Kerala High Court
Chemmanuthy Service Co-Operative Bank ... vs The Kerala Co-Operative Tribunal on 30 November, 2011
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 19TH DAY OF DECEMBER 2013/28TH AGRAHAYANA, 1935
WP(C).No. 4812 of 2012 (B)
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AGAINST THE ORDER/JUDGMENT IN A.NO. 7/2011 of KERALA CO-OP.TRIBUNAL,
THIRUVANANTHAPURAM. DATED 30-11-2011
PETITIONERS:
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1. CHEMMANUTHY SERVICE CO-OPERATIVE BANK LTD. AGED 52 YEARS
NO T 328.REP.BY ITS SECRETAYR, PANAYARA P.O., VARKALA
THIRUVANANTHAPURAM DIST PIN-695145
2. PRESIDENT
CHIEMMARUTHY SERVICE CO-OPERATIVE BANK LTD NO T328
PANAYARA P.O., VARKALA, THIRUVANANTHAPURAM PIN-695145
BY ADV. SRI.M.RAJAGOPALAN NAIR
RESPONDENTS:
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1. THE KERALA CO-OPERATIVE TRIBUNAL
REP.BY ITS SECRETARY
NEAR STATE OLIMPIC ASSOCIATION BUILDINGS
BAKERY JUNCTION, THIRUVANNATHAPURAM PIN-695001
2. CO-OPERATIVE ARBITRATIN COURT,
REP.BY ITS SECRETARY
NEAR KAITHAMUKKU TELEPHONE EXCHANGE OFFICE
KAITHAMUKKU P.O., THIRUVANANTHAPURAM, PIN-695024
3. G.SURENDRAN, G.S.LAND
PRALAYAGIRI THOKKODU P.O.VADASSERIKONAM, VARKALA
THIRUVANANTHAPURAM DISTRICT PIN-695141
R3 BY ADV. SRI.GEORGE POONTHOTTAM
BY SR.GOVERNMENT PLEADER SRI.RAMAPRASAD UNNI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
14/08/2013, THE COURT ON 19/12/2013 DELIVERED THE FOLLOWING:
APPENDIX TO W.P.C.NO.4812 OF 2012
PETITIONER'S EXHIBITS
EXT.P1:- TRUE COPY OF THE CHARGES WITH STATEMENT OF ALLEGATION
EXT.P2:- TRUE COPY OF THE REPORT OF THE ENQUIRY OFFICER IN ENQUIRY
NO 1/2008
EXT.P3:- TRUE COPY OF THE DECISION OF SUB-COOMMITTEE DTD 26/12/08
EXT.P4:- TRUE COPY OF THE ORDER OF APPEAL COMMITTEE DTD 24/1/2009
EXT.P5:- TRUE COPY OF THE ORDER DTD 24/2/2009 IN WPC NO .3589/2009
EXT.P6:- TRUE COPY OF THE JUDGMENT DTD 12/6/2009 IN WPC NO
3589/2009
EXT.P7:- TRUE COPY OF THE LIST OF DOCUMENT IN A.R.C.NO 27/07 FILED
BEFORE THE 2ND RESPONDENT DTD 20/2/2008
EXT.P8:- TRUE COPY OF THE LIST OF DUCUMENT IN A.R.C.NO.27/07 DTD
28/1/2010
EXT.P9:- TRUE COPYOF THE AWARD OF 2ND RESPONDENT DTD 31/12/2010 IN
ARC.NO.27/07
EXT.P10:- TRUE COPY OF THE APPEAL NO 7/10 FILED BEFORE THE
HONOURABLE KERALA CO-OPERATIVE TRIBUNAL DTD 22/2/2011.
EXT.P11:- TRUE COPY OF THE JUDGMENT IN APPEAL NO.7/2010 OF THE IST
RESPONDENT DTD 30/11/2011
EXT.P12:- TRUE COPY OF THE AWARD IN ARC NO 109/07 DTD 23/5/2008 OF
THE 2ND RESPONDENT.
EXT.P13:- TRUE COPY OF THE AWARD IN ARC NO 83/07 DTD 9/4/2009 OF
THE 2ND RESPONDENT.
