Kerala High Court
Mathew Joseph vs The Registrar Of Co-Operative ... on 26 August, 2022
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
WP(C) NO. 22728 OF 2021
PETITIONER:
MATHEW JOSEPH
AGED 45 YEARS
S/O.JOSEPH, GANAPATHYPLAKKAL HOUSE, KUPPAYAKODU P.O.,
KOZHIKKODE DISTRICT-673580.
BY ADVS.
GEORGE POONTHOTTAM (SR.)
J.VISHNU
A.L.NAVANEETH KRISHNAN
ANSHIN K.K
CHITHRA P.GEORGE
NISHA GEORGE
RESPONDENTS:
1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES
JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P.O.,
THIRUVANANTHAPURAM-695014.
2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,
KOZHIKODE, PUTHIYARA P.O., KOZHIKKODE DISTRICT-673004.
3 THE PUDUPPADI SERVICE CO-OPERATIVE BANK LTD. NO.F1830,
PUDUPPADI P.O., KOZHIKODE DISTRICT-673586, REPRESENTED
BY ITS SECRETARY.
4 THE PRESIDENT,
THE PUDUPPADI SERVICE CO-OPERATIVE BANK LTD. NO. F1830,
PUDUPPADI P.O., KOZHIKODE DISTRICT-673586.
BY ADV M.SASINDRAN SC
SMT PARVATHY K-GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 22728 OF 2021
2
JUDGMENT
The petitioner impugns Ext.P15 proceedings issued by the 3rd respondent - Service Co-operative Bank (hereinafter referred to as "Society" for short), on various grounds, but primarily, that it is an illegal action, initiated without competence and intended to harass and victimize him.
2. Sri.A.L.Navaneeth Krishnan - learned counsel for the petitioner, explained that, while his client was working in the services of the Society, he took long leave to join his family at Australia, but that before returning, he met with an accident, thus being unable to rejoin duty within the time granted to him. He says that this led WP(C) NO. 22728 OF 2021 3 to a disciplinary action against his client, though he wanted to rejoin duty; which was, however, set aside by the Joint Registrar, through Ext.P7, which then led to a second enquiry being initiated, which was also, however, set aside by the Arbitration Court through Ext.P14 order.
3. The petitioner asserts that, as is evident from Ext.P14, the entire disciplinary action was found to be "invalid"; but that the Society, thereupon, issued Ext.P15 Charge Memo to him on 19.08.2021 and then again placed him under suspension, however, without granting him any benefits during the period of his initial suspension from 13.04.2015.
4. The petitioner contends that since WP(C) NO. 22728 OF 2021 4 he had attempted to rejoin duty with the Society on 03.11.2014, but denied such opportunity, he is entitled to the monetary benefits from that date and not merely from the date of his initial suspension. He thus prayed that the reliefs sought for in this writ petition be granted.
5. In response, Sri.M.Sasindran - learned counsel for the respondent, initially sought time to file counter pleadings, but argued that the Arbitration Court, vide Ext.P14, has remanded the matter to the management of the Society for fresh action. He submitted that law has been well settled by the Hon'ble Supreme Court, through various judgments, that when a matter is remanded to the management WP(C) NO. 22728 OF 2021 5 for fresh consideration, automatic reinstatement or payment of benefits cannot follow. He then argued that his client is only acting as per the liberty reserved to them in Ext.P14 order by the Arbitration Court and that since the allegations against the petitioner are very grave, they found it necessary that he be proceeded against properly, which led to Ext.P15 Charge Memo being issued. He argued that petitioner cannot assail Ext.P15 since it has been issued validly by his client based on the liberty reserved by the Arbitration Court and; thus prayed that this writ petition be dismissed.
6. The afore rival contentions being recorded, it is perspicuous that there are WP(C) NO. 22728 OF 2021 6 two limbs in the claims of the petitioner:
namely, (a) that Ext.P15 be set aside and he be ordered to be reinstated in service,pursuant to Ext.P14 order of the Arbitration Court; and (b) that monetary benefits from 03.11.2014 be ordered to be paid to him by the Society.
7. On the first of the afore limbs of the reliefs sought for by the petitioner, I am afraid that I cannot find favour with him because, as rightly argued by Sri.M.Sasindran, though the earlier proceedings against him was found to be incompetent and invalid by the Arbitration Court - based on the declaration of a learned Division Bench of this Court in Kodanchery Service Co-operative Bank Ltd. WP(C) NO. 22728 OF 2021 7 v. Joshy Varghese [2020(4) KLT 129] - liberty was certainly reserved to them to initiate fresh action, if they were so interested. When the Society acted within the ambit of such liberty reserved to them, I cannot see how the petitioner can challenge against Ext.P15; and am certain that he must co-operate with the enquiry, so that it can be concluded without any further delay.
