IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
WP(C) NO. 24712 OF 2022
PETITIONER:
USHA.S,
AGED 55 YEARS
D/O.SUMATHY AMMA , HEAD CLERK, KAREEPRA SERVICE CO-
OPERATIVE BANK LTD. NO. 3827, USHAS, EZHUKONE P.O,
KOLLAM 691 505.
BY ADVS.
MURALI MADANTHACODU
NANDU.V
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA,
DEPARTMENT OF CO-OPERATION, SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES,
2ND FLOOR, COLLECTORATE BUILDINGS, KOLLAM 691 013.
3 THE DIRECTOR BOARD, KAREEPRA SERVICE CO-OPERATIVE
BANK LTD. NO. 3827,
REPRESENTED BY THE PRESIDENT, KAREEPRA,
KUZHIMATHICADU P.O, KOLLAM 691 509.
4 THE KAREEPRA SERVICE CO-OPERATIVE BANK LTD. NO. 3827,
REPRESENTED BY THE SECRETARY, KAREEPRA,
KUZHIMATHICADU P.O, KOLLAM 691 509.
BY ADV P.C.SASIDHARAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 24712 OF 2022 2
JUDGMENT
The petitioner says that she was working as a Head Clerk, in the services of the "Kareepra Service Co-operative Bank Ltd" (Society for short), when she was shifted as a Cashier, with effect from 09.02.2022. She asserts that she is suffering from intense respiratory diseases and arthritis, thus being incapacitated to function as a Cashier, since it involves long periods of sitting duty and because the dust generated through the handling of cash would cause irreparable detriment to her.
2. The petitioner says that, therefore, she represented to the Managing Committee of the Society, requesting that she be shifted to any other job; and alleges that this has not been considered or conceded to until today, thus forcing her to approach this Court through this writ petition.
3. Sri.Murali Madanthacodu - learned counsel for the petitioner, further explained that when his client had been earlier posted as a Cashier, she had gone through a similar issue, which led to disciplinary action being initiated against her, leading to infliction of a punishment, which is now under challenge by her before the Board of Directors of the Society. He argued that his client has been victimized and is being forced to work as a Cashier, in spite of her WP(C) NO. 24712 OF 2022 3 physical inability to do so; and thus prayed that Society be directed to appoint her in any other position, without any further delay. He then predicated that since his client has been unable to work from 09.02.2022, solely for the afore reasons, her salary cannot be withheld, as has been now done by the Society; and thus prayed that they be directed to disburse the same to her forthwith.
4. Sri.P.C.Sasidharan - learned Standing Counsel appearing for the Society, in response, submitted that no valid document has been produced by the petitioner before the Society to establish that she has any physical inability or disease, which incapacitates from functioning as a Cashier. He accused that the attitude of the petitioner is extremely deleterious because, when she was asked to work as a Cashier on 09.02.2022, she refused and has been remaining out of duty until today. He argued that, therefore, the Society had no other option but to issue Ext.P14 notice to her followed, by Ext.P1; and that since she is still refusing to join duty, they will be now constrained to take necessary disciplinary action against her.
5. I have considered the afore submissions and have also gone through the various materials available on record.
6. As I have said above, it is the specific case of the petitioner WP(C) NO. 24712 OF 2022 4 that she is unable to work as a Cashier, though being able to take up any other duty under the Society. Normally, no employee can be given the liberty of picking and choosing responsibilities or posts, as he or she may require; though, certainly, it may be available to such a person to seek the indulgence of the Managing Committee of the Society for specific reasons. Since the petitioner says that she is undergoing treatment and unable to work as Cashier on account of her respiratory problems and arthritis, surely she ought to have approached the competent Authority of the Society, before she could have approached this Court through this writ petition.
7. Of course, when I say so, I am aware that it is the specific case of the petitioner that she has already preferred Exts.P3 and P5 representations before the President and Secretary of the Society respectively and that it has not been considered until today.
