Kerala High Court
S. Yadava vs The Kerala State Co-Operative ... on 2 August, 2021
WA No.727/2021 1/9
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
Monday, the 2nd day of August 2021 / 11th Sravana, 1943
WA NO. 727 OF 2021
AGAINST JUDGMENT DATED 22.3.2021 IN WP(C) 23480/2020 OF THIS COURT.
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APPELLANT/PETITIONER:
S. YADAVA,AGED 58 YEARS, S/O. LATE KANNA BELCHAPADA,
RESIDING OPPOSITE TO BANDIYOD JUMMA MASJID, NH-66,
MANGALPADY (PO), KASARAGOD DISTRICT PIN - 671 324.
BY ADVS. M/S.JAWAHAR JOSE & CISSY MATHEWS
RESPONDENTS/RESPONDENTS:
1.THE KERALA STATE CO-OPERATIVE BANK,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
P.B. NO. 6515, CO-BANK TOWERS, PALAYAM,
THIRUVANANTHAPURAM, PIN - 695 033.
2.THE GENERAL MANAGER, KERALA STATE CO-OPERATIVE BANK,
REGIONAL OFFICE, TALAP, KANNUR, PIN - 670 002.
ADDL.R3 & R4 IMPLEADED.
ADDLR3. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
ADDL.R4. THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
JAWAHAR SAHAKARANA BHAVAN, D.P.I. JUNCTION, THYCAUD (P.O.),
THIRUVANANTHAPURAM-695014.
P.T.O.
WA No.727/2021 2/9
(ADDITIONAL R3 AND R4 ARE IMPLEADED AS PER ORDER DATED 03/06/2021 IN IA
1/21 in WA 727/2021)
BY SRI.GILBERT GEORGE CORREYA, STANDING COUNSEL FOR R1 & R2.
SRI.SAIGI JACOB PALATTI, SENIOR GOVERNMENT PLEADER FOR R3 & R4.
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the further proceedings, with respect to the continuation of
disciplinary proceedings which has been initiated as per Exhibit-P3,
pending the disposal of writ petition.
This Writ Appeal again coming on for orders on 02.08.2021 upon
perusing the appeal memorandum,and this court's order dated 17.05.2021 the
court on the same day passed the following:
P.T.O.
WA No.727/2021 3/9
EXT.P3:TRUE COPY OF THE MEMO OF CHARGES DATED 26.02.2020.
WA No.727/2021 4/9
ALEXANDER THOMAS & A. BADHARUDEEN, JJ.
================================
Writ Appeal No.727/2021
(Arising out of the judgment in W.P.(C)No.23480/2020 )
================================
Dated this the 2nd day of August, 2021
ORDER
Heard Sri.Jawahar Jose, learned Counsel appearing for the
appellant/petitioner in the W.P.(C), Sri.Gilbert George Correya,
learned Standing Counsel for the Kerala Co-operative Bank,
appearing respondents 1 & 2 and Sri.Saigi Jacob Palatti, learned
Senior Government Pleader appearing for respondents 3 & 4.
2. The learned Counsel for the appellant seeks interim
relief of stay of further proceedings pursuant to the continuation of
disciplinary proceedings initiated as per Ext.P3, memo of charges
dated 26.2.2020 issued by the respondent erstwhile employer.
While in service, the appellant had been served with Ext.P3 memo
of charges dated 26.2.2020 issued by the then employer
(Kasargode District Co-operative Bank) which was subsequently
merged with the respondent Kerala State Co-operative Bank with
effect from 29.12.2020. The appellant has retired from service on
30.5.2020. The terminal benefits due to the appellant consequent
to his retirement have been withheld by respondents 1 & 2 on the
ground that disciplinary proceedings in pursuance of Ext.P3 memo
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Writ Appeal No.727/2021
of charges have not been finalised.
