Kerala High Court
P.Ajith Kumar vs The Joint Registrar Of Co ... on 9 April, 2021
W.P.(C) No.3779/2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 9TH DAY OF APRIL 2021/19TH CHAITHRA,1943
WP(C).No.3779 OF 2021(V)
PETITIONER:
P.AJITH KUMAR,
AGED 55 YEARS,
S/O. PURUSHOTHAMAN NAIR, SECRETARY(UNDER
SUSPENSION)
ANDOORKONAM SERVICE CO-OPERATIVE BANK LTD NO. 3127
KEEZHAVOOR, KEEZHAVOOR P.O, ANDOORKONAM,
POTHENCODE, THIRUVANANTHAPURAM 695 584
RESIDING AT BIJU VIHAR, VAVARAMBALAM, POTHENCODE
P.O, THIRUVANNATHAPURAM 695 584
BY ADVS.
SRI.GEORGE POONTHOTTAM (SR.)
SRI.N.ANAND
SMT.NISHA GEORGE
SRI.ARUN CHANDRAN
RESPONDENTS:
1 THE JOINT REGISTRAR OF CO OPERATIVE SOCIETIES
OFFICE OF THE JOINT REGISTRAR OF CO-OEPRATIVE
SOCIETIES, DPI JUNCTION, THYCAUD (PO),
THIRUVANANTHAPURAM 695 014
2 THE ANDOORKONAM SERVICE CO-OPERATIVE BANK,
KEEZHAVOOR, KEEZHAVOOR P.O, ANDOORKONAM,
POTHENCODE, THIRUVANANTHAPURAM 695 584
REPRESENTED BY ITS SECRETARY-IN-CHARGE
3 ADV. J.K AJITH PRASAD,
THE ENQUIRY OFFICER, THE ANDOORKONAM SERVICE CO-
OEPRATIVE BANK, KEEZHAVOOR, KEEZHAVOOR P.O,
ANDORKONAM, POTHENCODE THIRUVANANTHAPURAM 695 584
R2 BY ADV. SRI.P.C.SASIDHARAN
R2 BY ADV. SHRI.AKSHAY VENU
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29-03-2021, THE COURT ON 09-04-2021 DELIVERED THE FOLLOWING:
W.P.(C) No.3779/2021 2
JUDGMENT
Dated this the 9th day of April 2021
Petitioner joined the service of the second respondent society as an
attender on 1/8/2002. On 1/6/2015, he was promoted as the Secretary. Whileso,
on an allegation that there was shortfall of stock of holograms, Ext.P1 show
cause notice dated 23/7/2019 was issued to him. He replied by Ext.P2 denying
the allegations. He was placed under suspension by Ext.P3 dated 5/9/2019.
Later charge memo was issued on 12/9/2019. Disciplinary sub committee was
constituted, which issued Ext.P5 chargesheet. A reply to the charge sheet was
also submitted. The 4th respondent was appointed as the enquiry officer.
2. Though it seems that proceedings of enquiry commenced, period of six
months of suspension expired in the meanwhile. By Ext.P8 resolution dated
19/3/2020, the period of enquiry was extended for another six months. The one
year period of suspension was completed on 4/9/2020. According to the
petitioner, the society is stated to have taken a resolution dated 14/8/2020 and
by Ext.P8, based on the above resolution, a request was made to the joint
registrar to extend the suspension beyond one year. Thereafter the period was
extended by three months from 5/9/2020 by the joint registrar by order dated
14/10/2020. That, period expired on 4/12/2020. In the meanwhile, the enquiry
officer was appointed as the additional Government pleader and special public
prosecutor in the court of trial for atrocities against children under the POSCO
Act. Hence, enquiry could not be completed in the meanwhile. On 6/1/2021, the
petitioner was directed to appear before the enquiry officer. He appeared and
the enquiry proceeding was continued.
3. According to the petitioner, the enquiry is still going on and had not
been completed. Enquiry is being prolonged keeping the petitioner under
suspension and it is violative of all canons of law. According to the petitioner,
this is in violation of Rule 198(6) of the Kerala Co-operative Societies Rules. The
writ petition is filed with prayer to declare that the suspension of the petitioner
from the service is illegal, unjustifiable and contrary to Rule 198 of the Kerala
Co-operative Societies Act and Rules and the petitioner is entitled to be
reinstated.
4. Heard the learned senior counsel for the petitioner, the learned counsel
for the second and third respondents and the learned senior Government
Pleader for the State.