8. That being said, as regards the benefits claimed by the petitioner for the period from 03.11.2014 are concerned, I notice that Society has never considered or acceded to it, nor have they rejected it in any manner until now. True, the petitioner did not approach them for the benefits, but WP(C) NO. 22728 OF 2021 8 he has sought the prayers in this writ petition, hinged on Ext.P14 order of the Arbitration Court.
9. When one examines Ext.P14 order, as rightly argued by Sri.A.L.Navaneeth Krishnan - learned counsel for the petitioner, the entire disciplinary action was found to be "invalid", since the Charge Memo itself was found to have been issued by an incompetent Authority. The law is well settled, without requirement for restatement, that a disciplinary action begins with the Charge Memo; and hence, when the said Memo itself is found to be invalid, then the edifice falls and the disciplinary action will be construed to be non est. WP(C) NO. 22728 OF 2021 9
10. In that perspective, it is indubitable that the disciplinary action initiated against the petitioner earlier cannot be allowed to continue and that the Management could have only initiated fresh action, following the statutory procedure.
11.However, the argument of Sri.M.Sasindran is on the basis of the words "remanded" used by the Arbitration Court in Ext.P14 and he contends that this means that same process has been sent back to the Society for being continued. I am afraid that this argument can never find favour because the findings in Ext.P14 is explicit that the earlier disciplinary action has been found to be "invalid", but with liberty being reserved to the Management to initiate WP(C) NO. 22728 OF 2021 10 fresh action.
12. Therefore, merely because the Arbitration Court has wrongly used the word "remanded" in Ext.P14, it does not mean that it is the same disciplinary action which has been sent back to the Society for being pursued, particularity when it has already been declared to be invalid by it. To add to this, even after using the word "remand" in Ext.P14 order, the Arbitration Court left to the Management to make "fresh consideration", however, "only if necessary". It is, therefore, ineluctable that what the Arbitration Court did was to set aside the earlier disciplinary proceedings and to allow the Management to take fresh action, if they were so WP(C) NO. 22728 OF 2021 11 interested.
13. In the afore scenario, I am certain that the Managing Committee of the Society must hear the petitioner and take a decision on the claim for arrears of salary for the period prior to Ext.P14, taking note of all relevant and germane inputs and documents, adverting to the contention that he was deliberately kept out of service after 03.11.2014, even though he was willing to rejoin.
14. A decision as afore shall be taken by the Management, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment; and all benefits, if found due after such exercise, shall be released to WP(C) NO. 22728 OF 2021 12 the petitioner within a period of one month thereafter.
15. At this time, Sri.A.L.Navaneeth Krishnan, intervened to request that the subsistence allowance, pursuant to Ext.P15, also be directed to be paid by the Society to him.
16. Needless to say, since the Society maintains that petitioner has now been placed under suspension, he will be entitled to eligible subsistence allowance, which shall, certainly be paid by them and if there is any failure to do so, the petitioner will be at liberty to approach this Court again seeking appropriate reliefs.
17. I also deem it necessary that the WP(C) NO. 22728 OF 2021 13 disciplinary action, now initiated through Ext.P15, be ordered to be completed by the Society without any delay. I, therefore, additionally order that said process shall be completed within an outer limit of four months from the date of receipt of a copy of this judgment.
This writ petition is thus ordered.
Sd/-
DEVAN RAMACHANDRAN JUDGE SAS WP(C) NO. 22728 OF 2021 14 APPENDIX OF WP(C) 22728/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE EMAIL SENT BY THE PETITIONER FROM AUSTRALIA TO THE SECRETARY OF THE BANK DATED 6.3.2014.
Exhibit P2 TRUE COPY OF THE SHOW-CAUSE NOTICE ISSUED BY THE CHAIRMAN OF DISCIPLINARY SUB- COMMITTEE, ATTACHED AND SENT VIA EMAIL, DATED 12.9.2014.
Exhibit P3 TRUE COPY OF THE REPLY TO THE SHOW-CAUSE NOTICE SUBMITTED BY THE PETITIONER DATED 15.9.2014.
Exhibit P4 TRUE COPY OF THE CHARGE MEMO ISSUED BY THE CHAIRMAN OF THE DISCIPLINARY SUB-COMMITTEE DATED 18.10.2014.
