Kerala High Court
Vineetha T.V vs The State Of Kerala on 16 August, 2022
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 16TH DAY OF AUGUST 2022 / 25TH SRAVANA, 1944
WP(C) NO. 24370 OF 2022
PETITIONER:
VINEETHA T.V
AGED 38 YEARS
WIFE OF RAJESH M., SENIOR CLERK (UNDER ORDERS OF
DISMISSAL), THRIKKODITHANAM SERVICE CO-OPERATIVE BANK
LTD. NO. 178, P.O. THRIKKODITHANAM, CHANGANACHERRY,
KOTTAYAM DISTRICT-686105, (RESIDING AT ASHARIPARAMBIL,
P.O. THRIKKODITHANAM, CHANGANACHERRY, KOTTAYAM
DISTRICT-686105).
BY ADVS.
V.A.MUHAMMED
V.RAJASEKHARAN NAIR
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT, CO-
OPERATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-
695 001.
2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES
SAHAKARANA BHAVAN, JAGATHY, THIRUVANANTHAPURAM-695 014.
3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)
CIVIL STATION, KOTTAYAM DISTRICT-686 001.
4 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL), HANGANACHERRY, KOTTAYAM DISTRICT-686 101.
5 THE PRESIDENT
THRIKKODITHANAM SERVICE CO-OPERATIVE BANK LTD. NO. 178,
P.O. THRIKKODITHANAM, CHANGANACHERRY, KOTTAYAM
DISTRICT-686105.
6 THE THRIKKODITHANAM SERVICE CO-OPERATIVE BANK LTD. NO.
178, REPRESENTED BY ITS SECRETARY, P.O.
THRIKKODITHANAM, CHANGANACHERRY, KOTTAYAM DISTRICT-
686105.
WP(C) NO. 24370 OF 2022
2
BY ADVS.
GEORGE POONTHOTTAM (SR.)
NISHA GEORGE
SMT.PARVATHY.K GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 24370 OF 2022
3
JUDGMENT
The petitioner is working as a Senior Clerk in the services of "Thrikkodithanam Service Co-operative Bank" (hereinafter referred to as "Society" for short) and she has been proceeded disciplinary by them on certain very grievous allegations. She concedes that disciplinary action has been initiated and the Statutory Disciplinary Committee has already entered a finding of guilt against her; but alleges that Ext.P7 order issued by the President of the Society, dismissing her from service, is illegal and unlawful and contrary to the specific mandate of Rule 198 of the Kerala Co-operative Societies Rules ("Rules" for short).
2. The petitioner, thus prays that Ext.P7 be set aside and that the entire disciplinary action be declared to be non est. WP(C) NO. 24370 OF 2022 4
3. I have heard Smt.P.A.Jenzia - learned counsel for the petitioner; Sri.George Poonthottam - learned Senior Counsel, instructed by Sri.Ann Maria Francis appearing for the Society and its President and Smt.Parvathy.K - learned Government Pleader appearing for the official respondents.
4. Sri.George Poonthottam - learned Senior Counsel, argued that Ext.P7 is not an independent exercise of power by the President of the Society, but that he has only communicated the decision taken by the Disciplinary Sub Committee. He, however, conceded, to a pointed question from this Court, that the punishment for removal from service can be inflicted upon the petitioner only by the Statutory Sub Committee; but argued that Ext.P7 would disclose that it is only a communication of their decision by the President and nothing else. He thus prayed WP(C) NO. 24370 OF 2022 5 that this writ petition be dismissed; trying to further impress upon me that the allegations against the petitioner are so grave that even if this Court is to find otherwise, the discretionary exercise of jurisdiction may not be initiated.
5. The afore submissions would make it ineluctable that the sole germane question is whether Ext.P7 has been issued by a person competent to have done so.
6. It is conceded before me that the punishment for removal from service can be imposed against the petitioner only by the Sub Committee. It is the case of the Society, as argued by its learned Senior Counsel, that Ext.P7 is only the communication of such a decision and he relies on various documents produced by his client, along with their counter affidavit, including Ext.R6(f).
