Kerala High Court
M.Radhakrishnan vs A.C.Jailavudeen Manchira House on 1 February, 2010
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
&
THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY, THE 29TH DAY OF JANUARY 2013/9TH MAGHA 1934
WA.No. 925 of 2010 ( ) IN RP.782/2009
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AGAINST ORDER IN RP.782/2009 of HIGH COURT OF KERALA DATED 01-02-2010
AGAINST THE JUDGMENT IN WP(C).25006/2008 of HIGH COURT OF KERALA
DATED 19-11-2008
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APPELLANTS/RESPONDENT NOS. 3 TO 5:
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1. M.RADHAKRISHNAN , CONVENER, DEISCIPLINARY
SUB COMMITTEE,MUTHALAMADA (WEST)
KSHEERA VYAVASAYA SAHAKARANA SANGAM LTD,NO.P3(D)
NANDANKIZHAYA,ANAMARI POST,KOLLENGODE - 678 506.
2. PRESIDENT, MUTHALAMADA (WEST)
KSHEERA VYAVASAYA SAHAKARANA SANGAM LTD,NO.P3(D)
NANDANKIZHAYA,ANAMARI POST,KOLLENGODE - 678 506.
3. MUTHALAMADA (WEST) KSHEERA VYAVASAYA
SAHAKARANA SANGAM LTD NO.P3(D),NANDANKIZHAYA
ANAMARI POST,KOLLENGODE - 678 506.
REPRESENTED BY ITS SECRETARY,RAJAN.R.,AGED 45 YEARS
S/O.RAMANKUTTY.
BY ADVS.SRI.H.B.SHENOY
SRI.B.ASHOK SHENOY
SMT.LAKSHMI B.SHENOY
SRI.K.RAMAKUMAR (SR.)
RESPONDENTS/PETITIONER & RESPONDENT NOS. 1 TO 2:
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1. A.C.JAILAVUDEEN MANCHIRA HOUSE,
ANAMARI P.O.,KALLAMKODE,PALAKKAD - 678 506.
2. STATE OF KERALA REPRESENTED BY
SECRETARY TO GOVERNMENT
AGRICULTURE (DIARY) DEPARTMENT
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM.
3. THE DEPUTY DIRECTOR OF DAIRY
DEVELOPMENT,OFFICE OF THE DEPUTY DIRECTOR OF
DAIRY DEVELOPMENT,CIVIL STATION,PALAKKAD.
R BY SRI.N.RAGHURAJ
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29-01-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sd/-
S.SIRI JAGAN & K.HARILAL, JJ
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W.A. No. 925 OF 2010
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Dated this the 29th day of January, 2013.
J U D G M E N T
S.Siri Jagan, J.
The respondents 3 to 5 in W.P.(C) No.25006/2008 have filed this writ appeal challenging the judgment of the learned Single Judge in that writ petition. The appellants initiated disciplinary proceedings against the 1st respondent herein on certain allegations of misconduct. The punishment of dismissal was imposed on the 1st respondent in those proceedings. The 1st respondent filed an application under Rule 176 of the Kerala Co- Operative Societies Rules, before the 3rd respondent herein. The 3rd respondent entertained the application but dismissed the same on merits by Ext.P4 order. The 1st respondent filed an appeal against that order under Section 83(2) of the Kerala Co-Operative Societies Act before the 2nd respondent herein. The 2nd respondent also entertained the same and dismissed the same on merits by Ext.P6 order. The 1st respondent filed the writ petition W.A. No. 925 of 2010 2 challenging Exts.P4 and P6 orders, judgment in which is under challenge in this writ appeal. The learned Single Judge considered the validity of the enquiry conducted and found that the enquiry is vitiated by violation of principles of natural justice insofar as the Enquiry Officer was biased. The learned Single Judge found that the Enquiry Officer himself appeared for the management in proceedings challenging the enquiry proceedings which would manifestly show bias on the part of the Enquiry Officer. On that ground, the learned Single Judge quashed Exts.P4 and P6 orders and directed the appellants 1 and 3 herein to conduct a dinovo enquiry in respect of the charges against the 1st respondent through any person other than the Enquiry Officer who have conducted the impugned enquiry and to conclude the proceedings within three months from the date of receipt of a copy of that judgment. The appellants herein filed a review petition against that judgment on the ground that the 1st respondent has embarked on 3 parallel proceedings in respect of the same cause of action in the form of a petition under Rule 176, an I.D. under the Industrial Disputes Act and an arbitration case W.A. No. 925 of 2010 3 under Section 69(2) of the Kerala Co-Operative Societies Act and therefore, this Court ought not to have entertained the writ petition at all. But the learned Single Judge dismissed R.P.No.782/2009 filed by the appellant herein. It is under the above circumstances, the appellants have filed this appeal challenging the judgment of the learned Single Judge in the writ petition.
