ petitioner and the sub-committee thereafter, appointed an independent enquiry officer to conduct inquiry against the first respondent. The fact that Ext.P1 memo of charges was issued by the Chairman of the disciplinary subcommittee is stated therein and the said fact is discernible from Ext.P1 itself. In the light of our conclusions and findings based on the aforesaid provisions, the decisions referred supra and the aforesaid factual position, we have no hesitation to hold that the learned Single Judge was perfectly right in holding that Ext.P1 charge memo issued by the Chairman of the disciplinary subcommittee was legally invalid and in such circumstances, the whole enquiry proceedings conducted even on ratification by Managing Committee of the framing of charge subsequently, could not validate the proceedings conducted against the first respondent.

¶123

Obviously, the learned Single Judge has also held that the participation of the employee in the enquiry proceedings or his failure to raise any objection in regard to the authority of the

¶124

W.P.(C) No. 25677/2010

¶125

: 22 :

¶126

disciplinary sub-committee to frame and issue charge memo could not confer an authority on the disciplinary sub-committee to issue memo of charges. When the framing and issuance of charge memo itself is wholly invalid the failure on the part of the first respondent in raising objection against it or his participation in the disciplinary proceedings are all inconsequential and such action/omission could not validate the proceedings based on the said charge memo. We find no reason to interfere with the said finding as well. In other words, in such circumstances, the entire disciplinary proceedings conducted based on Ext.P1 has to be held as vitiated.

¶127

The next question is whether the liberty granted by the learned Single Judge to the Managing Committee to take action against the petitioner in accordance with law requires interference. While considering the said question it is relevant to note that the interference with the charge memo and the disciplinary proceedings, was based on the sole reason that Ext.P1 memo of charges was issued by an incompetent authority. When once, on the aforesaid grounds, the memo of charges is set aside solely on that ground it was only just and proper to leave liberty to the disciplinary authority to take action in accordance with law. Above all, the first respondent did not challenge the judgment dated 21.11.2019. As relates the appellants, it is in fact, not at all adverse to them.

¶128

W.P.(C) No. 25677/2010

¶129

: 23 :

¶130

The further question to be considered is whether the direction of the learned Single Judge in the matter of reinstatement of the first respondent in case of failure to initiate de novo disciplinary proceedings within the period stipulated thereunder or to pay full salary during the period of disciplinary proceedings in case of initiation of disciplinary proceedings, warrants interference. In that context, it is relevant to refer to Rule 198(6) of the KCS Rules which provides thus:-

¶131

“198(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 continuous 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)].

¶132

[Provided that an employee not coming under the purview of the Kerala Payment of Subsistence Allowance Act, 1972 (27 of 1973) shall be entitled to subsistence allowance at the rate admissible to State Government Employees as prescribed under the Kerala Service Rules]”.

¶133

A scanning of the said provision would reveal that only an authority competent to appoint an employee could suspend the employee pending enquiry into serious charges against him and the authority competent to appoint an employee could suspend and at any rate, no employee could be kept under suspension for

¶134

W.P.(C) No. 25677/2010

¶135

: 24 :

¶136

a continuous period exceeding one year without the prior approval of the Registrar. Here, the suspension order was issued by competent authority. However, it is an indisputable position that keeping an employee under suspension for a continuous period exceeding one year is possible and permissible only if a prior permission is granted by the Registrar for doing so. In other words, keeping an employee under suspension for a continuous period exceeding one year could not be validated by a ratification of that action subsequently by the Registrar as statutorily it is possible only if prior approval therefor was granted by the Registrar. In the case on hand, the employee was suspended from service with effect from 16.6.2017. When once the charge memo is set aside by this Court the position is that there is no memo of charges available for continuation with the disciplinary proceedings. Needless to say that, in such circumstances, even if the appellants are proposing to initiate disciplinary proceedings that is possible only after the framing and serving charge memo on the writ petitioner by the competent authority. Since there is no case for the appellants that the writ petitioner was kept under suspension for more than one year with prior approval of the Registrar, that apart, taking note of the fact that the writ petitioner was suspended from service on 16.6.2017 and the memo of charges issued by an incompetent authority was set aside as per the judgment dated 21.11.2019 it is only just and proper and legal to reinstate the writ petitioner in service either

¶137

W.P.(C) No. 25677/2010 : 25 :

¶138

in the event of non-initiation of disciplinary proceedings or failure to conclude the proceedings within the period of three months.

¶139

We do not find any reason for interfering with the said direction as well. In short, the impugned judgment does not invite any interference. Consequently, the appeal is dismissed.”

¶140

On an analysis of the said Judgment, it could be clearly deduced that there is force in the contentions raised by the petitioner with regard to the illegal initiation of the disciplinary proceedings and the imposition of punishment by the disciplinary sub committee. In that view of the matter, taking into account the legal position as per the provisions of the Act and the Rules and the judgment rendered by this Court, I am of the considered opinion that the petitioner is entitled to succeed on the ground that the Disciplinary Sub Committee did not have the power to issue charge memo, and the Chairman of the Disciplinary Sub committee did not have the power to impose punishment on the petitioner.

