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8. Further that, Ext.P-6 is the special report issued by the 1 st respondent, which would only allege supervisory lapse on the part of the petitioner and no direct misconduct or delinquency is alleged as against the petitioner in respect of the matters covered by Ext.P-6, Ext.P-5 and Ext.R- 1(a), etc. Further that, Ext.R-1(a) audit objections WA 297/20 - : 7 :-
pertain to the period 2013-14 and that, when the petitioner was in charge of the Branch Manager/Assistant Secretary, he had put in a note to the Secretary of the 1 st respondent bank stating that some serious malpractices are being done at the behest of the two employees mentioned therein and that Ext.P-7 is the note submitted by the petitioner on 23.12.2008 to the 1 st respondent. That Ext.P-7 note given by the petitioner on 23.12.2008 has been acknowledged by the Secretary of the 1 st respondent bank on 29.12.2008. But that no action whatsoever was taken by R-1 and R-2 and later, one among the two employees was removed from service and the other person was allowed to continue in service. That in view of the provisions contained in Rule 47(d) of the Kerala Co-operative Rules, the Secretary and the Managing Committee of the bank cannot be absolved from their liabilities and if at all, liabilities referred to in Ext.P-5 and Ext.R-1(a) are to be finalised in accordance with law and the same has to be done through an independent process and not at the unilateral decision of respondents 1 and 2 and the liability, if any, should be apportioned between all the persons, who are so found liable, including the Secretary and members of the managing committee of the bank and the other employees, etc. and that the WA 297/20 - : 8 :-
his liability to be recovered from his retirement benefits. The aggrieved employee had also preferred an arbitration reference case and had secured an award, which was later upheld by the appellate Tribunal, wherein it was found in view of the clear cut finding in favour of the employee in the disciplinary inquiry proceedings, which was finalised by the managing committee of the bank. It was also held by the arbitration reference court that the bank has not initiated any proceedings before the arbitrator as per Sec.69 of the Kerala Co- operative Societies Act, 1969, to recover the alleged loss from the claimant employee concerned and that such action was never initiated by the bank even before the retirement of the claimant, etc. This Court, after considering the facts in para No.9 thereof has categorically held therein that without any conferment of power as per law, nobody is vested with the power to quantify the damages suo motu and recover the same unilaterally and that the procedure adopted by the management as per the impugned memo dated 8.11.2011 (Ext.P-3 therein) is illegal and ultra vires and is alien to the rule of law and it is a basic and well settled proposition of law that no person can be a judge of his own cause and that damages are matters to be adjudicated through the procedure established under WA 297/20 - : 14 :-
law. That none of the provisions contained in the Kerala Co-operative Societies Act and the rules framed thereunder confer any power on the co-operative society to unilaterally quantify damages and that too, without even providing any opportunity to the claimant employee concerned and that therefore it is illegal and ultra vires to quantify and recover the damages from the retiral benefits, as was proposed by the impugned action therein. This Court also held in para No.8 thereof that the only provision that enables the co-operative society employer to recover the loss, in a case of this nature, is by initiating disciplinary action in terms of Rule 198(1) of the Kerala Co-operative Societies Rules and after following the due procedure thereof and based on the factual evidence adduced in the disciplinary proceedings, the employer may be at liberty to inflict a penalty of recovery from the pay of the whole or any part of the pecuniary loss caused to the society by negligence or breach of orders or otherwise, as envisaged in clause (e) of Rule 198(1). In the said case, the disciplinary action ended in exoneration of the claimant employee therein. Further, no proceedings under Sec.69 of the Kerala Co- operative Societies Act was initiated by the employer bank against the employee for adjudication of the issue of liability and for recovery of WA 297/20 - : 15 :-
the said amount, etc. as per law. Hence, this Court categorically held in the decision in Kottayam District Co-operative Bank's case supra [2018 (1) KLJ 636] that the impugned action therein withholding the retirement benefits and the action to recover the alleged loss unilaterally by the bank, merely on the basis of statutory audit objections was held to be clearly illegal and ultra vires and this Court directed that steps shall be immediately taken by the employer bank to pay the due terminal benefits to the 3 rd respondent therein (retired employee). The abovesaid dictum laid down by the learned Single Judge of this Court in Kottayam District Co-operative Bank's case supra [2018 (1) KLJ 636] has been approved and relied on by a Division Bench of this Court in para No.7 of the case in Philip.C.M. v. Registrar of Co-operative Societies [2018 (3) KHC 780 (D.B)]. It will be pertinent to refer to paras 8 and 9 of the judgment of the learned Single Judge in Kottayam District co- operative Bank's case supra [2018 (1) KLJ 636], which read as follows: