Unknown vs By Advs
2021 Latest Caselaw 11297 Ker

W.P(C).18751/2020
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              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

               THE HONOURABLE MR. JUSTICE SUNIL THOMAS

    THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                      WP(C).No.18751 OF 2020(T)


PETITIONER
               SABITHA.V, AGED 52 YEARS
               W/O. MURUGHAN V, BILL COLLECTOR (UNDER ORDER OF
               DISMISSAL)
               VADAKKUMBAD SERVICE CO-OPERATIVE BANK LTD NO F 1712
               KANNUR DISTRICT RESIDING AT DEEPAM NIVAS,
               ERANHOLI,
               THALASSERY KANNUR DISTRICT.

               BY ADVS.
               SRI.M.SASINDRAN
               SRI.P.SHAHEED

RESPONDENTS:
       1     VADAKKUMBAD SERVICE CO OPERATIVE BANK LTD. NO. F.
             1712
             VADAKKUMBAD,
             KANNUR DISTRICT 670 105
             REPRESENTED BY ITS SECRETARY

       2       THE COMMITTEE OF THE VADAKUMBAD SERVICE CO-
               OPERATIVE BANK LTD NO. F 1712
               VADAKKUMBAD ,
               KANNUR DISTRICT 670 105
               REPRESENTED BY ITS PRESIDENT.

       3       THE PRESIDENT,
               VADAKKUMBAD SERVICE CO-OPERATIVE BANK LTD NO. F
               1712
               VADAKKUMBAD ,
               KANNUR DISTRICT 670 105

       4       THE JOINT REGISTRAR OF CO-OPERATIVE
               SOCIETIES(GENERAL)
               KANNUR DISTRICT 670 001
 W.P(C).18751/2020
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               R1-3 BY ADV. SRI.K.GOPALAKRISHNA KURUP (SR.)
               R1-3 BY ADV. SMT.ANUROOPA JAYADEVAN
               R1-3 BY ADV. SHRI.ASHRUTH NASER

OTHER PRESENT:

               SR.GP K.P HARISH

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-
03-2021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:
 W.P(C).18751/2020
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                            JUDGMENT

The writ petitioner was a Bill Collector in the service of the first

respondent Co-operative Bank, claimed to have been appointed on

10.12.2009. She was interalia entrusted with the duty of distribution of

social security pension introduced by the Government, to various

eligible members of the society. While so, a complaint was received from

one Zeenath V.C, who was a resident of Ward IV of the Municipality on

13.01.2020 alleging that, she had not received the installment of

pension on two occasions. Consequently, Ext.P1 show cause notice was

issued by the Secretary to the petitioner on 14.01.2020. On 16.01.2020,

Ext.P2 reply was given by the petitioner contending that, she was

innocent. She was entrusted with the duty of distributing pension to the

residents of Ward Nos.I, II and III and she was later entrusted with the

duty of distributing in Ward IV also. Since the identity of the

complainant was not known, she sought the help of local ward member.

The first installment was handed over to the said Zeenath. However,

the second installment could not be delivered by the petitioner. Hence,

the second installment was entrusted to the local ward member,

requesting her to pay it to Zeenath. Later, when she went to supply the

next installment, it was reported that, she was not paid the previous

installment. Accordingly, on enquiry, it was revealed that the ward W.P(C).18751/2020

member had left the country. Hence, the amount due to Zeenath was

given by the petitioner. Her contention was that, there was only delay in

payment due to the above peculiar circumstances and she has not

misappropriated the above amount.

2. Pursuant to Ext.P2 reply, an enquiry is stated to have been

conducted by the committee of three members constituted by the bank.

A report was submitted by them, pursuant to which, Ext.P3 show cause

notice was issued to the petitioner. It was stated therein that, in the

enquiry, petitioner was given an opportunity to appear, place her

contentions and after conducting the enquiry, the enquiry committee

was of the view that the allegations against the petitioner stood

established. On the basis of it, Ext.P3 show cause notice was issued. A

detailed reply reiterating the above contentions were given by the

petitioner as Ext.P4 dated 16.05.2020. By Ext.P5 proceedings of the

President dated 17.07.2020, the complainant was found guilty. The

explanation given by the petitioner was not found to be satisfactory and

hence, she was terminated from service with effect from 20.07.2020.

