Kerala High Court
P.T.Joseph vs M/S.Matsyafed on 25 August, 2022
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
WA NO. 1137 OF 2022
AGAINST THE JUDGMENT IN WP(C) 12179/2022 OF HIGH COURT OF
KERALA
APPELLANT/PETITIONER IN WP(C):
P.T.JOSEPH
PUTHENVEETTIL HOUSE, PUNNAPRA P.O,
ALAPPUZHA DISTRICT-688 004.
BY ADVS.
GEORGE POONTHOTTAM (SR.)
NISHA GEORGE
RESPONDENT/S:
1 M/S.MATSYAFED
(KERALA STATE CO-OPERATIVE FEDERATION FOR
FISHERIES DEVELOPMENT LTD), KAMALESHWARAM,
MANAKKAD P.O, THIRUVANANTHAPURAM-695 009.
2 THE MANAGING DIRECTOR,
MATSYAFED, (KERALA STATE CO-OPERATIVE FEDERATION
FOR FISHERIES DEVELOPMENT LTD), KAMALESHWARAM,
MANAKKAD P.O., THIRUVANANTHAPURAM - 695 009.
OTHER PRESENT:
ADV SRI.T.P PRADEEP, SC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA No.1137 of 2022
:2:
A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ
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WA No.1137 of 2022
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Dated this the 25th day of August, 2022
JUDGMENT
Mohammed Nias.C.P.J. This writ appeal is filed by the writ petitioner, a retired employee under the services of the first respondent. He retired on 31.10.2020 as District Manager, Alappuzha of the first respondent. There were allegations regarding the functioning of Vyasa Stores established by the first respondent and Ext.P1 report submitted by the internal audit wing alleged misappropriation at the Vyasa Store at Ambalappuzha. It is stated that there was no mention about any liability or responsibility of the writ petitioner despite which Ext.P2 show cause notice was issued to him, to which he gave Ext.P2 reply, which was not accepted as seen from Ext.P3 communication. No memo of charges was issued to the petitioner. The petitioner prayed for a direction to the first respondent to disburse all retiral benefits including DCRG and to refrain the first respondent from taking any action for recovery except in terms of the law and provisions of the Kerala Co-operative Societies Act and Rules (for short 'KCS' WA No.1137 of 2022 :3: Act & Rules). It was urged that Ext.P7 order improperly fixed a liability of Rs,32,55,604/- on the petitioner and the same was done without following any procedure. The petitioner questions Ext.P7 on the ground that there has been no adjudication or quantification before arriving at the figure mentioned.
2. The respondent contended that Ext.P7 was issued consequent to an enquiry and an internal audit and the assessment was made only after that and further that they have moved a competent arbitrator, by filing an arbitration case and therefore retiral benefits cannot be disbursed to the petitioner before the completion of the proceedings. Upon consideration of the writ petition, learned single Judge directed the first respondent to disburse the eligible retiral benefits including DCRG to the petitioner dehors Ext.P7 within a period of two months and also directed that if the Society is able to obtain any interdictory orders from the competent arbitrator, then the direction to disburse the retiral benefits will stand modulated accordingly. That part of the judgment of the learned single Judge is challenged by the writ petitioner before us contending that the appellant had retired from service and that no memo of charge was issued to him till his retirement and no disciplinary proceedings as contemplated under Rule 198 of the KCS Rules was initiated while he was in service. The learned counsel argues WA No.1137 of 2022 :4: that the rider attached that if the Society obtained interdictory orders from the arbitrator, the retiral benefits can be withheld is clearly wrong. He also questions Exts.P5 and P7.
3. The learned counsel for the respondent submitted that the Society was entitled to withhold the retiral benefits due to the petitioner in the wake of the allegations made against him and the reports following the internal enquiry, and therefore sought to sustain the judgment under appeal.
4. Having heard the learned counsel for the appellant and the respondents, we find force in the argument of the learned counsel for the appellant that he was entitled to all the retiral benefits, since no action was taken against him or any memo of charges issued till his retirement. There is no quantification of any liability against him in the manner known to law. In such circumstances, the learned single Judge was justified in directing the first respondent Society to pay all the retiral benefits within a period of two months from the date of receipt of a copy of this judgment, dehors Ext.P7. However, the rider in the judgment that the if Society is able to obtain any interdictory orders from the competent arbitrator, the said direction will stand modulated cannot be sustained. That part of the judgment being wrong is liable to be vacated. We direct the first respondent Society to WA No.1137 of 2022 :5: disburse all eligible retiral benefits as directed by the learned single Judge within the time fixed in the judgment. It will be open to the first respondent Society, after the determination by the arbitrator on the question of the petitioner's liability to proceed against him, in case the arbitrator holds so. Needless to say that the above directions are issued without any expression of the merits of the case of either parties.
The writ appeal is allowed to the above extent.
Sd/-
A.K.JAYASANKARAN NAMBIAR, JUDGE Sd/-
MOHAMMED NIAS C.P., JUDGE dlk 26.8.2022