Kakkoprathu Prabhakaran vs The President Kannur District ...

Kerala High Court

Kakkoprathu Prabhakaran vs The President Kannur District ... on 21 May, 2024

Author: Dinesh Kumar Singh

Bench: Dinesh Kumar Singh

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
        TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                        WP(C) NO. 12099 OF 2010
AGAINST THE ORDER/JUDGMENT DATED IN ID NO.44 OF 2004 OF LABOUR
COURT, KANNUR
PETITIONER/S:

            KAKKOPRATHU PRABHAKARAN
            S/O. OTHENAN, CHERIYAN HOUSE, MADAYI AMSOM,, VENGARA
            DESOM, P.O.VENGARA, KANNUR DISTRICT.
            BY ADV SRI.P.U.SHAILAJAN


RESPONDENT/S:

    1       THE PRESIDENT KANNUR DISTRICT EX-SERVICE
            EX-SERVICEMEN- MULTI PURPOSE CO-OPERTIVE SOCIETY,,
            PAZHAYANGADI, KANNUR DISTRICT.
    2       THE LABOUR COURT KANNUR.
            BY ADVS.
            M.SASINDRAN
            SRI.P.M.PAREETH


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 12099 OF 2010
                                2

                           JUDGMENT

The challenge in this writ petition is to the orders passed in Exts.P1, P2 and P4 by the disciplinary authority, appellate authority and by the Labour Court, Kannur respectively. The petitioner was a workman employed as Peon in the Kannur District, Ex-servicemen- Multi Purpose Co-operative Society. The 1st respondent Society is Co-operative Society under the provisions of Kerala Co-operative Societies Act, 1969 ('the Act' for short).

2.The petitioner was employed under the management as Peon since 1993. The Honorary Secretary of the 1st respondent Society had committed suicide. After the death of the Honorary Secretary, inspection in the management establishment of the Society was carried out under the powers vested under Section 65 of the Act.

3.It could be found out that the deceased Honorary Secretary and some of the regular customers had misappropriated huge amount of the Society over a long period of time in tacit connivance and knowledge of the members in managing committee.

WP(C) NO. 12099 OF 2010 3

4. The allegation against the petitioner was that he was also part of the misdeed of the Honorary Secretary and misappropriation. Thus the petitioner was issued with charge containing following charges.

"Charge No.1. "Sri. K. Prabhakaran, Peon in the management Society had not questioned the acts of giving huge amounts on gold loans to some persons. Charge No.2. That on 27.01.2000, Sri. K. Balan, Unit Co-operative Inspector had visited Society and indicated that there are misappropriations in the Society and on 07.06.2000, the Unit Inspector and Assistant Registrar had conducted enquiry in the Society and detected the misappropriation and on 08.06.2000, the concerned officers had sealed the strong room of the Society. Charge No.3. The delinquent who knows the above incidents did not inform the matter to the president of the Society. The delinquent Prabhakaran by violating Rule 16(2) (a) of the Kerala Co-operative Societies Rule availed gold loan for Rs. 2,500/- on 06.01.1999 (loan account gold loan No.4908) and Rs.4,500/- on 14.05.1999 (gold loan account No. 5242). "

WP(C) NO. 12099 OF 2010 4

5.The enquiry officer held that the charges proved against the petitioner and the disciplinary authority dismissed the petitioner from service. The appellate authority also upheld the decision of the disciplinary authority.

6.An industrial dispute was referred to the Labour court by the Government for adjudication as per G.O(Rt) No.2391/03/LBR, dated 26.08.2003 for adjudication as "Whether the dismissal of Sri. K. Prabhakaran, Peon-cum-Attender of Kannur District, Ex-servicemen- Multi Purpose Co-operative Society, Pazhayangadi is justifiable. If not what relief the workmen is entitled to ?"

The labour court on the basis of the pleading formulated following four points for determination;

"1) whether a valid enquiry was conducted in accordance with the principles of natural justice?

2) Whether the findings arrived by the Enquiry officer are just and proper?

3)Whether the charge of misconduct has been proved against the workmen?

4) If the charge of misconduct is proved whether dismissal of service was warranted and whether the workman is liable to be imposed a lesser punishment?"