This order is under challenge in the present proceedings.

3. The specific contention of the petitioner was that, she had

not committed any misconduct and the delay in payment occurred due

to the particular circumstances mentioned by her. No charge sheet

memo was issued by the enquiry committee and an enquiry was also W.P(C).18751/2020

not conducted. She was asked to appear before the three member

committee. She was asked certain questions, to which she replied.

Formal enquiry was not conducted. It was also contended that, report

was not given to her and it has violated the principles of natural justice.

She was called upon to give reply to Ext.P3 show cause notice without

supplying her the copy of the report, in which, findings were arrived at

and Ext.P5 proceedings of the President was also dependent on the

report, which has never seen the light of the day.

4. Heard the learned counsel for he petitioner, learned Senior

Government Pleader and the learned Standing Counsel appearing for

the Co-operative bank. Examined the records.

5. Essential facts are not in dispute. Though, the petitioner has

a specific case that enquiry was not conducted, it seems that, a formal

enquiry by a three member board was conducted. However, the details

of the proceedings, the manner in which it was conducted are not

available since neither the proceedings of the enquiry nor the report are

made available. It is also seen that, no formal charge memo was also

issued to the petitioner. However, the learned counsel for the petitioner

vehemently contended that, enquiry proceedings commenced without

issuing charge memo by the managing committee is not sustainable as

held by this Court in W.P(C).No.22228 of 2019, the judgment of which

was produced as Ext.P6. This was confirmed by the Division Bench of W.P(C).18751/2020

this Court in Kodancherry Service Co-operative Bank v. Joshy

Varghese (2020(4) KLT 129). In the case at hand, no charge memo

has been issued by the committee to the petitioner and no enquiry has

been conducted. Therefore, it was requested that the proceedings may

be quashed.

6. It is true that, in the above decision, it was held that a formal

charge sheet is required and that should be issued not by the sub

committee but by the managing committee. It was held in that decision

that a charge memo issued by the sub committee was vitiated and the

petitioner is entitled to get the enquiry set aside on that ground. It is

further true that, a detailed enquiry as contemplated , with reasonable

opportunity to the petitioner to adduce her evidence is not seen

conducted. The exact nature of enquiry, the number of witnesses

examined, whether the respondent was given an opportunity of getting

in her evidence are also not discernible in the absence of the enquiry

report.

7. Though it seems that, formal charge memo was not issued in

the show cause, the crux of the allegation is mentioned. Reply also

indicates that the specific nature of allegation raised against her has

been disclosed. Her defence is also disclosed in the above reply. Hence,

the only issue that arise now is whether the charges were purposefully

withheld from the petitioner. Both sides understood the charge raised W.P(C).18751/2020

and participated in the enquiry, fully knowing this. Hence, in this

particular case, even in the absence of a formal charge, I am inclined to

accept, that by itself is not sufficient to vitiate the process of enquiry.

8. The specific contention set up by the petitioner was that,

there was no enquiry and that, the allegations against her were not

proved. As mentioned earlier, the enquiry report has not been

produced. Copy of the enquiry report was also not given to the

petitioner. Hence, I am unable to hold that the petitioner was

prejudiced by any of the proceedings at present.

9. The petitioner has also a specific contention that the

punishment imposed on her is highly excessive, since she had a long

meritorious service. Though she had distributed about 2 crores of

rupees as pension on earlier occasions in total, no complaint was raised

against her till now. Hence, it could not be imagined that, petitioner

herself has misappropriated a paltry sum of Rs.2400/-, it was contended.

In that circumstances, even if all the allegations are proved, maximum

punishment of dismissal from service is unjustified, it was contended.

