Kerala High Court
S. Yadava vs The Kerala State Co-Operative Bank on 2 August, 2021
Author: Alexander Thomas
Bench: Alexander Thomas
WA No.727/2021 1/9
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
Monday, the 2nd day of August 2021 / 11th Sravana, 1943
WA NO. 727 OF 2021
AGAINST JUDGMENT DATED 22.3.2021 IN WP(C) 23480/2020 OF THIS COURT.
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APPELLANT/PETITIONER:
S. YADAVA,AGED 58 YEARS, S/O. LATE KANNA BELCHAPADA,
RESIDING OPPOSITE TO BANDIYOD JUMMA MASJID, NH-66,
MANGALPADY (PO), KASARAGOD DISTRICT PIN - 671 324.
BY ADVS. M/S.JAWAHAR JOSE & CISSY MATHEWS
RESPONDENTS/RESPONDENTS:
1.THE KERALA STATE CO-OPERATIVE BANK,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
P.B. NO. 6515, CO-BANK TOWERS, PALAYAM,
THIRUVANANTHAPURAM, PIN - 695 033.
2.THE GENERAL MANAGER, KERALA STATE CO-OPERATIVE BANK,
REGIONAL OFFICE, TALAP, KANNUR, PIN - 670 002.
ADDL.R3 & R4 IMPLEADED.
ADDLR3. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
ADDL.R4. THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
JAWAHAR SAHAKARANA BHAVAN, D.P.I. JUNCTION, THYCAUD (P.O.),
THIRUVANANTHAPURAM-695014.
P.T.O.
WA No.727/2021 2/9
(ADDITIONAL R3 AND R4 ARE IMPLEADED AS PER ORDER DATED 03/06/2021 IN IA
1/21 in WA 727/2021)
BY SRI.GILBERT GEORGE CORREYA, STANDING COUNSEL FOR R1 & R2.
SRI.SAIGI JACOB PALATTI, SENIOR GOVERNMENT PLEADER FOR R3 & R4.
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 further proceedings, with respect to the continuation of
disciplinary proceedings which has been initiated as per Exhibit-P3,
pending the disposal of writ petition.
This Writ Appeal again coming on for orders on 02.08.2021 upon
perusing the appeal memorandum,and this court's order dated 17.05.2021 the
court on the same day passed the following:
P.T.O.
WA No.727/2021 3/9
EXT.P3:TRUE COPY OF THE MEMO OF CHARGES DATED 26.02.2020.
WA No.727/2021 4/9
ALEXANDER THOMAS & A. BADHARUDEEN, JJ.
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Writ Appeal No.727/2021
(Arising out of the judgment in W.P.(C)No.23480/2020 )
================================
Dated this the 2nd day of August, 2021
ORDER
Heard Sri.Jawahar Jose, learned Counsel appearing for the appellant/petitioner in the W.P.(C), Sri.Gilbert George Correya, learned Standing Counsel for the Kerala Co-operative Bank, appearing respondents 1 & 2 and Sri.Saigi Jacob Palatti, learned Senior Government Pleader appearing for respondents 3 & 4.
2. The learned Counsel for the appellant seeks interim relief of stay of further proceedings pursuant to the continuation of disciplinary proceedings initiated as per Ext.P3, memo of charges dated 26.2.2020 issued by the respondent erstwhile employer. While in service, the appellant had been served with Ext.P3 memo of charges dated 26.2.2020 issued by the then employer (Kasargode District Co-operative Bank) which was subsequently merged with the respondent Kerala State Co-operative Bank with effect from 29.12.2020. The appellant has retired from service on 30.5.2020. The terminal benefits due to the appellant consequent to his retirement have been withheld by respondents 1 & 2 on the ground that disciplinary proceedings in pursuance of Ext.P3 memo WA No.727/2021 5/9 Writ Appeal No.727/2021 2 of charges have not been finalised.
3. Rule 198(7) of the Kerala Co-operative Societies Rules reads as follows:
"Rule 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 loss caused to the society, by negligence or breach of orders or otherwise;
(f) Reduction to a lower rank;
(g) Compulsory retirement;
(h) Dismissal from service.
xxx xxx xxx
xxx xxx xxx
(7) In the event of any pendancy of disciplinary proceedings against any employee of a co-operative society or any co-operative institution pursuant to any charge of grave misconduct, irregularity, corruption or other charge involving moral turpitude, no retirement benefits shall be sanctioned to such employee or retired employee and in case of sanctioning of any retirement benefits to any such employee or retired employee, the name and designation of the sanctioning authority together with the reason for such sanctioning shall be recorded by the sanctioning authority by himself and such authority shall be held responsible for any loss to the society owing to such sanctioning of retirement benefits if found that such sanctioning was unwarranted."