5. It is an admitted fact that the petitioner was placed under suspension
pending enquiry and the enquiry proceedings are yet to be completed. The
petitioner has a specific case that he is being purposefully kept under
suspension due to the enmity of the managing committee. He has a further
specific case that, though the original period of one year was completed on
4/9/2020 and a decision is stated to have been taken by the society on
14/8/2020 for requesting to grant extension of time, the decision was in fact
taken on a date after 4/9/2020 and an ante-dated resolution was prepared.
There is another allegation in the writ petition that even the request for extension
of time beyond one year was submitted to the joint registrar even after the expiry
of one year period.
6. In spite of the specific allegation that the decision to extend the
suspension period and to seek permission of registrar, was taken after the expiry
of one year and that resolution was ante-dated to bring it prior to the date of
expiry of one year period, and further that the request for extension of time was
after the expiry, in the counter affidavit filed by the society, this fact is neither
controverted nor dealt with. Hence, the allegation that the decision was taken
subsequent to the expiry of one year period and an ante date was given and that
the request for extension was made to the joint registrar even after the expiry of
the period remains uncontroverted. Thereafter the extended period expired on
4/12/2020.
7. Pending the proceedings, the second respondent society filed
I.A.No.3/2021 with a prayer to accept Exts.R2(c) and Ext.R2(d). According to the
Society, since the period extended expired on 4/12/2020, on a request of the
society, the Joint Registrar of Co-operative Society by Ext.R2(c) considered the
request of the society to extend the period of suspension from 5/12/2020 by six
months. It was allowed on a condition that the enquiry shall be completed within
the above period. The above order is dated 23/3/2021. Ext.R2(d) is the
proceedings issued by the Society dated 27/3/2021 extending the period of
suspension by six months from 5/12/2020. Ext.R2(d) shows that, the above
decision of the Joint Registrar was pursuant to a resolution of the managing
committee dated 16/3/2021. The reason stated was that the delinquent
employee was not co-operating with the employer. Ext.R2(c) itself shows that the
above extension was without giving an opportunity of being heard at least to the
writ petitioner. It appears that the petitioner has been in continuous suspension
since 5/9/2019 without domestic enquiry being completed. It is also pertinent to
note that it was being successfully extended. The most crucial aspect to be
noted is the fact that the date of the earlier extension expired on 4/12/2020.
However, request for extension from 5/12/2020 was made only by resolution
dated 16/3/2021, which was more than three months after the expiry of the
suspension period.
8. Rule 198(6) of the Rules provides that in no case an employee shall be
kept under suspension for a continuous period exceeding one year without the
prior approval of the Registrar. It shows that the prior approval of the Registrar is
mandatory. This is to ensure that the management does not keep an employee
under suspension for a long time to his detriment by prolonging the enquiry.
Definitely, the safety valve incorporated is that the period shall never be exceed
one year without the prior approval of the Registrar. The original extended
period expired on 4/12/2020. It was extended by three months thereafter. Even
the resolution to seek for further extension of time was passed by the Society
much after the expiry of previous period of suspension This is clearly contrary to
the purport of Rule 198(6) of the Rules. By prescribing that in no case, the
authority shall keep the employee under suspension for a continuous period
exceeding without prior approval indicates that "prior approval" for extension
beyond the period is mandatory and clearly it indicates that the request should
be made before the expiry of the period. In this situation, it was not so done.
The society in its own will and pleasure, cannot request for extension at any
point of time, keeping the employee under suspension for a long period. I feel
that the impugned order is not sustainable for that reason also.
9. The explanation for the delay, as evident from the vague averments
repeatedly made in the counter affidavit was that the petitioner has been willfully
adopting dilatory tactics not to complete the proceedings. Ext.R2(a)
proceedings show that during one year period from 4/2/2020 to 9/2/2021, there
were only 11 sittings. Every day delinquent was present and there is nothing to
show that he had sought unnecessary adjournments. However, it cannot be
accepted as a reason for not completing the enquiry within the stipulated time.
On he other hand, in Ext.R2(b) resolution, the reason for delay is attributed to
spread of Covid-19 only.
10. In the above circumstances, keeping the petitioner under suspension
beyond 4/12/2020, is liable to be held as illegal and suspension should come to
an end with effect from that date. The question whether the application for
extension was made before the expiry of initial period is a matter that requires
more evidence which the petitioner will be entitled to establish at the appropriate
time. Definitely, if it is found that even application for extension after expiry of
first year period was filed much later, probably that may affect the extension
beyond one year period. However, it is a matter on which I refrain from making
comments on, at present.