8. As I have already said above, it will be impossible for this Court to enter into the merits of the rival contentions of the parties at this stage, particularly when the factual situation is rather amorphous. I am, therefore, of the firm view that the competent Authority must take up Exts.P3 and P5 representations and dispose of the same, after affording her an opportunity of being heard. WP(C) NO. 24712 OF 2022 5
9. The question whether she is entitled to salary for the period from 09.02.2022 is also something which the competent Authority must consider, including as to whether she is liable to be proceeded against for having voluntarily kept out of duty. I clarify that these issues are left open and have not been spoken affirmatively by this Court in any manner in these proceedings.
Resultantly, I dispose of this writ petition, directing the competent Authority of the Society to hear the petitioner, adverting to Exts.P3 and P5 representations made by her and taking note of any Medical Certificate or such other document that she may produce during such process; thus culminating in an appropriate order and necessary action with respect to her request for change of post and for payment of salary from 09.02.2022, as expeditiously as is possible, but not later than three weeks from the date of receipt of a copy of this judgment.
Needless to say, since I have not entered into the merits of any of the rival contentions, the issue as to whether the petitioner requires to be proceeded disciplinarily for her absence from 09.02.2022, is also something that the competent Authority will consider and reflect in the resultant order; however, taking note of all relevant inputs, including her medical condition, if any. WP(C) NO. 24712 OF 2022 6
At this time Sri.Murali Madanthacodu - learned counsel for the petitioner, intervened to say that his client's arrears of salary from the year 2015 has not been paid to her, even though the earlier disciplinary action against her has been completed and punishment inflicted upon her. He argued that, notwithstanding the fact that his client has challenged the said proceedings, it is unfair for the Society to have denied her the arrears of salary and benefits during the relevant period.
I am afraid that this Court cannot enter into the merits of this contention either at this stage and that it will be up to the petitioner to impel it before the competent Authority, who will consider it and issue appropriate orders, either simultaneous with the afore exercise or immediately thereafter, in terms of law.
Sd/-
DEVAN RAMACHANDRAN JUDGE raj/MC WP(C) NO. 24712 OF 2022 7 APPENDIX OF WP(C) 24712/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER OF THE 3RD RESPONDENT DATED 16.02.2022.
Exhibit P2 TRUE COPY OF THE REPLY OF THE PETITIONER DATED 17.02.2022.
Exhibit P3 TRUE COPY OF THE REPRESENTATION OF THE PETITIONER SUBMITTED BEFORE THE 3RD RESPONDENT DATED 20.06.2022.
Exhibit P4 TRUE COPY OF THE REPRESENTATION OF THE PETITIONER SUBMITTED BEFORE THE 2ND RESPONDENT DATED 14.07.2022.
Exhibit P5 TRUE COPY OF THE REPRESENTATION OF THE PETITIONER SUBMITTED BEFORE 4TH RESPONDENT DATED 17.09.2019.
Exhibit P6 TRUE COPY OF THE REPORT ON ULTRA SOUND SCAN OF THE PETITIONER DATED 15.10.2019.
Exhibit P7 TRUE COPY OF THE MEDICAL CERTIFICATE OF THE SAT, THIRUVANANTHAPURAM DATED 14.12.2019.
Exhibit P8 TRUE COPY OF THE MEDICAL CERTIFICATE OF THE KOTTARAKKARA TALUK, HOSPITAL DATED 01.05.2020.
Exhibit P9 TRUE COPY OF THE TREATMENT CERTIFICATE OF THE GOVT. AYURVEDA HOSPITAL, THIRUVANANTHAPURAM DATED 19.07.2013.
Exhibit P10 TRUE COPY OF THE MEDICAL CERTIFICATE FROM THE DISTRICT HOMEOPATHY HOSPITAL, KOLLAM DATED 16.10.2019.
Exhibit P11 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 07.12.2020.
Exhibit P12 TRUE COPY OF THE ORDER OF THE 4TH
RESPONDENT DATED 14.12.2020.
Exhibit P13 TRUE COPY OF THE OUT PATIENT TICKET OF
THE DISTRICT HOSPITAL KOLLAM DATED
27.12.2021.
Exhibit P14 TRUE COPY OF THE CHARGE SHEET ISSUED BY
THE SUB COMMITTEE DATED 13.07.2015.