IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
WP(C) NO. 18899 OF 2022
PETITIONER:
USHA KUMARI.P.V
AGED 58 YEARS
W/O JANARDHANAN PILLAI, SECRETARY (RETIRED), THE BALAGRAM
SERVICE CO OPERATIVE BANK LTD, NO. 1.150, H.O. BALAGRAM, IDUKKI
- 685 552, RESIDING AT PULIPRA, MUNDIYERUMA, KALLAR P.O.,
IDUKKI - 685 552.
BY ADVS.
P.NANDAKUMAR
AMRUTHA SANJEEV
RESPONDENTS:
1 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
PAINAVU, IDUKKI - 685 603.
2 THE ASSISTANT REGISTRAR OF CO OPERATIVE SOCIETIES (GENERAL),
UDUMPANCHOLA, IDUKKI - 685 554.
3 THE BALAGRAM SERVICE CO OPERATIVE BANK LTD,
NO. 1.150, H.O. BALAGRAM, IDKKI - 685 552 REPRESENTED BY ITS
SECRETARY.
OTHER PRESENT:
ADV. PARVATHY K (GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 18899 OF 2022
2
JUDGMENT
The petitioner says that while she was working as a Secretary of the 3rd respondent - Service Co-operative Bank (hereinafter referred to as the 'Bank' for short), she was placed under suspension and disciplinary action initiated on certain imputations and allegations. She says that, pending such enquiry, she applied for voluntary retirement, which was accepted by the Bank through Ext.P2 on 25.08.2020, without any condition being attached to it; and consequently, that she was relieved with effect from 20.08.2020 as mentioned therein. She asserts that it is, therefore, clear that disciplinary action against her had been dropped and that there were no liability legally fixed, thus she being paid the entire salary, after adjusting the subsistence allowance paid for the period when she was under suspension.
2. The petitioner alleges that, however, subsequently, when she applied for retiral benefits, she was issued with Ext.P8 letter dated 22.12.2021, alleging that, while she was relived from service consequent to her application for voluntary retirement, the period of suspension was regularized only as Leave Without Allowances and therefore, that she is to return the entire salary received by her during that period, namely Rs.7,97,394/-. She adds WP(C) NO. 18899 OF 2022 3 that, to make it far worse, Ext.P10 dated 21/4/2022 has now been issued informing her that some assets of the Bank are missing and that unless she makes up for the same or it is traced, the retiral benefits cannot be disbursed to her. She thus prays that Exts.P8 and P10 be quashed and the Bank be directed to disburse to her the eligible retiral benefits, without any further delay.
3. I have heard Sri.P.Nandakumar - learned counsel for the petitioner; Sri.P.C.Sasidharan - learned Standing Counsel for respondent No.3 and the learned Government Pleader - Smt.Parvathy Kottol, appearing for the official respondents.
4. Sri.P.C.Sasidharan - learned Standing Counsel for the Bank, in response, submitted that the afore contentions of the petitioner, as argued by her learned counsel - Sri.P.Nandakumar, are without basis, because the petitioner had illegally and unlawfully received salary for the period when she was under suspension, though it was regularized, at the time when she was relieved from the services of his client, only as Leave Without Allowances. He argued that, therefore, unless the petitioner returns the said amount and makes up the loss caused by her while she was the Secretary of the Bank, she cannot obtain any retiral benefits, particularly under the sweep of Rule 198(8) of the Kerala Co-operative Societies Rules (KCS Rules for short). He thus prayed that this writ petition be WP(C) NO. 18899 OF 2022 4 dismissed.
5. When I hear Sri.P.C.Sasidharan on the afore lines, it is clear that there are broadly two impediments stated by the Bank for the petitioner to be disbursed with her retiral benefits.
6. For the first, the Bank says that the petitioner should return the entire salary received by her during the period when she had been under suspension, since it was allegedly regularized only as Leave Without Allowances.
7. For the second, the Bank takes the stand that certain of its assets are missing and that unless it is returned by the petitioner or traced out, she cannot be granted the retiral benefits.
8. As regards the first objection of the Bank, their stand that the period of suspension was regularized as Leave Without Allowances can hold water only if they are able to establish, through cogent and reliable evidence, that they had issued orders to such effect after notifying and hearing the petitioner. There is nothing on record to show this as of now, though I am aware that Sri.P.C.Sasidharan had requested for some time to file counter pleadings to establish this.
9. As far as the second objection is concerned, even though the Bank says that there is a liability against the petitioner, it has not been quantified in terms of law and this has been well settled by this WP(C) NO. 18899 OF 2022 5 Court in W.P.(C)No.3576/2021. The declarations in this judgment is unmistakable that the Bank cannot unilaterally hold that there is a liability without quantifying it through a process of law and I am certain that in this case also, they would apply in all its force.
10. In the afore circumstances, I am certain that Exts.P8 and P10 cannot find my favour and that the Bank must reconsider the claim of the petitioner in terms of law, adverting to the precedents covering the field.
Resultantly, this writ petition is allowed and Exts.P8 and P10 are set aside; with a consequential direction to the competent Authority of the Bank to hear the petitioner and consider all the documents and precedents to be produced and cited in substantiation of her plea; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment.
I reiteratingly clarify that recovery of salary paid to the petitioner can be permitted only if the Bank is able to establish and prove that they had regularized the period of suspension as Leave Without Allowances and that too, after hearing and considering her version.
As far as the alleged liability is concerned, through the afore WP(C) NO. 18899 OF 2022 6 exercise, the Bank must establish that they have quantified the same if any, in the manner as has been permitted by this Court in the aforementioned judgment and other precedents to be cited by the petitioner.
To obtain an expeditious compliance of the afore directions, I direct the petitioner to appear before the 3 rd respondent at 11.00 am on 11.07.2022; on which day, she will either be heard, or a convenient date fixed for such purpose, culminating in an appropriate order within the time frame fixed above.
At this time, Sri.Nandakumar intervened to say that whatever be the contentions of the Bank may have, recovery of subsistence allowance is impermissible and this has also been sought to be attempted through Ext.P8.
Certainly, this is an issue that must engage the mind of the Bank during the afore exercise and I order them to do so.
sd/-
DEVAN RAMACHANDRAN JUDGE rp WP(C) NO. 18899 OF 2022 7 APPENDIX OF WP(C) 18899/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF LETTER DATED 24.07.2020 SUBMITTED BY THE PETITIONER BEFORE THE PRESIDENT OF THE 3RD RESPONDENT BANK Exhibit P2 TRUE COPY OF LETTER DATED 25.08.2020 ISSUED BY THE PRESIDENT OF THE 3RD RESPONDENT BANK TO THE PETITIONER.
Exhibit P3 TRUE COPY OF LETTER DATED 05.09.2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT Exhibit P4 TRUE COPY OF REPRESENTATION DATED 04.02.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P5 TRUE COPY OF LETTER DATED 02.07.2021 ISSUED BY THE 3RD RESPONDENT Exhibit P6 TRUE COPY OF REPRESENTATION DATED 05.07.2021 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P7 TRUE COPY OF PENSION DOCKET OF THE PETITIONER Exhibit P8 TRUE COPY OF LETTER DATED 22.12.2021 ISSUED BY THE 3RD RESPONDENT.
Exhibit P9 TRUE COPY OF REPRESENTATION DATED 25.01.2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P10 TRUE COPY OF LETTER DATED 21.04.2022 ISSUED BY THE 3RD RESPONDENT