IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
WP(C) NO. 17309 OF 2021
PETITIONERS:
1 SUSHAMA S.
AGED 62 YEARS
VIMAL NIVAS, CMC 22, CHERTHALA P.O.,
ALAPPUZHA DISTRICT, PIN - 688 524.
2 VIMAL V.
VIMAL NIVAS, CMC 22, CHERTHALA P.O.,
ALAPPUZHA DISTRICT, PIN - 688 524.
3 VIPIN V.
VIMAL NIVAS, CMC 22, CHERTHALA P.O.,
ALAPPUZHA DISTRICT, PIN - 688 524.
BY ADVS.
V.VARGHESE
L.ANNAPOORNA
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-
OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN -
695 001.
2 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,
ALAPPUZHA, PIN - 688 011.
3 CHERTHALA SERVICE CO-OPERATIVE BANK LTD.NO.1688
CHERTHALA P.O., ALAPPUZHA DISTRICT,PIN - 688 524, REPRESENTED
BY ITS SECRETARY.
4 THE SECRETARY,
CHERTHALA SERVICE CO-OPERATIVE BANK LTD.NO.1688, CHERTHALA
P.O., ALAPPUZHA DISTRICT, PIN - 688 524.
5 MANAGER
LIFE INSURANCE CORPORATION OF INDIA, DIVISIONAL OFFICE, JEEVAN
PRAKASH, P.B.NO.609, NAGAMPADAM, KOTTAYAM, PIN - 686 001.
6 KERALA STATE CO-OPERATIVE EMPLOYEES' PENSION BOARD
JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P.O.,
THIRUVANANTHAPURAM, PIN - 695 014, REPRESENTED BY ITS
WP(C) NOs. 17309 & 24211 OF 2021
2
SECRETARY/JOINT REGISTRAR.
BY ADVS.
M.SASINDRAN
N.RAJAGOPALAN NAIR
OTHER PRESENT:
SMT RESMI THOMAS-GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2022,
ALONG WITH WP(C).24211/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NOs. 17309 & 24211 OF 2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
WP(C) NO. 24211 OF 2021
PETITIONERS:
1 SUSHAMA S
AGED 62 YEARS
VIMAL NIVAS, CMC 22, CHERTHALA P.O,
ALAPPUZHA DISTRICT, PIN 688 524
2 VIMAL V
VIMAL NIVAS, CMC 22, CHERTHALA P.O,
ALAPPUZHA DISTRICT, PIN 688 524
3 VIPIN V
VIMAL NIVAS, CMC 22, CHERTHALA P.O,
ALAPPUZHA DISTRICT, PIN 688 524
BY ADV V.VARGHESE
RESPONDENTS:
1 CHERTHALA SERVICE CO-OPERATIVE BANK LTD.NO.1688
CHERTHALA P.O, ALAPPUZHA DISTRICT, PIN 688 524
REPRESENTED BY ITS SECRETARY-IN-CHARGE
2 P. SURESH
S/O. PRABHAKARAN, MALICHIRAYIL, CMC 09, CHERTHALA P.O, PIN 688
524,CASHIER, CHERTHALA SERVICE CO-OPERATIVE BANK LTD, MORNING
AND EVENING BRANCH
3 P. REGHUVARAN
S/O. PAPPAN, KURISSERI HOUSE, CMC 05
CHERTHALA P.O, PIN 688 524
(JUNIOR CLERK, MAIN BRANCH, CHERTHALA SERVICE CO-OPERATIVE BANK
LTD)
BY ADVS.
M.SASINDRAN
D.VINOD
WP(C) NOs. 17309 & 24211 OF 2021
4
K.N.RAJANI
AYNOSH MICHAEL P.S
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2022,
ALONG WITH WP(C).17309/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NOs. 17309 & 24211 OF 2021
5
JUDGMENT
The petitioners in these two cases are the legal heirs of Vamadevan, who unfortunately died on 25.04.2011.
2. Late Vamadevan was working in the 'Cherthala Service Co- operative Bank Ltd.,' ('Society' for short) as its Manager, when he was proceeded under a disciplinary enquiry on the allegation that he had committed misdemeanor and misappropriation; and simultaneously, the Society initiated Arbitration Cases against him, along with certain other employees.