WP(C) NO. 12099 OF 2010 5

7.The Labour court found that after the unnatural death of the Honorary Secretary, an enquiry was conducted by the Co- operative Department and there was prima facie finding that the petitioner was involved in the misconduct. Therefore, the charge memo dated 21.12.2000 was issued to the petitioner. On the basis of the record of the disciplinary proceedings, the labour court has held that the proceedings conducted by the enquiry officer would reveal that sufficient opportunity was given to the workman to defend his case. None of the demands were rejected by the enquiry officer. The copies of the document relied upon by the management were supplied to the workman. The workman was represented by counsel of his choice. The copy of the witness list was furnished to the workman. The enquiry was adjourned on several dates on the request of the counsel for the workman. On the basis of the report, the labour court held that the domestic enquiry was conducted by the enquriy officer conforming to the principles of natural justice and the workman was given all opportunity to properly defend his case. The enquiry report was neither perverse nor was vitiated by any infarction of law or principle of natural justice. WP(C) NO. 12099 OF 2010 6

8.In respect of the charge No.1, It has been said that the delinquent had deposed before the enquiry officer (Unit Inspector) that the Honorary Secretary was having the practice of giving more amount on gold loan and that was permitted by the bye-laws of the Society and that the Secretary had committed alterations and corrections in the loan applications and the concerned ledgers of the Society. Few persons used to visit the office of the Society and had the practice of spending lot of time in the cabin of the Honorary Secretary. The Honorary Secretary had given loans to them exceeding the limits prescribed. Several persons including the delinquent had the practice of taking gold loan and the Secretary would allow the amount asked by the concerned practice. It has been held that there was no infirmity in the findings recorded by the enquiry officer that the delinquent had committed charge Nos. 1 to 3 in active collusion with the Honorary Secretary and the conduct of the workman would amount to dereliction of duty and misconduct .

9.Learned counsel for the petitioner has submitted that this court in the judgment in W.P (C) No. 32497/2010, Kannur District, Ex-servicemen- Multi Purpose Co-operative WP(C) NO. 12099 OF 2010 7 Society Vs.P. Pramodkumar, has held that the petitioner and other employees had absolutely no responsibility in any of the affairs of the Society or that they had not been benefited by any alleged misappropriations and had no involvement in the maintenance of the records.

Paragraphs 5 and 6 of the said judgment are extracted hereunder:-

"5. I do not require to go into the details of the contentions and assertions of the parties or as to the validity or otherwise of the order of the Tribunal because I notice that the aforementioned Mr.P.V.Sivadasan had independently approached this Court by filing W.P.(C)No. 38503/2010, which has been considered and disposed of by a learned Single Judge, by judgment dated 11.01.2017 in his favour. The learned Single Judge has already found as under:

The question is whether the petitioner had caused loss to the society and misappropriated any amount The main challenge in this writ petition raised by the learned counsel for the petitioner is that, no amount of evidence can be looked into without there being any pleading. It is submitted that principles of natural justice have been violated in the proceedings. The petitioner also relied upon the judgment of the Hon'ble Supreme Court in State of Maharashtra v. Hindustan Construction Company [2010 (4) SC 518], Trojan & Co. v. R.M.N.N.Nagappa Chettiar (AIR 1953 SC 235], State of Orissa and another v. Mamata Mohanty [2011 3 SC 436] and petitioner also refers to mandate of Rule 67 of the the KCS Rules and submits that this was not followed assuming that the report was filed along with impleading petition befofre the Arbitrator. It is to be noted that the loss sustained by the bank never quantified in the pleadings. The loss now calculated by the Arbitrator is without giving an opportunity to the petitioner to contradict components, which relied for calculating loss caused by the petitioner. In what manner the loss was caused is not known to the petitioner until the award was passed. It is seen from the award as referred above, the liability has been fastened WP(C) NO. 12099 OF 2010 8 taking note of the loan amount disbursed by the petitioner as a Cashier without obtaining signature on those vouchers or against forged signatures. Absolutely there is no such case in the pleadings raised against the petitioner nor was it found out in the documents produced. The primary aspect of giving an opportunity to the petitioner to contradict the calculation was not followed at in the adjudicatory process followed by the Arbitrator. The Arbitrator cannot bypass such procedure and practice. It appears that a approached the dispute as though he was conducting Joint Registrar an enquiry under the KCS Act. It is to be noted that rar has enquiry is different from an adjudication that contemplated under section 69 of For bein adjudication, there must be pre-existing facts being alleged and denied for adjudication. Without dhving an opportunity to the parties to raise pleadings and to defend, no award can be passed against a party. In this case, there is a total violation of the principles of natural justice as the petitioner was never put to notice regarding quantification noe regarding the manner in which liability has to be fastened on him. In the absence of raising any pleadings, as against the petitioner, calling upon to defend. this court is of the view that any quantification of liability is without any basis.