Exhibit P5 TRUE COPY OF THE REQUEST TO RE-JOIN SERVICE SUBMITTED BY THE PETITIONER DATED 3.11.2014 WITH ENGLISH TRANSLATION. Exhibit P6 TRUE COPY OF THE FLIGHT TICKET RECEIVED ON 15.7.2014 ALONG WITH CERTIFICATE OF INSURANCE.
Exhibit P6(A) TRUE COPY OF THE MEDICAL CERTIFICATE DATED 6.8.2014.
Exhibit P6(B) TRUE COPY OF THE MEDICAL CERTIFICATE DATED 17.9.2014.
Exhibit P6(C) TRUE COPY OF THE MEDICAL CERTIFICATE DATED 16.10.2014.
Exhibit P7 TRUE COPY OF THE ORDER NO.C.R.P. (1)/7559/14(1) DATED 4.4.2015 ISSUED BY THE 2ND RESPONDENT WITH ENGLISH TRANSLATION.
WP(C) NO. 22728 OF 2021 15 Exhibit P8 TRUE COPY OF THE ORDER ISSUED BY THE PRESIDENT OF THE SOCIETY, DATED 13.4.2015, SUSPENDING THE PETITIONER PENDING ENQUIRY, WITH ENGLISH TRANSLATION.
Exhibit P9 TRUE COPY OF THE CHARGE MEMO ISSUED BY THE CHAIRMAN OF THE DISCIPLINARY SUB- COMMITTEE, DATED 13.5.2015. Exhibit P10 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 20.5.2015 OF EXHIBIT P9 CHARGE MEMO.
Exhibit P11 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.20282/2015 DATED 7.7.2015.
Exhibit P12 TRUE COPY OF THE DISMISSAL ORDER ISSUED BY THE CHAIRMAN OF THE DISCIPLINARY SUB COMMITTEE DATED 11.4.2016.
Exhibit P13 TRUE COPY OF THE ORDER ISSUED BY THE MANAGING COMMITTEE DISMISSING THE PETITIONER'S APPEAL WITH COVERING LETTER DATED 13.8.2016 WITH ENGLISH TRANSLATION. Exhibit P14 TRUE COPY OF THE ORDER IN ARC.NO.94/2016 DATED 16.2.2021 ISSUED BY THE CO-OPERATIVE ARBITRATION COURT (NORTHERN), KOZHIKODE. Exhibit P15 TRUE COPY OF THE NOTICE ISSUED BY THE PRESIDENT OF THE BANK SUSPENDING THE PETITIONER AND CONTAINING CHARGE MEMO AGAINST THE PETITIONER, DATED 19.8.2021 WITH ENGLISH TRANSLATION.
Exhibit P16 TRUE COPY OF THE REPLY TO THE THIRD CHARGE MEMO SUBMITTED BY THE PETITIONER DATED 7.9.2021 WITH ENGLISH TRANSLATION. Exhibit P17 TRUE COPY OF THE NON EMPLOYMENT CERTIFICATE/AFFIDAVIT DATED 24/12/2021 SUBMITTED BY THE PETITIONER WP(C) NO. 22728 OF 2021 16 Exhibit P18 TRUE COPY OF THE INTERIM ORDER DATED 22.12.2021 IN W.P.(C) NO.22728/2021 PASSED BY THIS HON'BLE COURT.
Exhibit P19 TRUE COPY OF THE COMMUNICATION DATED 07.02.2022 ISSUED BY THE SECRETARY OF THE BANK TO THE PETITIONER.
Exhibit P20 TRUE COPY OF THE COMMUNICATION DATED 09.02.2022 ISSUED BY THE PETITIONER TO THE PRESIDENT OF THE BANK.
PETITIONER EXHIBITS Exhibit P21 TRUE COPY OF THE JUDGMENT IN WP(C) NO.4144 OF 2022 DATED 11-03-2022 PASSED BY THIS HON'BLE COURT.
Exhibit P22 TRUE COPY OF THE JUDGMENT DATED 07-06-2022 IN WA NO.427 OF 2022 PASSED BY THIS HON'BLE COURT.
Exhibit P23 TRUE COPY OF THE NOTICE DATED 20-07-2022 ISSUED BY THE ENQUIRY OFFICER TO THE PETITIONER.
RESPONDENTS' EXHIBITS Exhibit R3 A A TRUE COPY OF THE ENQUIRY REPORT, AFTER DOMESTIC ENQUIRY AGAINST THE APPLICANT.
//TRUE COPY// P.A. TO JUDGE