3. However, while the afore two proceedings were pending, Vamadevan died; and consequently, the disciplinary action elapsed, while the ARCs culminated in an Award dated 23.06.2018, a copy of which is on record as Ext.P8 in W.P.(C)No.24211/2021.
4. Pending the ARCs, consequent to the death of Vamadevan, the petitioners were brought on record and they thereafter, challenged Ext.P8 Arbitration Award before the Kerala Co-operative Tribunal, Thiruvananthapuram, through appeals, but which were also dismissed through an order dated 16.02.2021 - a copy of which is available as Ext.P12 in W.P.(C)No.24211/2021.
5. The petitioners thus challenge the Arbitration Award and the Appellate order of the Co-operative Tribunal in W.P. (C)No.24211/2021; while, they seek that the retiral benefits of late WP(C) NOs. 17309 & 24211 OF 2021 6 Vamadevan be disbursed to them through W.P.(C)No.17309/2021.
6. I have heard Sri.V.Varghese - learned counsel for the petitioners in both cases; Sri.M.Sasindran - learned Standing Counsel for the Society and Smt.Resmi Thomas - learned Government Pleader appearing for the official respondents.
7. Sri.V.Varghese argued extensively on the merits of the Arbitration Award and the Appellate order of the Tribunal. He submitted that said Forums proceeded to find liability against late Vamadevan solely on the basis of certain documents which were not genuine or original and that they have erred in having relied upon photocopies of the same and on other secondary evidence. He then argued that there is no discussion regarding the evidence or the documents marked during the Arbitration in either of the impugned orders, but that the Arbitration Court still found that late Vamadevan was liable to pay large amounts to the Society. He argued that the Arbitration Court, in fact, ought to have seen that the relevant cash book, ledger, loan register etc., were not produced and ought to have properly appreciated the evidence of PW1, who admitted that late Vamadevan never issued any document from the Society in the names of Smt.Shajimon, Smt.Sreedevi and Smt.Pushpalatha as alleged against him. He concluded his submissions saying that, in any event, the Arbitration Court and the Tribunal ought to have seen that there WP(C) NOs. 17309 & 24211 OF 2021 7 was no loss occasioned to the Society because they had not paid back any amounts to the depositors nor did they suffer any detriment in the gold loan transactions, which is evident from the evidence on record. He thus prayed that W.P.(C)No.24211/2021 be allowed; with an adscititious plea that W.P.(C)No.17309/2021 be ordered, directing the Society to disburse the retiral benefits of late Vamadevan to his clients.
8. In response, Sri.M.Sasindran submitted that the attempt of the petitioners is to have a virtual re-trial of the Arbitration Cases before this Court and argued that this is impermissible in law. He contended that, since the Arbitration Court had gone through the evidence and documents marked in great detail and discussed the same, leading to its opinion on it, the petitioners cannot seek its further re-assessment by this Court, when it acts under Article 226 of the Constitution of India. He added that this is more so because, the statutory Tribunal also found, giving cogent reasons, that the conclusions of the Arbitration Court was without error. He asserted that petitioners are acting solely on surmises because late Vamadevan was the Manager of the Branch at the relevant time and the documents marked in evidence would ineluctably establish his connivance in the misappropriation and misdemeanor, which has caused loss to the Society to large sums.
9. As regards the retiral benefits claimed by the petitioners, WP(C) NOs. 17309 & 24211 OF 2021 8 Sri.M.Sasindran submitted that the Society is yet to obtain the gratuity amounts from the Life Insurance Corporation of India (LIC), under a Group Gratuity Scheme, but that as soon as it is received, his client is entitled to adjust the same, along with pensionary and retiral benefits of late Vamadevan, into the accounts of the Society. He submitted that, this is because the amounts adjudicated against late Vamadevan is far more than his retiral and pensionary benefits, and thus prayed that both these writ petitions be dismissed.
10. I have considered and evaluated the afore submissions with great care.
11. I must begin by reminding all the parties to this case that when orders of the Arbitration Court and that of the Tribunal are challenged under Article 226 of the Constitution of India. It will not permit this Court to act as an Appellate body, but that its jurisdiction is confined to verify whether applicable procedure has been followed and whether the evidence on record is, prima facie, sufficient to justify the conclusions.
