Kerala High Court
Muthukulam Service Co-Operative Bank ... vs G.Krishna Kumari on 12 April, 2023
Author: S.V.Bhatti
Bench: S.V.Bhatti
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
Wednesday, the 12th day of April 2023 / 22nd Chaithra, 1945
WA NO. 1045 OF 2020
AGAINST THE JUDGMENT DATED 14.07.2020 IN WP(C) 720/2016 OF THIS COURT
APPELLANTS/RESPONDENTS:
1. MUTHUKULAM SERVICE CO-OPERATIVE BANK LTD.NO. 731, REPRESENTED BY ITS
SECRETARY, MUTHUKULAM SOUTH 690 506, ALAPPUZHA DISTRICT.
2. THE MANAGING COMMITTEE OF MUTHUKULAM ERVICE CO-OPERATIVE BANK LTD
NO.731, REPRESENTED BY ITS PRESIDENT, MUTHUKULAM SOUTH -690 506
ALAPPUZHA DISTRICT.
BY ADVS.M/S.GEORGE POONTHOTTAM (SR), ARUN CHANDRAN, RIJI RAJENDRAN,
NISHA GEORGE,J.VISHNU, VISHNU B.KURUP, A.L.NAVANEETH KRISHNAN, CHITHRA
P.GEORGE, AKSHAY V NAIR
RESPONDENT/RESPONDENT:
G.KRISHNA KUMARI, AKSHAYA, MUTHUKULAM SOUTH P.O, ALAPPUZHA, PIN 690
506
BY ADV.SRI.P.N.MOHANAN
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the Judgement dated 14.0-7.2020 passed by the Learned Single Judge
in W.P.C No.720of 2016 and the award passedas per Exhibit-P7 and Exhibit-
P8 judgment of the Tribunal pending disposal of the Writ Appeal.
This Writ Appeal coming on for orders on 12.04.2023, upon perusing
the appeal memorandum, the court passed the following:
S.V.BHATTI & VIJU ABRAHAM, JJ.
------------------------------------ W.A. Nos.934 of 2022, 1043 of 2020, 1045 of 2020, 938 of 2022, 965 of 2022, 975 of 2022, 1022 of 2022, 1041 of 2022, 1047 of 2022, 1243 of 2022, 1305 of 2022, 1308 of 2022 & 1503 of 2022
----------------------------
Dated this the 12th day of April, 2023 REFERENCE ORDER Viju Abraham, J.
When these batch of writ appeals were taken up for admission hearing, a specific contention was raised by the appellants that these matters may be referred for consideration by a Larger Bench, in as much as the decision in Kodanchery Service Co- operative Bank Ltd v. Joshy Varghese, 2020 (4) KLT 129, relied on by the learned Single Judge requires reconsideration as the same has been passed on a wrong interpretation of Rule 198(2B)of the Co- operative Societies Rules, 1969 and without considering the earlier judgment of the Division Bench of this court in President Puthupariyaram WA No.934 of 2022 & connected cases 2 Service Co-operative Society vs. Rugmini Amma & Others reported in 1996(1) KLT 100. Writ Appeal No.934/2022 will be treated as the leading case and the facts in the said appeal will be adverted to in this order.
2. A co-operative bank registered under Kerala State Co-operative Act 1969 (for short, 'the Act') is the appellant in W.A. 934/2022, who is the petitioner in W.P.(C) No.7268 of 2022. The said writ petition was filed challenging Ext.P10 order passed by the Co- operative Arbitration Court. Relying on the judgment in Kodanchery Service Co-operative Bank Ltd v. Joshy Varghese, 2020 (4) KLT 129, the Arbitration Court through Ext.P10 order, interfered with the dismissal order made against the second respondent herein. The Arbitration Court recorded the finding that the charge sheet was issued by the disciplinary sub-committee constituted under Rule 198 (2A) of the Rules and that only the managing committee has the authority to issue a charge sheet. The writ petition was dismissed. Hence WA No.934 of 2022 & connected cases 3 the present appeal has been filed.
3. The learned senior counsel appearing for the appellant bank submitted that the reliance placed on Kodanchery Service Co-operative Bank's case supra by the Tribunal as well as the learned Single Judge appears to be not correct in as much as the said judgment was rendered on an erroneous interpretation of the provisions of the Kerala Co-operative Societies Act and Rules.
