Kerala High Court
Joshy Varghese vs Kodanchery Service Co-Operative Bank on 21 November, 2019
Equivalent citations: AIRONLINE 2019 KER 623
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA,
1941
WP(C).No.22228 OF 2019(C)
PETITIONER/S:
JOSHY VARGHESE
AGED 50 YEARS
VETTUKALLEL HOUSE, KANNOTH P.O., KODANCHERRY,
KOZHIKODE-673 580.
BY ADVS.
SRI.P.N.MOHANAN
SRI.C.P.SABARI
SMT.AMRUTHA SURESH
RESPONDENT/S:
1 KODANCHERY SERVICE CO-OPERATIVE BANK
LTD.NO.F.1762
REPRESENTED BY ITS SECRETARY, KODANCHERY,
KOZHIKODE-673 580.
2 THE MANAGING COMMITTEE OF KODANCHERY SERVICE
CO-OPERATIVE BANK LTD.NO.F.1762,
REPRESENTED BY ITS PRESIDENT, KODANCHERY,
KOZHIKODE-673 580.
3 SUB COMMITTE OF KODANCHERY SERVICE CO-OPERATIVE
BANK LTD.NO.F.1762,
REPRESENTED BY ITS CONVENER, KODANCHERY,
KOZHIKODE-673 580.
4 ADDL.R4. THE REGISTRAR OF CO-OPERATIVE
SOCIETIES,
THIRUVANANTHAPURAM.
Wpc 22228/2019
-:2:-
5 ADDL.R5. THE STATE OF KERALA,
REPRESENTED BY SECRETARY, DEPARTMENT OF CO-
OPERATION, THIRUVANANTHAPURAM. ADDL.R4 AND R5
ARE SUO MOTU IMPLEADED AS PER ORDER DATED
18/09/2019 IN WP(C)NO.22228/2019.
R1 TO R3 BY ADV. SRI.P.C.SASIDHARAN
C S SHEEJA SR GP FOR R4 & R5
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04-11-2019, THE COURT ON 21-11-2019 DELIVERED THE FOLLOWING:
Wpc 22228/2019
JUDGMENT
Dated this the 21st day of November 2019 This writ petition is filed by an employee of the first respondent/co-operative society challenging his dismissal from service pursuant to disciplinary proceedings.
2. The petitioner, in fact, has an efficacious alternate remedy under Section 69 of Kerala Co-operative Societies Act, 1969. However, this Court is not precluded from examining the dismissal if it is pointed out that such dismissal was in violation of the statutory provisions or bye-laws of the society. If the disputed question involved is a mixed question of fact and law, this Court should relegate the parties to approach the authorities under Section 69 of the Act. Therefore, the scope of enquiry in this writ petition is only in regard to the violation of the statutory provisions if any, or any violation of the bye- laws of the Society.
Wpc 22228/2019-:2:-
3. In this case, the petitioner had pointed out many violations. The first of the violations is in regard to the charge memo. According to the petitioner, the charge memo was issued by the sub committee constituted as a disciplinary committee to inquire into the charges against the employer. The second is in regard to her dismissal from service without issuing show cause notice as against the proposed imposition of the penalty. The third is in regard to change in the composition of the committee before the conclusion of the proceedings. The fourth is with respect to presenting officer becoming a management witness. The fifth is legality of a decision in an appeal of the committee without quorum. The sixth is in relation to a co- delinquent employee who was reinstated in service. Therefore, the petitioner alleges discrimination in regard to imposition of penalty. The seventh is, giving retrospective effect to penalty of dismissal from the service.
4. Heard the learned counsel for the petitioner and the learned counsel for the respondent Society. Wpc 22228/2019 -:3:-
5. The learned counsel for the Bank resisted the challenges raised by the petitioner on the ground that these challenges have been raised for the first time through a writ petition. Further, it is argued that mixed question of fact and law is involved in this matter and therefore, that the petitioner should seek alternate remedy.