EXT.P14:- TRUE COPY OF THE AWARD DTD 13/12/2010 OF THE 2ND
RESPONDENT.
EXT.P15:- TRUE COPY OF THE RELEVANT PORTION OF BY-LAW.
RESPONDENTS' EXHIBITS
NIL
TRUE COPY PA TO JUDGE
A.M.SHAFFIQUE, J
* * * * * * * * * * * * *
W.P.C.No.4812 of 2012
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Dated this the 19th day of December 2013
J U D G M E N T
This writ petition is filed challenging Exts.P9 and P11. Ext.P9 is an order passed by the Co-operative Arbitration court in ARC No.27 of 2009 setting aside the punishment imposed on the third respondent herein and directing the petitioner bank to reinstate the 3rd respondent in service with all service benefits including back wages from the date of suspension. Ext.P7 is the judgment of the Kerala Co- operative Tribunal in an appeal filed by the petitioners herein against the aforesaid order passed by the Arbitration Court.
2. The third respondent herein was an employee in the service of the first petitioner bank and he was dismissed from service following a domestic enquiry. However the punishment was later reduced and he was imposed a punishment of barring increments and he was directed to W.P.C.No.4812/2012 2 deposit the misappropriated amount. He deposited the amount and joined the bank as Internal Auditor. After one year of such punishment he was again suspended from service with effect from 14/06/2007 as per Ext.P1 memo of charges. An enquiry was conducted by an Enquiry Officer appointed by the bank and Ext.P2 is the said report. The first and fifth charges were proved against the employee concerned and other charges were not proved. Thereafter, after issuing notice to the third respondent it was decided to dismiss him from service. Though an appeal was filed before the Managing Committee, the same came to be rejected.
3. Challenging the above dismissal, the 3rd respondent had moved the Arbitration Court. While impugning the order of dismissal from service, the third respondent inter alia contended that he was kept under suspension for more than 1= years without permission from the Registrar. It is contended that the charges were vague and there is no evidence to prove the charges. That apart, W.P.C.No.4812/2012 3 the punishment imposed is disproportionate to the proved charges. It is also contended that the appeal had to be heard by the Managing Committee excluding the sub Committee members. The appeal was heard by the Appeal Committee consisting of four Managing Committee members. The total number of members of the Managing Committee is nine and quorum is 50%. Insofar as there was no quorum, the decision taken by the Appeal Committee is void.
4. Before the Arbitration Court, the petitioners inter alia contended that the punishment was imposed after complying with the procedure prescribed for taking disciplinary action against the delinquent officer. Insofar as the principles of natural Justice had been complied with, there is no reason to interfere with the punishment imposed on the delinquent officer. The sub Committee imposed punishment as per the Rules and based on the findings in the enquiry. The same was sent to the third respondent for his objection, he had submitted his explanation and it is W.P.C.No.4812/2012 4 after considering the said explanation that the order had been passed. It is contended that there is no illegality in the order of dismissal or with respect to the order passed by the applicant.
5. Management as well as the delinquent did not adduce any oral evidence before the Arbitration Court, whereas they relied upon the documents submitted by either side. The Arbitration Court found that though the domestic inquiry file was produced and marked, since the Enquiry Officer was not examined despite notice being issued on several postings, no oral evidence was adduced by the management to prove the enquiry report. It is observed that it is the duty of the management to prove that the punishment given is based on the findings of a valid domestic enquiry and since the management failed to prove the said fact, it has to be held that the enquiry conducted against the third respondent is vitiated and hence the findings of the enquiry officer is perverse. W.P.C.No.4812/2012 5
6. In regard to the consideration of appeal by the Appellate Committee it was found that the Managing Committee consists of nine members and disciplinary action was taken by a sub Committee consisting of two members. Therefore the Appellate Committee available as per Rule 198(4) is seven members, but during the hearing of the appeal there were only four members. Hence it was held that there was no proper quorum to decide the appeal. It is on the above findings that the impugned order is passed.
7. The Tribunal, while considering the appeal, observed that though summons was issued to the Enquiry Officer at the instance of the petitioners, he did not appear for giving evidence and despite granting sufficient opportunity no evidence was adduced. It is found that the burden of proof is on the management to prove the report of domestic enquiry by adducing cogent and convincing evidence. In the absence of such evidence the enquiry report cannot be accepted. The Tribunal concurred with the W.P.C.No.4812/2012 6 view expressed by the Arbitration Court.