In the result, the writ petition is allowed. Suspension of the petitioner
beyond 4/12/2020 is held as without authority and nonest. Petitioner is deemed
to be continue in service accordingly with effect from that day. Society shall pass
appropriate orders forthwith.
Sd/-
SUNIL THOMAS
dpk JUDGE
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE COMMUNICATION DATED 25-07-
2019 PREFERRED BY PETITIONER TO THE
CONVENOR, ADMINISTRATIVE COMMITTEE,
ANDOORKONAM SERVICE CO-OPERATIVE BANK
EXHIBIT P1 A TRUE COPY OF THE JUDGMENT DATED 12-07-2019
PASSED BY THIS HON'BLE COURT IN W.P(C) NO.
17908 OF 2019
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 26-08-2019
PASSED BY THIS HON'BLE COURT IN W.P(C) NO.
20291 OF 2019
EXHIBIT P3 TRUE COPY OF THE SUSPENSION ORDER DATED 05-
09-2019 ISSUED BY THE CONVENOR,A
DMINISTRATIVE COMMITTEE, ANDOORKONAM
SERVICE CO-OPERATIVE BANK
EXHIBIT P4 TRUE COPY OF THE CHARGEMEMO DATED 12-09-
2019 ISSUED BY THE CONVENOR, ADMINISTRATIVE
COMMITTEE, ANDOORKONAM SERVICE CO-OPERATIVE
BANK
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 11-12-
2019 ISSUED BY DISCIPLINARY SUB-COMMITTEE
OF RESPONDENT NO. 2 ALONG WITH CHARGE
SHEET.
EXHIBIT P6 TRUE COPY OF THE COMMIUNICATION DATED 27-
02-2020 ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER.
EXHIBIT P7 TRUE COPY OF THE REQUEST DATED 04-03-2020
SUBMITTED BY THE PETITIONER BEFORE THE
ENQUIRY OFFICER
EXHIBIT P8 TRUE COPY OF THE DECISION DATED 19-03-2020
EXHIBIT P9 TRUE COPY OF THE RESOLUTION DATED 14-08-
EXHIBIT P10 TRUE COPY OF THE COMMUNICATION NO. V.K.U
1984/20 DATED 11-09-2020 ISSUED BY THE
ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES
EXHIBIT P11 TRUE COPY OF THE ORDER NO. C.R.P (1)
5890/2020 DATED 14-10-2020 PASSED BY
EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED 20-
12-2020 PREFERRED BY THE PETITIONER BEFORE
THE PRESIDENT, MANAGING COMMITTEE OF THE
2ND RESPONDENT SOCIETIEY
EXHIBIT P12 A TRUE COPY OF THE ACKNOWLEDGEMENT CARD
EVIDECING SERVICE OF EXHIBIT P12
EXHIBIT P13 TRUE COPY OF THE NOTICE DATED 06-01-2021
ISSUED BY THE ENQUIRY OFFICER TO THE
PETITIONER.
EXHIBIT P14 TRUE COPY OF THE REPRESENTATION DATED 09-
01-2021 PREFERRRED BY THE PETITIONER BEFORE
ENQUIRY OFFICER
EXHIBIT P15 TRUE COPY OF THE NOTICE DATED 29-01-2021
ISSUED BY THE ENQUIRY OFFICER TO THE
PETITIONER.
EXHIBIT P16 TRUE COPY OF THE CIRCULAR NO. 34/2010 DATED
03-07-2010 ISSUED BY THE REGISTRAR OF CO-
OPEERATIVE SOCIETIES.
EXHIBIT P17 TRUE COPY OF THE WITNESS LIST SUBMITTED BY
PETITIONER DATED 20.03.2021.
EXHIBIT P18 TRUE COPY OF THE ORDER NO.C.R.P(1)5890/2020
DATED 23/03/2021 ISSUED BY RESPONDENT NO.1.
EXT.R2(A): COPY OF THE PROCEEDINGS OF THE ENQUIRY OFFICER DATED 24
EXT.R2(B): COPY OF THE RESOLUTION NO.10 DATED 14/8/2020 OF THE MANAGING
COMMITTEE.
EXT.R2(C) COPY OF THE ORDER NO.CRP(1)5890/2020 DATED 23/3/2021 ISSUED BY THE
JOINT REGISTRAR OF CO-OPRATAIVE SOCIEIES (GENERAL) THIRUVANANTHAPURAM.
EXT.R2(D): COPY OF THE PROCEEDINGS ISSUED BY THE BANK DATED 27/3/2021.