The bank had a specific contention that the petitioner was a temporary

employee and was appointed on a contract basis. However, the records

produced indicate the proceedings by which the petitioner was

appointed to the post of Bill Collector on a fixed salary. There is nothing

in the above proceedings to indicate that, she was appointed on W.P(C).18751/2020

contract basis. However, that alone cannot be a ground for resisting the

termination, in the light of the decision of the Supreme Court in State

of U.P and Another v. K.M.Kumari Prem Lata Misra and Others

(AIR 1994 SC 2411). It was held in that decision that termination of

service of a temporary employee without holding enquiry was not valid

even when it was for unfitness and unsatisfactory work. This decision

squarely applies to the facts of this case and the contention of the bank

is liable to be rejected.

10. The petitioner has yet another case that, though the

domestic enquiry is stated to have been conducted, the copy of the

report was not served on her to enable her to give a detailed reply. The

petitioner to contend the above, relied on the decision of the Supreme

Court in Managing Director, ECIL, Hyderabad v. B.Karunakar

(1993 KHC 995). It was held therein that the copy of the enquiry

report was liable to be furnished to the delinquent employee

irrespective of whether he asked for it or not. It is the right of the

employee to have the report to defend himself against the findings and

the penalty proposed to be imposed. Non-furnishing of the copy of the

report may substantially prejudice the petitioner.

11. In this case, the petitioner has a case that, enquiry was not

conducted. However, it seems that, she has admitted that, she was

called to the committee and was asked questions. As indicated above, W.P(C).18751/2020

the nature of the enquiry, the procedure adopted by the committee of

enquiry and the nature of evidence tendered before the committee are

not discernible from the evidence. As indicated, there is absolutely no

material forthcoming from the part of the bank to substantiate it.

Hence, I feel that, there are sufficient reasons to hold that the petitioner

lost an effective opportunity to defend her case, after perusing the

report. Non-furnishing of the enquiry report is fatal to the termination,

in this case and to that extent, I am inclined to allow the Writ Petition.

12. In the nature of the above finding, without adverting to the

merits of other allegations set up by the petitioner, I am inclined to set

aside Ext.P5 termination order on the ground that the termination

relying on the enquiry report, a copy of which was not furnished to the

petitioner was bad in the light of the law laid down in Managing

Director, ECIL's case (supra). Hence, Ext.P5 stands set aside. The

bank shall immediately furnish a copy of the enquiry report to the

petitioner who shall thereupon be permitted to reply to the action

proposed to be taken. This is also necessary since Ext.P3 evidences that

the order of termination was passed based on a perusal of the enquiry

report.

In the result, the Writ Petition is allowed. Ext.P5 is set aside

and the bank is directed to forthwith serve a copy of the enquiry report

on the petitioner. The petitioner shall thereafter be permitted to give a W.P(C).18751/2020

reply, within a stipulated time to be fixed by the bank, to reply to Ext.P3

show cause notice. The bank shall take decision thereafter. The

contentions of the petitioner on the process of enquiry and all other

defences as mentioned above are left open for appropriate

consideration later.

Sd/-

                                               SUNIL THOMAS

Sbna                                                JUDGE
 W.P(C).18751/2020





                         APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1           TRUE COPY OF THE NOTICE NO. LO1-14012020
                     DATED 14-01-2020 ISSUED BY THE SECRETARY OF
                     THE BANK

EXHIBIT P2           TRUE COPY OF   THE   REPLY DATED 16-01-2020
                     SUBMITTED BY   THE   PETITIONER BEFORE THE
                     SECRETARY

EXHIBIT P3           TRUE COPY OF THE NOTICE DATED 21-04-2020
                     ISSUED BY THE SECRETARY OF THE BANK.

EXHIBIT P4           TRUE COPY OF THE REPLY DATED 16-05-2020
                     SUBMITTED BY THE PETITIONER TO EXT.P3

EXHIBIT P5           TRUE COPY OF THE     ORDER   DATED   17-07-2020
                     ISSUED BY THE BANK

EXHIBIT P6           TRUE COPY OF THE JUDGMENT DATED 21-11-2019
                     IN W.P(C) NO. 22228/2019