6. Disciplinary action as against an employee of a co-operative society is covered by the statutory provisions referable under Rule 198 of Kerala Co-operative Society Rules, 1969. It is appropriate to refer Rule 198 which reads thus:
"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 negligences or breach of orders or otherwise;
(f) Reduction to a lower rank;
(g) Compulsory retirement;
(h) Dismissal from service.
(2) No kind of punishment shall be awarded to an employee unless he has been informed in writing of Wpc 22228/2019 -:4:- the grounds on which it is proposed to take action against and he has been afforded an opportunity including a personal hearing to defend himself.
Every order awarding punishment shall be communicated to the employee concerned in writing stating the grounds on which the punishment has been awarded. (2A) The committee of a society shall constitute a disciplinary sub-committee consisting of not more than three of its members,of whom one shall be designated as Chairman, but the President of the committee of the society shall not be a member in the disciplinary sub-committee.
(2B) The disciplinary sub-committee so constituted shall inquire into the charges against the employee either by themselves or by engaging an external agency.
(3) The authority competent to impose the various penalties on different categories of employees shall be as shown in the table below:-
Authority competent to impose Rank of the employee Penalties under (a) to (c) Penalties under (d) to (h) Secretary/Manager or other Chief President/Chairman Sub-Committee/ Executive Executive Officer and '[all employees Committee holding posts higher than that of Sr.Clerk/Sr. Assistant/I Grade Assistant/Equivalent other employees with same or identical scale of pay] All other employees Secretary/Manager or other President Chief Executive Officer.
(4) An appeal shall lie against every order imposing a penalty to the competent appellate authority, shown in the table below:-
Authority competent to dispose of appeal against Rank of the appellant Penalties under (a) to (c) Penalties under (d) to (h) Secretary/Manager or other Chief Executive Committee or Board of Management Executive Officer and '[all employees Board of Management holding posts higher than that of Sr.Clerk/Sr. Assistant/I Grade Assistant/Equivalent other employees with same or identical scale of pay] All other employees President Executive Committee / Board of Management Wpc 22228/2019 -:5:- (5) No appeal shall be entertained if it is not preferred within a period of three months from the date of the order imposing the penalty.
[Provided that where the penalties are imposed on employee by an administrator or an administrative committee,such employees can file appeal before the forthcoming elected committee and in such cases the restriction of three months shall not be applicable]. (6) An authority competent to appoint an employee may suspend him pending enquiry into serious charges against such employee. No employee shall however be kept under suspension for a period exceeding six months at a time. In no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar. [An employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act,1972(27 of 1973)].
[Provided that an employee not coming under the purview of the Kerala Payment of Subsistence Allowance Act,1972(27 of 1973)shall be entitled to subsistence allowance at the rate admissible to State Government Employees as prescribed under the Kerala Service Rules.] (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.
Wpc 22228/2019-:6:-
(8) In respect of all employees save the Chief Executive Officer of a society,no retirement benefits shall be sanctioned and disbursed until after the due issuance of a Non-liability Certificate by the Chief Executive Officer and approval of the same by the committee of the society within thirty days from the date of retirement of such employee. In the event of the retirement of the Chief Executive Officer,the Non-liability Certificate shall be issued by the committee of the society. For any loss to the society due to the non adherence of the forgoing procedure, the Chief Executive Officer along with the committee of the society shall be held responsible collectively and severally in respect of the issuance of Non- liability Certificate to any employee other than the Chief Executive Officer and the members of the committee shall be held collectively and severally responsible for the issuance of Non-Liability Certificate to the Chief Executive Officer".
7. The mandate under Rule 198(2) to take action against an employee is vested with the Managing Committee. The Managing Committee appointed under Section 20 of Act is entrusted with the power to manage the affairs of the society. The Managing Committee is the delegate of the general body. Therefore, they can delegate their function only if the bye-laws or statutory provisions confer power of delegation. It is to be noted that under Section 27 of the Act, the final authority of the society is vested with the general body of the members.