4. It is contended that the disciplinary proceedings start with the issuance of the memo of charges by the disciplinary authority, which is the sub-committee. The learned Single Judge and Kodanchery case failed to consider the stage of commencement of the disciplinary proceedings. Rule 198 of the Rules deals with the initiation of disciplinary action against a delinquent employee. Under the Statutory scheme, Rule 198(2A) mandates the constitution of a sub-committee consisting of three members of the managing committee WA No.934 of 2022 & connected cases 4 and Rule 198(2B) specifies that the sub-committee so constituted shall inquire into the charges against the employee either by themselves or by engaging external agency. The sub-committee constituted attains the authority of the disciplinary authority which imposes penalty for proven charges on the delinquent employee as is evident from Rule 198(3). Thus when the managing committee after a preliminary inquiry is satisfied that an inquiry has to be conducted against a delinquent employee on the misconduct alleged, constitutes a sub- committee. The sub-committee will be entrusted to issue the memo of charges to the delinquent employee. Once the inquiry is completed and the inquiry officer submits the report, the committee will communicate a copy of the inquiry report to the delinquent employee and would inform him of the grounds on which the disciplinary action proposed to be taken against the employee. Rule 198(2) states as follows:
"No kind of punishment shall be awarded to an WA No.934 of 2022 & connected cases 5 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."
5. Thus, the sub-committee will impose the penalty after providing an opportunity to the employee to defend himself again. The provisions of the Rules are so express with the power of the sub-committee as the disciplinary authority and to issue the charge sheet to the delinquent employee.
6. Kodanchery judgment has been rendered in total contravention to the language of the Rule. Rule 198(2) was misinterpreted to hold that the power to issue the memo of charges is vested with the managing committee but not the sub-committee. Rule 198(2) pertains to a situation after the conclusion of the inquiry and the submission of the inquiry report. The said provision WA No.934 of 2022 & connected cases 6 cannot be construed with the issuance of the charge sheet. In other words, the charge sheet contains the charges against the employee. Disciplinary action will be taken against the employee only after the alleged charges are proved against the employee beyond any doubt. The grounds for a proposed action can be on the charges proved. Thus Rule 198(2) is applicable only after the completion of the inquiry and the submission of the report. Thus, the very basis of the ratio laid down by Kodanchery judgment is opposed to the express provision in the KCS Rules. The learned Single Judge seriously failed in considering the aforesaid aspects while issuing the impugned order.
7. The interpretation of Rule 198(2B) by the Division Bench is not correct, for the Rules state as follows:
"The Disciplinary sub-committee so
constituted shall inquire into the charges
against the employee either by themselves or by engaging an external agency.
(underline supplied) WA No.934 of 2022 & connected cases 7
8. Thus, a plain reading of the provision would evidence that the said provision laid down the procedure for the sub-committee to conduct the inquiry. The provision has to be construed as a whole and not merely the first limb which states about the inquiry by the sub-committee. The said interpretation is thoroughly misconceived and goes against the very intention of Rule 198 and the sub sections attached thereto. The law laid down in Kodanchery judgment is therefore bad. The learned Single Judge seriously failed in considering the aforesaid aspects while issuing the impugned order.
9. The Kodanchery judgment was rendered without considering the dictum laid down by an earlier Division Bench in President Puthupariyaram Service Co-operative Society vs. Rugmini Amma & Others reported in 1996(1) KLT 100. In view of the law laid down by the Apex Court, the subsequent judgment which was rendered without considering an earlier judgment having the WA No.934 of 2022 & connected cases 8 similar bench constitution, saying the former will have an overriding effect over the latter. Therefore, the Kodanchery judgment which was rendered misinterpreting the provisions of KCS Rules and also the various judicial pronouncements should be treated as bad law and the dictum laid down is unsustainable. Despite being contended, the learned Single Judge totally failed to consider this relevant aspect while rendering the impugned judgment.
10. The memo of charges can be issued by the appointing authority, disciplinary authority, or any other authority so empowered when the action of an employee is found to be investigated. The competence to initiate disciplinary action substantially depends on the applicable Rules. In appreciating the argument of the counsel for the appellant, We take note of the view of the Supreme Court in the following cases:
State of Madhya Pradesh and Others v. Shardul Singh, (1970) 1 SCC 108 WA No.934 of 2022 & connected cases 9 Article 311 in terms does not require that the authority empowered under the provision to dismiss etc should itself initiate the inquiry preceding the order of punishment or the inquiry done at its instance.
Inspector General of Police v. Thavasiappan - (1996) 2 SCC 145 In this case, a departmental proceeding was initiated against a Sub Inspector of Police and a Deputy Superintendent of Police was appointed as inquiry officer and he framed charges, held an inquiry and based on his report, the Deputy Inspector General of Police imposed the penalty. The said punishment was challenged before the Tamil Nadu Administrative Tribunal mainly contending that only the authority competent to award the proposed penalty could have framed and served the charge memo and since the charge memo was issued by the Deputy Superintendent of Police, the inquiry conducted is bad in law and accepting the said contention the punishment imposed was set aside. WA No.934 of 2022 & connected cases 10 The Apex Court set aside the said finding mainly holding that otherwise competent authorities like appointing authority, disciplinary authority or the controlling authority are empowered to issue charge sheet and conduct inquiry.