12. In such perspective, when I examine the Arbitration Award and the order of the Appellate Tribunal, I am left without doubt that both the Forums have considered the evidence and documents in detail; and in fact, the Arbitration Award lists them in support of the holdings entered into by it. The Tribunal, thereafter, went through the WP(C) NOs. 17309 & 24211 OF 2021 9 evidence and examined the documents to hold that the Arbitration Court has acted without error and therefore, I do not see how the petitioners can now ask this Court to re-appreciate the evidence as if it is an Appellate Court. On an evaluation of the Award and the order of the Tribunal, I am without doubt that both the Authorities have acted correctly in appreciating the evidence on record, in the manner as it was expected to.
13. That said, the argument of Sri.V.Varghese, that the documents were photocopies and not the originals are not issues that can be raised before this Court because it was upto his clients or late Vamadevan to have objected to it at the time when they were marked and led in evidence. This, not having been done, it is only hindsight on their part to now raise such contentions.
14. Needless to say, therefore, this Court cannot find against the Award of the Arbitration Court or the order of the Tribunal.
15. That said, the corollary question is as to the retiral and pensionary benefits of late Vamadevan. It is now well settled that the amounts of gratuity cannot be adjusted against the adjudicated liability of late Vamadevan; while the family pension is not an estate of the deceased, but which is owned by his wife or other heirs.
16. The eligibility to obtain amounts under the Provident Fund and such other, of course, are to be decided by the Society, after WP(C) NOs. 17309 & 24211 OF 2021 10 hearing the parties and it is not necessary for this Court to enter into a conclusion on it at this stage.
17. That being so said, I am cognizant of the submissions of Sri.M.Sasindran that the Society is yet to obtain the amount of gratuity in the name of late Vamadevan from the LIC.
18. I fail to understand why this is so, but I am certain that steps should be taken by the Society to receive it immediately, so that it can be then paid to his wife without any delay.
In the afore circumstances,
a) W.P.(C)No.24211/2021 is dismissed.
b) W.P.(C)No.17309/2021 is ordered, directing the Society to obtain the eligible gratuity amounts in the name of late Vamadevan from the LIC at the earliest, but not later than two months from the date of receipt of a copy of this judgment. On the said amounts being received by the Society, it shall transfer it to the 1 st petitioner, after obtaining necessary receipt from her, without any avoidable delay thereafter.
c) As far as the family pension eligible to the 1 st petitioner in these cases is concerned, I declare that it cannot be adjusted by the Society against the liability adjudicated against late Vamadevan, since it is not part of his estate, but is vested legally with his widow.
d) It is further made clear that, except the assets of late WP(C) NOs. 17309 & 24211 OF 2021 11 Vamadevan, the Society will not be entitled to proceed against any other in execution of the Arbitration Award, confirmed by the order of the Tribunal.
e) As regards the other retiral benefits claimed by the petitioners are concerned, if the Society intends to adjust the same against the liability of late Vamadevan, they will issue a proper demand and hear them, thus culminating in an appropriate order.
f) I leave open the contentions of the petitioners as regards the quantum of gratuity eligible, if they are to find that the amounts received from the LIC are not commensurate to what was eligible to late Vamadevan under Rule 59 of the Kerala Co-operative Societies Rules.
To facilitate direction (c) above, the Society, if it has not already done, will forward the pension papers of late Vamadevan, along with the eligible contribution to the Kerala State Co-operative Pension Board, within a period of one month from the date of receipt of a copy of this judgment; which Authority will, thereupon, ensure that eligible family pension is disbursed to the 1st petitioner herein without any delay thereafter.
SD/-
DEVAN RAMACHANDRAN JUDGE rp WP(C) NOs. 17309 & 24211 OF 2021 12 APPENDIX OF WP(C) 24211/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ARC NO. 127/2006 FILED BY THE 1ST RESPONDENT BEFORE THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, CHERTHALA Exhibit P2 TRUE COPY OF THE ARC NO. 129/2006 FILED BY THE 1ST RESPONDENT BEFORE THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, CHERTHALA.
Exhibit P3 TRUE COPY OF THE ARC NO. 130/2006 FILED BY THE 1ST RESPONDENT BEFORE THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, CHERTHALA Exhibit P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY LATE SRI P. VAMADEVAN IN ARC 127/2006 BEFORE THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, CHERTHALA Exhibit P5 TRUE COPY OF THE WRITTEN STATEMENT FILED BY LATE SRI P. VAMADEVAN IN ARC 129/2006 BEFORE THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, CHERTHALA.