¶141

Even though I concur with the findings rendered by the Industrial Tribunal that the workman has committed forgery and

¶142

W.P.(C) No. 25677/2010 : 26 :

¶143

defalcation of the accounts of the Bank, in view of the illegal and unauthorised proceedings initiated by the Disciplinary Sub Commitee against the workman, interference is required to the impugned award passed by the Tribunal. Accordingly, I set aside Ext. P9 award dated 24.10.2009 passed by the Industrial Tribunal, Idukki against the petitioner in I.D.No. 47 of 2006. But, at the same time, there is no scope for directing the Bank to conduct a de novo enquiry in accordance with law, due to the fact that the petitioner has already superannuated from service; and therefore, no reinstatement can also be ordered.

¶144

However the Bank, in that context, should have been directed to pay back wages to the petitioner. But, fact remains, on the very same aspect the Bank has initiated criminal proceedings and crimes were registered against the petitioner, which finally culminated in C.C. Nos. 30, 38 and 44 of 2009 on the files of the Enquiry Commissioner and Special Judge, Kottayam. The petitioner was the first accused in those cases. The petitioner along with the former cashier were found guilty of the offence punishable under Section

¶145

W.P.(C) No. 25677/2010 : 27 :

¶146

13(2) r/w Section 13(1)(c) and (d) of the Prevention of Corruption Act and Sections 409, 477A, 120B and Section 465 IPC or in the alternative under Section 471 IPC etc. and they were convicted and sentenced to undergo imprisonment on various counts and the same were directed to be run concurrently.

¶147

The said aspect is clear from the copy of the judgments of the Special Judge produced before me by the learned counsel appearing for the first respondent Bank at the time of hearing and concurred by the learned counsel for the petitioner. However, the learned counsel for the petitioner submitted that appeals filed by the petitioner and another are pending consideration before this Court as Crl. Appeal Nos. 1029, 1206 and 1148 of 2010 and 303 and 304 of 2011.

¶148

In that view of the matter, since loss has been caused to the Bank and since the petitioner has been convicted in the cases referred to above and appeals are pending before this Court, the Bank cannot be directed to disburse the arrears of salary or pensionary benefits to the petitioner as of now, especially due to the fact that Rule 198(7) of

¶149

W.P.(C) No. 25677/2010 : 28 :

¶150

the Rules specifies that in the event of any pendency of disciplinary proceedings against any employee of a co-operative society or any cooperative institution pursuant to any charge of grave misconduct, irregularity, corruption or other charge involving moral turpitude, no retirement benefits shall be sanctioned to such employee or retired employee etc.

¶151

Writ Petition is allowed to the extent specified above.

¶152

sd/- SHAJI P. CHALY, JUDGE.

¶153

¶154

W.P.(C) No. 25677/2010 : 29 :

¶155

APPENDIX OF WP(C) 25677/2010

¶156

PETITIONER'S EXHIBITS:

¶157

EXHIBIT P1	A COPY OF THE REQUEST MADE BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 13/01/2004.
EXHIBIT P2	COPY OF THE NOTICE DATED 23/01/2004.
EXHIBIT P3	COPY OF THE NOTICE DATED 24/01/2004.
EXHIBIT P4	COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE ENQUIRY OFFICER DATED 03/02/2004.
EXHIBIT P5	COPY OF THE LETTER DATED 20/01/2004 ISSUED BY THE BANK TO THE PETITIONER.
EXHIBIT P6	COPY OF THE ENQUIRY REPORT DATED 10/07/2004.
EXHIBIT P7	COPY OF THE TERMINATION ORDER DATED 19/07/2004.
EXHIBIT P8	COPY OF THE STATEMENT FILED BY THE PETITIONER BEFORE THE INDUSTRIAL TRIBUNAL DATED 26/02/2007.
EXHIBIT P9	CERTIFIED COPY OF THE AWARD IN I.D. NO.47/2006 OF THE INDUSTRIAL TRIBUNAL, IDUKKI DATED 24/10/2009.

¶158

RESPONDENTS' EXHIBITS: NIL

¶159

/True Copy

¶160

PS To Judge.

¶161

Saralakumari P.V v. the President,Kottayam Co-Operative

Case brief

What is this about?

What did the court decide?

Saralakumari P.V v. the President,Kottayam Co-Operative

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

P.J. Ulahanan Vs Siby J. Joseph

T P Rajan Vs Hindustan Petroleum Corporation Limited

P.K. Velayudhan Vs the District Collector, Ernakulam

K.Balakrishnan Nair Vs P.K.Vinodkumar

N.S.Mani Vs Sulthan Bathery Municipality

M.v.Balakrishnan Vs Kanhangad Muncipality