4. It is urged by the learned Counsel for the appellant that there are no provisions anywhere in the Kerala Co-operative Society Rules or in the bye-laws or in the service regulations of the respondent bank, which envisage that disciplinary proceedings in WA No.727/2021 6/9 Writ Appeal No.727/2021 3 pursuance of memo of charges issued to an incumbent prior to retirement, can be continued even after retirement, if the same has not been finalised before his/her retirement. That such provisions are not akin to that in Rule 3 Part III KSR or Rule (9) CCS (Pension) Rules and such provisions permitting continuance of the disciplinary proceedings even after retirement of the employee as envisaged in Rule 3 Part III KSR, which govern the State Government Employees or Rule 9 of CCS (Pension) Rules, which governs Central Government employees or in the CDA Rules as dealt with in Rabindranatha Choubey Chairman-cum- Managing Director, Mahanadi coalfields Limited v. Rabindranath Choubey (2020 SCC Online SC 470)] are not available in the instant case. Hence it is urged that the jural relationship of the employer and employee has snapped with the retirement of the employee and that therefore, there is no jurisdiction to the erstwhile employer to continue any disciplinary proceedings after the retirement of the employee, if such disciplinary proceedings pursuant to memo of charges issued prior to the retirement have not been finalised before the retirement of the incumbent concerned.
WA No.727/2021 7/9Writ Appeal No.727/2021 4
5. The said submission is strongly refuted by Sri.Gilbert George Correya, learned Standing Counsel appearing for the Kerala State Co-operative Bank. He would pointedly argue that sub rule 7 of Rule 198, which is the statutory rule framed by the State Government, in exercise of the rule making powers conferred as per the Kerala Co-operative Societies Act would throw light to that aspect and it is clearly stipulated therein that no retirement benefits shall be sanctioned to such employee or retired employee, who has retired during the pendency of any disciplinary proceedings and further that the name and designation of the sanctioning authority together with reasons for such sanctioning retirement benefits shall be recorded by the sanctioning authority and such authority shall be held responsible for any loss to the society owing to such sanctioning of the retirement benefits, if it is later found that such sanctioning was unwarranted, etc.
6. After hearing both sides, it appears that there are no provisions akin or pari materia to the provisions as in Rule 3 Part III KSR or Rule 9 of the CCS (Pension) or the CDA rules dealt with in Mahanadi coalfields Limited's Case supra. Hence the petitioner has made out a strong prima facie case that, in the WA No.727/2021 8/9 Writ Appeal No.727/2021 5 absence of any such enabling provisions, continuance of disciplinary proceedings after the retirement of the incumbent concerned may be without jurisdiction.
7. In the light of the abovesaid aspects, it is ordered that continuance of the disciplinary proceedings in pursuance of Ext.P3 memo of charges dated 26.2.2020 issued by the respondent bank shall remain stayed and shall be kept in abeyance. This order will be in force for a period of one month. The issue as to whether the terminal benefits due to the petitioner have to be released and if so when, will be decided later. However, it is made clear that the pendency of this Writ Appeal will not stand in the way of the respondent-State Co-operative Bank in initiating Arbitration Reference Case (ARC) before the competent authority in terms of Section 69 of the Kerala Co-operative Societies Act seeking for recovery of any alleged pecuniary loss said to have been sustained by the Bank on account of the alleged acts of omission or commission of the appellant and if so preferred, the said proceedings may be proceeded strictly in accordance with law.
8. The learned Senior Government Pleader submits that this Court had ordered that the stand of the State of Kerala and the WA No.727/2021 9/9 Writ Appeal No.727/2021 6 department should also have been made known to this Court on the present issue and that some more time is required in the matter. Time granted to both sides. All parties concerned will get ready for early disposal of the main matter in the appeal, preferably by the next posting date or immediately thereafter.
List this matter on 25.9.2021.
H/O. Sd/ ALEXANDER THOMAS, JUDGE sd/ A. BADHARUDEEN, JUDGE jm/ 02-08-2021 /True Copy/ Assistant Registrar