Committee of Management, Bishambhar Sharan Vaidic Inter College v. U.P. Secondary Education Service Commission, 1995 Supp (3) SCC 244 The case deals with a converse situation viz., where the Committee of Management issued the chargesheet and the Inquiry Committee conducted an inquiry into such charges. The Supreme Court holds in those circumstances that the view of the High Court in setting aside the punishment on the grounds that the Committee of Management issued the Memo of Charges, is erroneous.
We hasten to add that this is a brief judgment but gives an indication of who can issue the Memo of Charges.
WA No.934 of 2022 & connected cases 11
11. The Sub-Committee cannot itself set in motion the (departmental) disciplinary action. But when ordered to inquire into whether it can issue charge sheet or not. There cannot be any presumption that the charge sheet has to be issued by the appointing authority. It can also be issued by the disciplinary authority. A perusal of Rule 198 and the sub-sections attached thereto, which begins with the various penalties to be imposed on a delinquent employee followed by the procedure to be followed before imposing the penalty and thereafter the procedure to conduct the inquiry, coupled with the general principles of disciplinary proceedings, it can easily be understood that the sub-committee has every power to issue the memo of charges.
12. In the case of Central Government Employees, going by Rule 14 of the CCS (CCA) Rules, for the imposition of a major penalty, whenever the disciplinary authority is of the opinion that there are WA No.934 of 2022 & connected cases 12 grounds for inquiring into the truths of any imputation or misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint an authority to inquire into the truth thereof. The Rule further says if the disciplinary authority proposes to hold an inquiry against the government servant, the disciplinary authority shall draw up or cause to be drawn up the substance of the imputation of the misconduct or misbehaviour into definite and distinct articles of charge and a statement of imputation in support of each articles of charge and that the disciplinary authority shall deliver or cause to be delivered to the government servant a copy of articles of charge, statement of imputation and list of document and witnesses. Rule 14 (6) speaks of a situation where disciplinary authority if it is not the inquiring authority, shall forward to the inquiring authority copy of the articles of charge and statement of imputation, copy of written statement of the defence, WA No.934 of 2022 & connected cases 13 copy of statement of witnesses and evidence and a copy of the order appointing the presenting officer. So going by the Central Rules, articles of charge and statement of imputation shall be served to the delinquent employee by the disciplinary authority.
13. As per the Kerala Co-operative Societies Rules, disciplinary action against an employee is provided in Rule 198. The committee of the society shall constitute a disciplinary sub-committee consisting of not more than three of its members, of whom one shall be designated as chairman and the disciplinary sub- committee so constituted shall inquire into the charges against the employee either by themselves or by engaging an external agency.
14. A reading of Rule 198 (2A) mandates that the committee of a society shall constitute a disciplinary sub-committee and as per Rule 198 (2B), the disciplinary sub-committee so constituted shall inquire into the charges against the employee.In the Kodanchery WA No.934 of 2022 & connected cases 14 case, the court has considered the meaning of the word "charge" and "charge sheet" and held that charge means any specific act or omission alleged to have been committed by an employee and charge sheet is the memorandum of charges which carries allegations of act or omission. In light of the said definition as given in Kodanchery case and a reading of Rule 198 (2A) makes it clear that the managing committee shall constitute a disciplinary sub-committee for the purpose of inquiring into the charges. The charges mentioned in the said sub-section can only be the specific act or omission alleged to have been committed by an employee, in the event of which the managing committee is empowered to constitute a sub-committee to inquire into the said charge. Therefore, the finding in Kodanchery case that Rule 198 (2B) does not specifically empower the disciplinary sub-committee to frame definite charge needs to be reconsidered.
We direct the Registry to place the papers WA No.934 of 2022 & connected cases 15 before the Hon'ble Chief Justice for posting the matter before a Full Bench for considering the correctness of the view taken by the Kodenchery case and also for deciding the scope and ambit of Rule 198 (2) of the Rules whether the sub-committee inquires from the stage of a charge sheet already issued and Rule 198 (2) in terms inheres the authority to issues memo of charge, inquiring into and impose the punishment as per Rule 198(5).
sd/-
S.V.BHATTI JUDGE sd/-
VIJU ABRAHAM JUDGE pm