7. However, when one reads Ext.R6(f), it WP(C) NO. 24370 OF 2022 6 becomes manifest that it only records the decision of the Managing Committee of the Society to entrust the disciplinary action against the petitioner to a Sub Committee. It does not reflect that the Sub Committee had taken a decision already.
8. Therefore, the only question is whether Ext.P7 is competent or otherwise. If Ext.P7 is not competent, then, certainly, this Court will be obliged to set it aside; while, on the other, if it is, then, the petitioner will have to invoke her available alternative remedies.
9. When one examines Ext.P7, it is clear that it starts with the heading "proceedings of the President". Thereafter, he signs it in the capacity as the President and records, in its 3rd page, that he has decided that the petitioner is deserving a harsh punishment of being removed from service and that the WP(C) NO. 24370 OF 2022 7 decision of the Bank - to impose such punishment - taken by them provisionally, is being confirmed by him. The specific words used in Ext.P7 to such effect will require a full reading, so as not to lose its meaning and I, therefore, extract it as under:
"തന്മൂലലം സഹകരണ സലംഘലം നനിയമതനിൽ പ്രതനിപപാദനിച്ച ഏറ്റവലം കടുത ശനിക്ഷകക വനിനനീത റ്റനി.വനി അർഹയപാണണനക ഞപാൻ കപാണുന. ആയതനിനപാൽ 25-06-2022 മുതൽ പ്രപാബലല്യതനിൽ വരതക വനിധലം വനിനനീത റ്റനി.വനിണയ തൃണകപാടനിതപാനലം സർവനീസക സഹകരണ ബപാങക കനിപലം നമർ 178 ണന്റെ സസവനതനിൽ നനിനലം പനിരനിച്ചു വനിടുവപാൻ തപാൽകപാലനികമപായനി ഞപാൻ എടുത തനീരുമപാനലം ഇതനിനപാൽ സനിരണപ്പെടുതനി ഉതരവപാകുന. ഈ തനീരുമപാനതനിസനൽ വനിനനീത റ്റനി.വനിയക എണന്തെങനിലലം ആസക്ഷപലം ഉണണ്ടെങനിൽ 90 ദനിവസതനിനകലം അകപാരല്യലം കപാണനിച്ചക അച്ചടക ഉപസമനിതനിസകപാ ബപാങക ഭരണസമനിതനിസകപാ അപ്പെനീൽ സബപാധനിപ്പെനികപാവനതപാണക.
10. The afore extracted portion would also show that President of the Society makes it limpid that "the petitioner can appeal against the same either to the Sub Committee or to the Managing Committee of the Society".
11. The afore would render it irrefragable that Ext.P7 has been issued by the President of the Society, as if it is his own proceedings, which is further incontestable WP(C) NO. 24370 OF 2022 8 because he says that it is his decision to impose the said punishment and that he is confirming an earlier provisional decision taken by the Managing Committee to such effect.
12. They further record in Ext.P7, that an appeal can be filed by the petitioner against it to the Managing Committee or the Disciplinary Sub Committee of the Society seals its fate.
13. Viewed in that perspective, the only other question is whether this Court will be justified in interfering with Ext.P7, when there is an alternative statutory remedy available to the petitioner against it.
14. I am afraid that I cannot find favour with Sri.George Poonthottam - learned Senior Counsel, in this account either because, for one, Ext.P7 has been issued by an incompetent Authority; and, for the second, the decision WP(C) NO. 24370 OF 2022 9 therein is not that of the Managing Committee, but that of the President himself, which is manifest from the afore extracted record.
15. Therefore, the mere fact that petitioner may obtain an alternative remedy against Ext.P7 will not fetter this Court from exercising jurisdiction under Article 226 of the Constitution of India, because law is now well settled - without requirement for restatement - that an order which is null and void can certainly be assailed by the person obtaining cause against him.