2. According to the learned counsel for the appellants, apart from filing an application under Rule 176 of the Kerala Co- Operative Societies Rules, the 1st respondent has raised an industrial dispute which was decided against him and he had also filed an ARC before the Arbitration Court under Section 69(2) of the Kerala Co-Operative Societies Act. The counsel for the appellant submits that the 1st respondent should not be permitted to prosecute parallel proceedings in respect of the same cause of action.
3. The learned counsel for the 1st respondent stoutly denies the averments of the appellants. According to him, he never prosecuted any parallel proceedings as contended by the W.A. No. 925 of 2010 4 appellant. He pointed out that on 25.11.2004, the punishment of dismissal was imposed on him. He filed an appeal before the Management Committee which was dismissed on 04.03.2005. Thereafter, he had raised an industrial dispute in respect of his dismissal from service. He had also filed an application under Rule 176 on the ground that the constitution of the sub committees in respect of the disciplinary proceedings against the 1st respondent was not in order, which was perfectly valid insofar as Rule 176 permits the same. The application under Rule 176 was dismissed against which the 1st respondent filed an appeal before the Government in 2006. But no orders were communicated to the 1st respondent on the appeal. In the meanwhile, the industrial dispute was decided against the 1st respondent on the ground that he is not a workman as defined under the Industrial Disputes Act, 1947. Therefore, he was left with no other remedy but to file an ARC under Section 69(2) of the Kerala Co-Operative Societies Act, which he did.
4. It is thereafter the Government passed Ext.P6 order dismissing the 1st respondent's appeal. According to the 1st W.A. No. 925 of 2010 5 respondent, in such circumstances the 1st respondent had no other option but to challenge Exts.P4 and P6 orders, since if those orders stand that would prejudicially affect the case of the 1st respondent in the arbitration case. As such there is no merit in the contention that the 1st respondent embarked on three parallel proceedings on the same cause of action is the contention raised. Therefore, according to the 1st respondent, there is no infirmity in the judgment of the learned Single Judge and therefore, the appeal is liable to be dismissed.
5. We have considered the rival contentions in detail. As far as the question of law decided in the judgment of the learned Single Judge is concerned, nobody can take exception to the same. When an Enquiry Officer who conducts an enquiry against a delinquent goes on to defend that enquiry before higher authorities that would definitely prove bias on the part of the Enquiry Officer. As such the question of law laid down by the learned Single Judge is beyond reproach. But we think that after laying down the law, the 1st respondent should have been relegated to pursue the arbitration case filed by him under the W.A. No. 925 of 2010 6 Kerala Co-Operative Societies Act.
6. Insofar as challenging disciplinary proceedings against an employee of a Co-Operative Society is concerned, this Court has time and again held that the jurisdiction of the Joint Registrar under Rule 176 is confined only to the questions regarding non-compliance with the provisions of the Kerala Co-Operative Societies Act and Rules by a Co-Operative Society. It is all the more so, after the amendment of Section 69 of the Act which came into force in 2003 wherein employees of Co-Operative Societies have a remedy by way of filing an arbitration case before the Arbitration Court in respect of their service matters including disciplinary proceedings. Therefore, the Joint Registrar could not have decided the application under Rule 176 filed by the 1st respondent on merits. Consequently, the Government also could not have decided the appeal on merits regarding the validity of the disciplinary proceedings against the 1st respondent. Therefore, we are of opinion that quashing of Exts.P4 and P6 orders by the learned Single Judge is correct although for other reasons stated by us as above.
W.A. No. 925 of 2010 7
7. Therefore, we uphold the quashing of Exts.P4 and P6 but on the ground mentioned by us herein before. But that does not mean that the enquiry itself can be interfered with by this Court when what was under challenge is orders passed in a proceedings without jurisdiction. We are of opinion that after quashing Exts.P4 and P6 orders, the learned Single Judge should have relegated the 1st respondent to his remedy which he has already availed of by filing an arbitration case under Section 69(2) of the Kerala Co-Operative Societies Act. To that extent we are inclined to interfere with the judgment of the learned Single Judge. Accordingly, while upholding the quashing of Exts.P4 and P6 orders, we relegate the 1st respondent to his remedy by way of an arbitration case before the Arbitration Court under Section 69(2) of the Kerala Co-Operative Societies Act. We are informed that the arbitration case has been numbered as 11/2008 before the Arbitration Court, Thiruvananthapuram. We further direct the Arbitration Court, Thiruvananthapuram to dispose of Arbitration Case No. 11/2008 filed by the 1st respondent as expeditiously as possible, at any rate, within four months from the date of receipt W.A. No. 925 of 2010 8 of a copy of this judgment, in accordance with the procedure prescribed under law.
The writ appeal is disposed of accordingly.
Sd/-
S.SIRI JAGAN,JUDGE Sd/-
K.HARILAL, JUDGE sd