Wpc 22228/2019-:7:-
8. Rule 198(2B) of the Rules clearly points out the nature of the power conferred upon the disciplinary committee. This Committee is the delegate of the Managing Committee to inquire into the charges into the employees. Thus, it is clear that the Managing Committee alone has power to issue a charge memo. No power is conferred upon the Managing Committee to delegate this function to a sub committee which is constituted as a disciplinary committee. The authority of the sub committee is limited to conducting an inquiry regarding the charges framed by the Managing Committee as against the employees. In that view of the matter, the Managing Committee alone can issue the memo of to an employee and not a sub committee. Even if this power is delegated to a sub committee, that delegation is invalid and goes to the root of disciplinary inquiry vitiating the entire disciplinary proceedings.
9. In this case, admittedly, charge memo to the petitioner was issued by the disciplinary committee. It has no power or authority to issue charge memo. Any inquiry conducted by the disciplinary committee based on a charge Wpc 22228/2019 -:8:- memo issued by that committee is legally invalid and no action can be taken based on such invalid inquiry even if such inquiry proceedings have been ratified by the Managing Committee subsequently. The power of the disciplinary committee flows from statutory provisions. Without backing of statutory provisions, the sub committee cannot lay any charges against an employee.
10. The participation of the employee in the inquiry and not raising any objection in regard to the authority of a disciplinary committee in issuing charge, cannot confer an authority to the disciplinary committee. As noted above, the power of the disciplinary committee emanates from the statutory provisions. Therefore there is no estoppel against invalid proceedings without jurisdiction.
11. In the light of discussions as above, all other grounds of challenge need not be considered. Impugned proceedings are set aside. The Managing Committee is free to take action against the petitioner in accordance with law. It is to be noted that the petitioner is under suspension with effect from 16.6.2017 and consequent upon Wpc 22228/2019 -:9:- declaring that the entire proceedings are illegal, he is liable to be reinstated. Though there are serious allegations against the petitioner, this Court interfered with the disciplinary proceedings only on technical grounds which go to the root of the disciplinary proceedings. But that mistake was committed by the Managing Committee. No employee can be suspended beyond the period of one year under Rule 198(6) without prior approval of the Registrar. In such circumstances, this Court is of the view that it is open for the respondents to reinstate the petitioner in service or to pay full salary during the period of disciplinary proceedings if they propose to initiate. If disciplinary proceedings are initiated, it shall be concluded within three months. If no proceedings are being initiated or no proceedings are concluded within the time as above, the petitioner shall be reinstated in service.
The writ petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE CHARGE MEMO NIL DATED ISSUED TO THE PETITIONER.
EXHIBIT P2 A TRUE COPY OF THE REPLY DATED 22.10.2017 FILED BY THE PETITIONER.
EXHIBIT P3 A TRUE COPY OF THE PETITION DATED
12.12.2017 SUBMITTED BY THE PETITIONER. EXHIBIT P4 A TRUE COPY OF THE LETTER DATED 09.01.2018 AND AFFIDAVIT DATED 07.02.2018.
EXHIBIT P5 A TRUE COPY OF THE ENQUIRY REPORT OF THE ENQUIRY OFFICER.
EXHIBIT P6 A TRUE COPY OF THE NOTICE DATED 01.09.2018. EXHIBIT P7 A TRUE COPY OF THE REPLY DATED 07.09.2018 FILED BY THE PETITIONER.
EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 12.09.2018 OF THE SUBCOMMITTEE.
EXHIBIT P9 A TRUE COPY OF THE ORDER PASSED BY THE APPEAL COMMITTEE DATED 11.06.2019.
EXT.P10 TRUE COPY OF REPRESENTATION DT.15.10.2017 SUBMITTED BEFORE SUB-COMMITTEE EXT.P11 TRUE COPY OF ORDER DT.22.3.2018 ISSUED BY ENQUIRY OFFICER EXTS OF RESPONDENTS 1 TO 3:
EXT.R1(A) TRUE COPY OF LETTER DT.1.9.2018 FORWARDING THE ENQUIRY REPORT TO THE PETITIONER.