16. At this time, Sri.George Poonthottam intervened to say that his client also has a corollary argument that Ext.P7 cannot be subjected to judicial review. Apart from the fact that I cannot fully understand the purport of this argument, it remains that the merits of Ext.P7 have not been and will not be looked into by this Court at this stage; and I WP(C) NO. 24370 OF 2022 10 clarify that I have found against it only because it has been issued by an incompetent Authority.
In the afore circumstances, I order this writ petition and set aside Ext.P7; however, leaving full liberty to the competent Authority - be that the Disciplinary Committee or the Managing Committee, as the case may be
- to continue with further proceedings against the petitioner as per law, after following due procedure and after affording her necessary opportunities as the law mandates.
Sd/-
DEVAN RAMACHANDRAN JUDGE SAS WP(C) NO. 24370 OF 2022 11 APPENDIX OF WP(C) 24370/2022 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER NO. 10/21 DATED 16.04.2021 OF THE PRESIDENT OF THE 5TH RESPONDENT BANK.
Exhibit P2 TRUE COPY OF THE MEMO OF CHARGES NO. 99/21 ALONG WITH STATEMENT OF ALLEGATIONS DATED 27.08.2021.
Exhibit P3 TRUE COPY OF THE DEFENCE STATEMENT OF THE PETITIONER DATED 17.09.2021.
Exhibit P4 TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY ADV. ARUN P.S. DATED 23.03.2022. Exhibit P5 TRUE COPY OF THE ORDER OF THE PRESIDENT OF THE BANK DATED 25.06.2022.
Exhibit P6 TRUE COPY OF THE REPLY OF THE PETITIONER DATED 04.07.2022.
Exhibit P7 TRUE COPY OF THE ORDER NO. 49/22 DATED 12.07.2022 OF THE PRESIDENT OF THE BANK. Exhibit P8 TRUE COPY OF THE DECISION REPORTED IN 2009 (4) KHC 58 (JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), MALAPPURAM V. P. KRISHNAN NAIR (2009 (4) KHC 58) (DECIDED ON 02.07.2009).
Exhibit P9 TRUE COPY OF THE DECISION REPORTED IN 2018 (1) KHC 515 (THUMBOOR SERVICE CO-OP. BANK, THRISSUR AND ANOTHER V. N.C. SOBHY AND ANOTHER DECIDED ON 20.12.2017. Exhibit P10 TRUE COPY OF THE DECISION REPORTED IN 1996 KHC 25 (PRESIDENT, PUDUPARIYARAM SERVICE CO- OP. SOCIETY V. RUGMINI AMMA AND OTHERS. RESPONDENTS' EXHIBITS Exhibit R6(A) TRUE COPY OF THE REPRESENTATION SUBMITTED WP(C) NO. 24370 OF 2022 12 BEFORE THE JOINT REGISTRAR DATED 17/04/2021 BY THE SECRETARY Exhibit R6(B) TRUE COPY OF THE COMPLAINT DATED 20/04/2021 SUBMITTED BY SMT. INDIRAMMA TO THE SECRETARY Exhibit R6(C) TRUE COPY OF THE SHOW CAUSE NOTICE DATED 26/04/2021 ISSUED TO THE PETITIONER BY THE BANK Exhibit R6(D) TRUE COPY OF THE REPLY SUBMITTED BY THE JUNIOR CLERK DATED 26/04/2021 TO THE SECRETARY OF THE BANK Exhibit R6(E) TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO THE SHOW CAUSE NOTICE DATED 03/05/2021 Exhibit R6(F) TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE MEETING DATED 05/05/2021 Exhibit R6(G) TRUE COPY OF THE NOTICE ISSUED BY THE CHAIRMAN OF THE SUB COMMITTEE DATED 26/05/2021 Exhibit R6(H) TRUE COPY OF THE REPORT SUBMITTED BY THE DISCIPLINARY SUB COMMITTEE BEFORE THE MANAGING COMMITTEE DATED 28/06/2021 Exhibit R6(I) TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER DATED 23/07/2021 TO THE SECRETARY Exhibit R6(J) TRUE COPY OF THE OBJECTION DATED 04/07/2022 SUBMITTED BY THE PETITIONER