Kerala High Court
Narayanan vs Narikkuni Service Co-Operative Bank on 10 April, 2002
Author: Kurian Joseph
Bench: Kurian Joseph
JUDGMENT Kurian Joseph, J.
1. Is a third party entitled to invoke the appellate jurisdiction under Rule 198 of the Kerala Co-operative Societies Rules; (2) Can there be an enhancement of punishment in an appeal under the said Rule and (3) What is the quorum of the appellate authority. These are the three questions tackled in this case.
2. The issue in the Original Petition relates to disciplinary proceedings initiated against the petitioner who was an employee of the first respondent society. In view of certain admitted factual positions it may not be necessary to refer to the merits of the case in detail. The petitioner was a direct recruit Secretary of the first respondent society and he had been working there since 4.10.1978. As per Ext. P3 memo of charges disciplinary proceedings were initiated against the petitioner and he was placed under suspension with effect from 29.7.1999. The proceedings culminated in Ext. P2 order whereby the petitioner was reverted to the post of Accountant. Relying on the decision of the Supreme Court in Hussain Sasansaheb Kaladgi v. State of Maharashtra, (AIR 1987 SC 1627) petitioner challenged the reversion and contended that being a direct recruit he cannot be reverted. The said Writ Petition, O.P. No. 15392 of 2000 was disposed of as per Ext. P10 judgment wherein this Court held that "it will be open to the appellate authority to substitute the punishment imposed to any other punishment as contemplated under Rule 198( 1) of the Kerala Co-operative Societies Rules". Court also relegated the petitioner to the statutory remedy of appeal. It was directed therein that "the appeal will be heard and disposed of by the Board of Management excluding the President and members of the sub-committee concerned". The matter was taken up in Writ Appeal and as per Ext. P11 judgment the Division Bench confirmed Ext. P10 judgment and it was held that "since all the contentions raised by the appellant are those he could raise before the appellate authority and equally efficacious alternate remedy is available to him by approaching the appellate forum and still higher authorities, we find that the approach made and also the conclusion arrived at by the learned single Judge do not suffer from any infirmity."
3. While so, quite strangely Exts. P13 and P14 appeals were filed by strangers against the order of reversion of the petitioner and prayed the appellate authority to enhance the punishment and dismiss the petitioner from service. The order in appeal is Ext. P19. Ext. P19 is attacked on various grounds. But it will be sufficient if only two grounds are adverted to since on those two grounds obviously the matter will have to go back. The first ground is that there are only three members while hearing the appeal and secondly it is contended that there cannot be an order enhancing the punishment of the petitioner.
4. On the quorum it is not in dispute that it is just above fifty percent of the total number of members of the committee. Under Rule 198 of the Kerala Co-operative Societies Rules the appellate authority is the Board of Management, the committee. True the members of the disciplinary committee are not entitled to participate when an appeal is considered. But that does not mean that number of members of the committee is to be taken as the number as reduced by the number of the sub committee members. Number of the committee remains the same, namely in the instant case 9 and hence the quorum will have to be understood as against the number of the committee and not the number of the members available and permissible for considering a matter in appeal. The number of members is 9 and hence there must be atleast 5. Admittedly there were only three when the matter was considered. The contention of the society is that as per Ext. P10 judgment this Court had directed the exclusion of the President and two members in the sub committee and the remaining being 6, fifty per cent constituted 3 and hence there was quorum. I am afraid the contention cannot be accepted. The statutory requirement of quorum is just above fifty per cent of the total number of the committee. Section 28(5) of the Kerala Co-operative Societies Act is unambiguous.
"(5) The quorum for a meeting of a committee shall be such number of members just above fifty per cent of the total number of members of that committee."
Hence the fifty percent should be taken as against the number of the committee and not against the number of members after excluding the sub committee members.
5. The next contention is regarding punishment. Rule 198(1) provides for the following punishments:-
"198. Disciplinary Action:- (1) Any member of the establishment of a Co-operative Society may, for good and sufficient reasons, be punished by imposing any of the following penalties, namely:-
(a) Censure;
(b) Fine (in the case of employees in the last grade)
(c) Withholding of increments with or without cumulative effect.
(d) Withholding of promotion;
(e) Recovery from pay of the whole or part of any pecuniary toss caused to the society, by negligences or breach of orders or otherwise;
(f) Reduction to a lower rank;
(g) Compulsory retirement;
(h) Dismissal from Service".
It has to be noted that by Ext. P2 order the disciplinary committee imposed a punishment of reduction to a lower rank refraining from dismissal and compulsory retirement. The grievance was on the said punishment. When that punishment was challenged, this Court observed that it was open to the appellate authority to substitute the punishment imposed to any other punishment as contemplated under Rule 198(l). Substitution cannot be by a higher punishment. It has to be noted that the committee itself had once decided not to be harsh to the extent of termination. Therefore, the substitution also can have only that effect.
6. It was also not proper on the part of the appellate authority to have entertained appeals by third parties. In the matter of disciplinary proceedings initiated against an employee of the first respondent society, third parties have no role to play and they have no say in the matter. It is for the statutory authorities to take appropriate action as warranted in the circumstances and as permitted under the Statute. Under Rule 198 of the Kerala Co-operative Societies Rules only an employee is entitled to invoke the remedy of an appeal. There is no provision under the Rules enabling 'any party aggrieved by any order' or even 'any person interested' to file an appeal. The aggrieved party is only the employee concerned arid in that restricted provision of an appeal, third parties have no locus standi to file an appeal. Appeal is only a statutory remedy and it can be invoked only as provided under the statute. Moreover, this Court also permitted only the petitioner to invoke the statutory appeal and that alone was directed to be considered also.
I set aside Ext. P19, direct the appellate authority under the first respondent society, to consider the appeal filed by the petitioner afresh and in accordance with law. This shall be done expeditiously, at any rate within a period of two months from the date of receipt of a copy of the judgment.
The Original Petition is disposed of as above.