8. Having regard to the nature of contentions urged, the short question to be considered is whether there is any illegality or irregularity in the award passed by the Arbitration Court and confirmation of the same by the Tribunal.
9. The first issue is whether the Arbitration Court was justified in finding that the enquiry report was not proved. In a case where the delinquent challenges the findings of the enquiry report, on the allegation that there was violation of principles of natural Justice or on any other illegality, the management is under obligation to adduce evidence. In the above case it appears that though notice was issued by the Arbitration Court the Enquiry Officer did not appear. In fact the management ought to have taken steps to make available the presence of the enquiry officer, by even issuing a warrant from the Arbitration Court. No such steps are seen taken. It is argued by the learned counsel for the petitioners W.P.C.No.4812/2012 7 that when the enquiry report was produced before court, it is for the third respondent to prove by adducing oral evidence that the enquiry was not conducted properly. The nature of evidence to be adduced in a case depends upon the issues involved in the matter. The issues raised by the Arbitration Court are :
(i) Whether the domestic enquiry conducted is vitiated or not.
(ii) Whether the findings of the domestic enquiry are perverse or not.
10. Having regard to the aforesaid issues, the evidence that has to be adduced by the management is to prove the domestic enquiry report. Since the validity of the enquiry is under challenge, it is for the person who relies upon the said report to prove the said fact. Since the enquiry report has not been proved, it was possible for the management to adduce other evidence to support the findings in the enquiry. No attempt has been made by the W.P.C.No.4812/2012 8 management to adduce any such evidence. Hence it is not possible for this Court to come to a conclusion that the management has proved the domestic enquiry report. If there is failure on the part of the Management to prove the domestic enquiry report and no attempt has been made to adduce independent evidence to substantiate the punishment imposed on the delinquent, I do not think that the authorities below have committed any illegality in arriving at the said findings.
11. The learned counsel for the petitioners requested for a further opportunity to adduce evidence in the matter. Though the aforesaid request is opposed by the learned counsel appearing for the delinquent, it has to be considered whether an opportunity is to be granted to the petitioners for adducing evidence.
12. Though several charges were framed against the delinquent, the finding of fact and proof is only with reference to charges 1 and 5. The first charge is regarding W.P.C.No.4812/2012 9 unauthorised absence from 14/06/2007 onwards. The second charge was that the delinquent was conducting the same business of the bank in the name of his wife and brother and that by indulging in chitty transaction and blade mafia he had acquired substantial wealth thereby causing loss of reputation to the bank.
13. The charges are serious in nature and it is relevant to note that the management had taken steps for examining the Enquiry Officer. When serious allegations are raised against an officer and when the Enquiry Officer has come to a conclusion that the charges are proved, the management should be keen enough to adduce evidence in the matter. In fact, the management did not show sufficient earnestness in prosecuting the matter. But having regard to the fact that the charges are of a serious nature, I am of the view that one more opportunity should be granted to the management to adduce evidence.
W.P.C.No.4812/2012 10
14. The authorities below has also found that the Appellate Committee constituted as per Rule 198(4) had no quorum. If there was no quorum, the Arbitration Court and the Tribunal could have relegate the matter back to the Appellate Committee. Absence of quorum is only an irregularity and cannot be a reason for setting aside the punishment. It was always open for the authorities to send back the matter to the appellate authority with their observation on the merits of the case for passing a proper order of punishment. In fact, as per Rule 198(4) of the Co- operative Societies Rules, an appeal shall lie to the Executive Committee/Board of Management. It is always open for the Arbitration Court to direct the Executive Committee or the Board of Management as the case may be to take a fresh decision in the matter in relation to the punishment, in a properly constituted committee. W.P.C.No.4812/2012 11
In the result, this writ petition is disposed as follows:
i) The impugned orders at Exts.P9 and P11 are set aside.
ii) A.R.C.No.27 of 2009 is restored to file and the petitioners and the 3rd respondent are given an opportunity to adduce evidence in the matter, and the matter shall be considered afresh.
iii) The entire proceedings shall be completed within a period of six months.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr