Kerala High Court
S.Devarajan vs The Kandaloor Farmers Services Co
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
TUESDAY, THE 24TH DAY OF JULY 2012/2ND SRAVANA 1934
WP(C).No. 14116 of 2009 (H)
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PETITIONER(S):
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S.DEVARAJAN, AGED 58 YEARS,
S/O.N.SANKARAN, MANAGING DIRECTOR
KADALLOOR FARMERS SERVICE CO-OPERATIVE BANK
LTD.NO.1410 (UNDER SUSPENSION NOW RETIRED
RESIDING AT NADASSERIL HOUSE,KANDALLOOR SOUTH
KAYAMKULAM.
BY ADVS.SRI.K.RAMAKUMAR (SR.)
SRI.T.RAMPRASAD UNNI
SRI.J.R.PREM NAVAZ
RESPONDENT(S):
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1. THE KANDALOOR FARMERS SERVICES CO-
OPERATIVE BANK LTD NO.1410, P.O.KANDALLOOR
KAYAMKULAM, ALAPPUZHA ,REPRESENTED BY ITS
MANAGING DIRECTOR IN CHARGE.
2. THE PRESIDENT
THE KANDALOOR FARMERS SERVICES CO-OPERATIVE BANK
LTD NO.1410, P.O.KANDALLOOR KAYAMKULAM, ALAPPUZHA
REPRESENTING THE MANAGING COMMITTEE OF THE BANK.
3. THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES, ALAPPUZHA.
BY ADV. SRI.GEORGE POONTHOTTAM
BY GOVERNMENT PLEADER SRI.T.R.RAJESH
THIS WRIT PETITION (CIVIL)HAVING BEEN FINALLY HEARD ON 24-07-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: TRUE COPY OF THE ORDER DATED 14.1.2003 ISSUED BY R1 TO THE
PETITIONER
EXT.P2: TRUE COPY OF ORDER DATED 15.5.2003 ISSUED BY THE PRESIDENT OF
R1 SOCIETY ON BEHALF OF THE APPEAL COMMITTEE.
EXT.P3: TRUE COPY OF PETITION DT.6.6.2003 SUBMITTED BY THE PETITIONER
BEFORE THE CO-OPERATIVE ARBITRATION COURT AS A.R.C.NO.50 OF 2003.
EXT.P4: TRUE COPY OF AFFIDAVIT DT.2.9.2005 SUBMITTED BY THE PETITIONER
IN A.R.C.NO.50 OF 2003
EXT.P5: TRUE COPY OF AWARD DT.19.10.2007 IN A.R.C.NO.50 OF 2003 BY THE
CO-OPERATIVE ARBITRATION COURT.
EXT.P6: TRUE COPY OF JUDGMENT DT.16.3.2009 IN A.P.NO.37 OF 2007 ON THE
FILE OF THE KERALA CO-OP.TRIBUNAL.
EXT.P7: TRUE COPY OF ORDER NO.38/2009 DT.21.4.2009 ISSUED BY R1 TO THE
PETITIONER.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
P A TO JUDGE
S.SIRI JAGAN,J.
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WP(C) No.14116 of 2009
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Dated this the 24th day of July , 2012
JUDGMENT
The petitioner was the Managing Director of the 1st respondent Co-operative bank. The bank decided to conduct a selection for the post of Peon in the Bank. The selection committee consisted of the members of the Director Board of the bank and the petitioner. The interview was completed and marks were awarded to various candidates. The selection committee entrusted the petitioner the marks recorded by them to draw up a rank list based on the marks awarded by the selection committee members. According to the petitioner he drew up the rank list and forwarded the same to the Joint Registrar of Co-operative Societies. The petitioner alleges that the next day four director board members of the bank rushed in to the petitioner's room and demanded that the marks be changed and consequently the rank of the candidates also be changed appropriately. The petitioner would allege that WP(C) No.14116 of 2009 2 when the petitioner refused, the members threatened the petitioner and forced him to correct the marks; which he had to do out of fear. He reported the same also to the appropriate authority is the contention raised by the petitioner. But on the allegation that petitioner has unauthorisedly corrected the marks awarded, disciplinary proceedings were intiated against the petitioner along with another charge as well. In the enquiry, the enquiry officer found the petitioner guilty of the misconducts alleged against him. Thereafter the petitioner was served with a show cause notice directing him to show cause why punishment of removal from service should not be imposed on the petitioner. The petitioner filed a reply to the same. But by Ext.P1 order the sub committee of the bank imposed on the petitioner, the punishment of reduction in rank to the post of Junior Clerk. The petitioner filed an arbitration case before the Arbitration Court under the Kerala Co- operative Societies Act. The Arbration Court accepted the contentions of the petitioner that there was violation of WP(C) No.14116 of 2009 3 priniciples of natural justice and the procedure established by law in the conduct of the enquiry and set aside the punishment imposed on the petitioner on that ground, and directing the bank to reinstate the petitioner to the original post. Ext.P5 is the order passed by the Arbitration Court. The bank filed an appeal to the Kerala Co-operative Tribunal. The Tribunal by Ext.P6 order set aside the order of the Arbitration Court, but interfered with the punishment and directed that the petitioner be reverted to the immediate lower rank of Senior Accountant. The petitioner is now challenging Ext.P6 order seeking the following reliefs:
"i) To call for the records leading upto Exhibits P1, P6 and P7 and quash the same by the issuance of a Writ of Certiorari or any other appropriate writ, order or direction.
ii) To issue Writ of Mandamus directing the 3rd respondent to issue appropriate orders for disbursal of the terminal benefits due to the petitioner from the 1st respondent bank."
2. One of the contentions raised by the petitioner is that after the enquiry, before the show cause notice for punishment was issued to the petitioner, the petitioner was not given an opportunity to show cause against the enquiry WP(C) No.14116 of 2009 4 proceedings and the findings in the enquiry report, which amounts to violation of principles of natural justice. The petitioner submits that in Ext.P5 order, the Arbitration Court has specifically come to the finding that, the petitioner was not served with a copy of the enquiry report after the enquiry, which amounts to violation of principles of natural justice. The petitioner points out that, that specific finding has been glossed over by the Tribunal, while passing Ext.P6 order. The petitioner submits that it is settled law that before imposing punishment, the disciplinary authority is duty bound to give an opportunity to the deliquint to show cause against the enquiry proceedings and the findings in the enquiry report. The petitioner relies on various decisions of the Supreme Court starting from that of Managing Director, ECIL, Hyderabad & Others Vs. B. Karunakar & Others, (1993) 4 SCC 727, in support of that contenion. The petitioner therfore submits that the proceedings for imposition of punishment are totally unsustainable in view of the violation of principles of natural justice in the conduct WP(C) No.14116 of 2009 5 of the disciplinary enquiry. The petitioner therefore submits that for that reason Ext P6 order is liable to setaside and Ext.P5 restored
3. The respondents 1 & 2 stoutly oppose the contentions of the petioner. First of all, they would contend that the decisions relied upon by the petitioner do not apply to disciplinary proceedings against employees of Co-operative Societies. Secondly, it is submitted that the petitioner has not chosen to raise this particular contention before the desciplinary authoriy or the appellate committee or even the Arbitration Court and therefore the petitioner cannot be permitted to raise that contention in this writ petition. The counsel relies on the decision of Supreme Court in Haryana Financial Corporation and another Vs. kailash chandra Ahuja, (2008) 9 SCC 316 and State Bank of India and others Vs. Bidyut Kumar Mitra and Others (2011) 2 SCC 316 in support of the contentions.. Relying on the very same decisions the counsel also submits that the petitioner has to show prejudice WP(C) No.14116 of 2009 6 because of the lack of opportunity to show cause against the enquiry proceedings and enquiry report before imposition of punishment. It is also submitted that all these objections to the proceedings pales into insignificace, since the petitioner himself has admitted having corrected the marks, which has been found in Ext. P6 order of the Tribunal. In support of that contention the counsel relies on the decision of the Supreme Court in Central Bank of India Ltd. Vs. Karunomoy Banerjee, AIR 1968 SC 266.
4. I have considered the rival contentions in detail. I also perused the records relating to case, which have been produced by the Government Pleader, as directed by this court. The files contain the original showcause notice issued to the petitioner after the enquiry for imposition of punishment . The file does not contain any previous show cause notice as to the acceptance of the enquiry proceedings and the findings in the enquiry report. In the show cause notice issued punishment was proposed on the petitioner after accepting the enquiry report. As such, no WP(C) No.14116 of 2009 7 opportunity was granted to the petitioner by the disciplinary authority before accepting the enquiry report and proposing punishment on the basis of that enquiry report. Of course, although the petitioner takes a stand that the copy of the enquiry report was not furnished to the petitioner, in Ext. P4 affidavit filed by the petitioner before the Arbitration Court, it has been specifically stated that along with the show cause notice copy of enquiry report was given to the petitioner. But the petitioner points out that his contention is that the enquiry report was not furnished to the petitioner for his objections regarding the enquiry proceedings and the enquiry report. According to him, it is not sufficient that the copy of the enquiry report be furnsihed along with the show cause notice for imposition of punishment. He would submit that he should have been given an opportunity to showcause against the enquiry proceedings and the enquiry report after furnishing him a copy of the enquiry report.
5. I do not find merit in the contentions of the counsel for respondents 1 and 2 that the principles laid down in WP(C) No.14116 of 2009 8 B. Karunakar's case (supra) of the supreme court does not apply to disciplinary proceedings against employees of Co-operative societies. I am of the opinion that the basic principle of natural justice are applicable to all disciplinary proceedings whether industrial or Co-operative Societies or disciplinary proceedings against government servants. Therefore, I am of opinion that the basic principles of natural justice, which has been confirmed in B.Karunakar's case (Supra) is applicable to the disciplinary proceedings against employees of the Co-operative Societies as well.
6. Regarding the second contention that the petitioner has not raised the specific objections against the desciplinary proceedings in the first instant, I find that in Ext.P4 affidavit before the Arbitration Court it is specifically stated thus in Paragraph - 20 " Enquiry OfficerIfI^DIxN^Oa" H_ONU_xaiN^Oa"
.H_Am fD{_Um HW5^X gUI %UXx" HW5^fDOa" .H_Am g5U\ H`D_ H_gWG_:naf5^Ia" XLm5Nmx_Oaf? D^WIxcmUa"
H_VgFVNHaXx_:nm H_ONU_xaiN^Oa" 2xa y_gM^VGm HW5_.e& y_gM^VG_f\ H_7NHBf{ X"Lt_:nm .gK^?m U_VF`5xC"
fI^\a" &UVcfM?^fD XLm5Nx_ >^X 5axA^xH^fCK NaXUn_G_gO^f? .fKe<bH_OV 5oVA^O_ Dx" D^]mJ^X D`xaN^H_Aa5Oa" %dI5^x" Dx" D^]qJ^D_x_A^X WP(C) No.14116 of 2009 9 5^xCNafIC_W 5^C_ACfNKm &UVcfMGm 08.01.03 D_OD_O_W 760/02_03_^" H"Lx^O_ gH^G`Xm HW5_O_xaKa.e?_ gH^G`Xm Y^<x^AaKa.eeExt.P18 .KAN_Gm ?_ gH^G`Xm .fa M^7" fD{_U_H^O_ Xb`5x_ACfNKm %gIf."
From that, it is clear that the petitioner had in fact raised this contention at the earliest opportunity. Of course the learned counsel for the respondent would vehementally argue that even the quoted portion does not specifically spell out the prejudice caused to the petitioner on account of the lack of opportunity to show cause against enquiry proceedings and enquiry report. I am of opinion that the prejudice can be easily inferred from the facts and circumstances of the case. The petitioner's contention is that the petitioner was forced to correct the marks on threats and coersion made by the four members of the Board of Directors. I am of the opinion that if an opportunity was given to the petitioner by the disciplinary authority to show cause against the enquiry proceedings and the findings in the enquiry report, the petitioner could have shown to the disciplinary authority that although he had WP(C) No.14116 of 2009 10 done the particular act alleged against him, he has forced to do it because of the circumstances which was beyond his control. Therefore the petitioner was in fact prejudiced by the lack of opportunity by the disciplinary authoriy to show cause against the findings in the enquiry report.
7. Lastly, the counsel for the bank would submit that in sofaras the petitioner admitted the guilt, all other things pales into insignificance. My findings in respect of prejudice answeres this contention also. Although the petitioner admitted having corrected the marks, he also explained the circumstances under which he was forced to do it. Therefore the fact that the petitioner admitted having corrected the marks is not the final word regarding the guilt of the petitioner. If the petitioner had been made to do an act because of threat and coersion by some of the members of the Director Board themselves, that admission will not have any effect regarding the guilt of the petitioner in respect of the misconducts alleged against him. Therefore I do not find any merit in any of the objections raised by the WP(C) No.14116 of 2009 11 bank against the contention of the petitioner that the lack of opportunity to show cause against the enquiry proceedings and enquiry report will not in any way vitiate the punishment imposed on the petitioner. In the above circumstances I am satisfied that the entire disciplinary proceedings are vitiated by non-compliance with principle of natural justice, insofaras the petitioner not been given an opportunity to show cause against the enquiry proceedings and the findings in the enquiry report as mandated by the decisions of this Supreme Court in B.Karunakar's case (Supra)
8. Consequently Ext.P6 order of the tribunal is quashed and Ext.P5 of the Arbitrary Court is restored. Now that the petitioner has retired from service, there is no point in permitting the Bank to redo the proceedings in accordance with law. Therefore it must be deemed that the petitioner has retired from service without any punishment having been imposed on him. The writ petition is disposed of as above.
WP(C) No.14116 of 2009 12
The files relating to the desciplinary proceedings against the petitioner, produced by the Government Pleader, as directed by this court is returned to him in court today, which is recorded.
sd/-
S.SIRIJAGAN, JUDGE \\ true copy\\ PA TO JUDGE jm WP(C) No.14116 of 2009 13 Enquiry Officer