In such circumstances, this court is of the view that the writ petition has to be allowed as authorities below committed jurisdictional error in exercising its power by fastening liability on the petitioner in a suit. Therefore, the writ petition is allowed as against the liability on the petitioner. It is made clear that this court has not interfered with the award passed against others. The writ petition is disposed of as above. No costs."

6. I see that the case of the petitioner in this writ petition is on a much better footing than that of aforementioned Mr.P.V.Sivadasan. I say this because, even in Exhibit P2 order, it has been recorded that there may be some material against Mr.Sivadasan, but as regards the respondents in this case are concerned, as has been extracted above, the Tribunal has found that they had absolutely no responsibility in any of the affairs of the society or that they had benefited by any alleged misappropriation and that one of them was only an Attender having no involvement in the maintenance of the records."

10.On the basis of the said judgment, the learned counsel WP(C) NO. 12099 OF 2010 9 for the petitioner submits that when this court has held that the petitioner cannot be held responsible for conducting the affairs of the Society or misappropriation, the impugned order in Exts.P1, P2 and P4 are unsustainable as the charges are in relation to the misappropriation of the funds by the deceased Honorary Secretary in connivance with the petitioner. He therefore, submits that the impugned orders are to be set aside, the petitioner should be reinstated in service.

11.The charge No.3 is that the petitioner had obtained loan from the Co-operative Society though he could not have become the member of the Society being an employee. The petitioner had obtained the membership in violation of Rule 16(2)(a) of the Kerala Co-operative Societies Rules and thereafter, he availed gold loan of Rs. 2500/- and 4500/- respectively. Rule 16 of the Co-operative Societies Rules prescribes the conditions to be complied with for membership. Sub rule 2 provides that "No persons shall be eligible for admission as member of Co- operative Society if he .......... and "a) is a paid employee of the Society or its financing bank or of any Society for which it is the financing bank, provided that this restrictions shall not apply to Co-operative Motor Transport Societies, Co-operative WP(C) NO. 12099 OF 2010 10 workshops, Societies for the employees of financing banks and Societies formed for the benefit of actual workers."

The petitioner became the member of the management society and the said membership was against the express bar created under the sub rule 2 of Rule 16 of the Co-operative Socialites Rules. The petitioner not only became the member of the Society but also obtained loan. The learned counsel for the petitioner does not dispute the said aspect of charge No.3 being proved against the petitioner. When the charge of misconduct is proved and the domestic enquiry has been held in accordance with the law, this court would not have jurisdiction to interfere with the finding of guilt and order of punishment in exercise of its jurisdiction under Article 227 of the Constitution of India, therefore I find no substance in this writ petition, which is hereby dismissed.

Sd/-

DINESH KUMAR SINGH JUDGE SJ WP(C) NO. 12099 OF 2010 11 APPENDIX OF WP(C) 12099/2010 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE DISMISSAL ORDER DATED 20.11.2001 EXHIBIT P2 TRUE COPY OF THE ORDER IN APPEAL DATED 15.05.2002 OF THE MANAGING COMMITTEE EXHIBIT P3 TRUE COPY OF THE STATMENT SUBMITTED BY THE PETITIONER BEFORE THE LABOUR COURT DATED 23.06.2024 EXHIBIT P4 TRUE COPY OF THE AWARD OF THE LABOUR COURT KANNUR DATED 25.06.2009 IN I.D NO.44/2004 EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 27.02.2010 IN C.C NO. 488/2001 OF THE JUDICIAL FIRST CLASS MAGISTRATE PAYYANNUR.

EXHIBIT P6 TRUE COPY OF THE CHARGE SHEET ISSUED TO THE PETIIONER DATED 21.12.2000 EXHIBIT P7 TRUE COPY OF THE REPLY DATED 03.01.2001 GIVEN BY THE PETITIONER EXHIBIT P8 TRUE COPY OF THE ENQUIRY REPORT DATED 15.10.2001 EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 28.11.2009 IN AP.44/05 OF THE COURT OF KERALA CO-

OPERATIVE TRIBUNAL,THIRUVANANTHAPURAM EXHIBIT P10 TRUE COPY OF THE AWARD DATED 14.07.2010 IN ID 43/06 OF THE HON'BLE LABOUR COURT, KANNUR EXHIBIT P11 TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE UNIT INSPECTOR, CO-OPERATIVE DEPARTMENT, KANNUR DATED 14.08.2000 EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 28.11.2009 IN APPEAL NO-44/2005 AND CONNECTED CASES OF THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 2.3.2017 IN WPC NO-32497 OF 2010 OF THIS HON'BLE COURT.