Exhibit P6 TRUE COPY OF THE WRITTEN STATEMENT FILED BY LATE SRI P. VAMADEVAN IN ARC 130/2006 BEFORE THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, CHERTHALA.
Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 28-08-2010 IN A.P 44/2009 BEFORE THE KERALA CO-OPERATIVE TRIBUNAL. Exhibit P8 TRUE COPY OF THE AWARD DATED 23-06-2018, DECREEING ARC NOS 127/2006, 129/2006 AND 130/2006 AND DISMISSING ARC NO. 128/2006 OF THE ARBITRATOR Exhibit P9 TRUE COPY OF THE APPEAL NO. 85/2018 FILED BY THE PETITIONERS BEFORE THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM Exhibit P10 TRUE COPY OF THE TRUE COPY OF THE APPEAL NO.
86/2018 FILED BY THE PETITIONERS BEFORE THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. WP(C) NOs. 17309 & 24211 OF 2021 13 Exhibit P11 TRUE COPY OF THE TRU COPY OF THE APPEAL NO. 87/2018 FILED BY THE PETITIONERS BEFORE THE KERALA CO- OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM Exhibit P12 TRUE COPY OF THE COMMON JUDGMENT DATED 16-02-2021 IN REVISION PETITION NO. 6/2019, APPEAL NOS. 85/2018 , 86/2018 AND 87/2018 BEFORE THE KERALA CO- OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. WP(C) NOs. 17309 & 24211 OF 2021 14 APPENDIX OF WP(C) 17309/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTIFICATION NO.874(E) DATED 01/10/1987 ISSUED BY THE GOVERNMENT OF INDIA. Exhibit P1A TRUE COPY OF THE TYPED COPY OF EXT.P1. Exhibit P2 TRUE COPY OF THE REPRESENTATION DATED 19/03/2021 FILED BY THE 1ST PETITIONER BEFORE THE SOCIETY. Exhibit P3 TRUE COPY OF THE LETTER NO.B/1688/145/18 DATED 30/01/2018 OF THE ASSISTANT REGISTRAR (GENERAL), CHERTHALA.
Exhibit P4 TRUE COPY OF THE LETTER NO.PB/PRO/2300/2021 DATED 29/03/2021 OF THE SECRETARY OF THE PENSION BOARD. Exhibit P5 TRUE COPY OF THE LETTER NO.PB/PRO/2300/2021 DATED 10/12/2021 OF THE 6TH RESPONDENT Exhibit P6 TRUE COPY OF THE PLAINT IN ARC NO.128/2006 FILED BY THE BANK BEFORE THE ARBITRATOR.
Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 25.6.2012 IN WPC.8402/2012 OF THIS HON'BLE COURT.
Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 10.08.2020 IN WPC.NO.24728/2013 OF THIS HON'BLE COURT.
RESPONDENT EXHIBITS Exhibit R5(a) A TRUE COPY OF THE COST & BENEFIT SCHEDULE FOR THE ARD 28/02/2011.
Exhibit R4(A) A TRUE COPY OF THE CHARGE MEMO DATED 29.10.2003 ISSUED TO THE DECEASED VAMADEVAN.
Exhibit R4(B) A TRUE COPY OF THE SURCHARGE ORDER DATED 04.03.2009 ISSUED BY THE JOINT REGISTRAR AGAINST THE PETITIONER.
Exhibit R4(C) A TRUE COPY OF THE ORDER OF THE ARBITRATOR UNDER WP(C) NOs. 17309 & 24211 OF 2021 15 SECTION 69 ACT, IN THE ARBITRATION CASES FILED BY THE SOCIETY AGAINST THE DECEASED VAMADEVAN, DATED 23.06.2018.
Exhibit R4(D) A TRUE COPY OF THE ORDER DATED 16.02.2021 OF THE KERALA CO-OPERATIVE TRIBUNAL.
PETITIONER EXHIBITS Exhibit P6 TRUE COPY OF THE PLAINT IN ARC NO.138/2006 FILED BY THE BANK BEFORE THE ARBITRATOR.
Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 25.06.2012 IN W.P.
(C)NO.8402/2012 OF THIS HON'BLE COURT.
Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 10.08.2020 IN W.P.
(C).NO.24728/2013 OF THIS HON'BLE COURT.