3. Rule 198(7) of the Kerala Co-operative Societies Rules
reads as follows:
"Rule 198.Disciplinary Action:- (1) Any member of the
establishment of a Co-operative Society may for good and sufficient
reasons, be punished by imposing any of the following penalties,
namely:-
(a) Censure;
(b) Fine (in the case of employees in the last grade);
(c) Withholding of increments with or without cumulative
effect (d) Withholding of promotion;
(e) Recovery from pay of the whole or part of any pecuniary
loss caused to the society, by negligence or breach of orders or
otherwise;
(f) Reduction to a lower rank;
(g) Compulsory retirement;
(h) Dismissal from service.
xxx xxx xxx
xxx xxx xxx
(7) In the event of any pendancy of disciplinary proceedings
against any employee of a co-operative society or any co-operative
institution pursuant to any charge of grave misconduct,
irregularity, corruption or other charge involving moral turpitude,
no retirement benefits shall be sanctioned to such employee or
retired employee and in case of sanctioning of any retirement
benefits to any such employee or retired employee, the name and
designation of the sanctioning authority together with the reason
for such sanctioning shall be recorded by the sanctioning authority
by himself and such authority shall be held responsible for any loss
to the society owing to such sanctioning of retirement benefits if
found that such sanctioning was unwarranted."
4. It is urged by the learned Counsel for the appellant that
there are no provisions anywhere in the Kerala Co-operative
Society Rules or in the bye-laws or in the service regulations of the
respondent bank, which envisage that disciplinary proceedings in
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Writ Appeal No.727/2021
pursuance of memo of charges issued to an incumbent prior to
retirement, can be continued even after retirement, if the same has
not been finalised before his/her retirement. That such provisions
are not akin to that in Rule 3 Part III KSR or Rule (9) CCS
(Pension) Rules and such provisions permitting continuance of the
disciplinary proceedings even after retirement of the employee as
envisaged in Rule 3 Part III KSR, which govern the State
Government Employees or Rule 9 of CCS (Pension) Rules, which
governs Central Government employees or in the CDA Rules as
dealt with in Rabindranatha Choubey Chairman-cum-
Managing Director, Mahanadi coalfields Limited v.
Rabindranath Choubey (2020 SCC Online SC 470)] are not
available in the instant case. Hence it is urged that the jural
relationship of the employer and employee has snapped with the
retirement of the employee and that therefore, there is no
jurisdiction to the erstwhile employer to continue any disciplinary
proceedings after the retirement of the employee, if such
disciplinary proceedings pursuant to memo of charges issued prior
to the retirement have not been finalised before the retirement of
the incumbent concerned.
WA No.727/2021 7/9
Writ Appeal No.727/2021
5. The said submission is strongly refuted by Sri.Gilbert
George Correya, learned Standing Counsel appearing for the
Kerala State Co-operative Bank. He would pointedly argue that
sub rule 7 of Rule 198, which is the statutory rule framed by the
State Government, in exercise of the rule making powers conferred
as per the Kerala Co-operative Societies Act would throw light to
that aspect and it is clearly stipulated therein that no retirement
benefits shall be sanctioned to such employee or retired employee,
who has retired during the pendency of any disciplinary
proceedings and further that the name and designation of the
sanctioning authority together with reasons for such sanctioning
retirement benefits shall be recorded by the sanctioning authority
and such authority shall be held responsible for any loss to the
society owing to such sanctioning of the retirement benefits, if it is
later found that such sanctioning was unwarranted, etc.
6. After hearing both sides, it appears that there are no
provisions akin or pari materia to the provisions as in Rule 3 Part
III KSR or Rule 9 of the CCS (Pension) or the CDA rules dealt with
in Mahanadi coalfields Limited's Case supra. Hence the
petitioner has made out a strong prima facie case that, in the
WA No.727/2021 8/9
Writ Appeal No.727/2021
absence of any such enabling provisions, continuance of
disciplinary proceedings after the retirement of the incumbent
concerned may be without jurisdiction.
7. In the light of the abovesaid aspects, it is ordered that
continuance of the disciplinary proceedings in pursuance of Ext.P3
memo of charges dated 26.2.2020 issued by the respondent bank
shall remain stayed and shall be kept in abeyance. This order will
be in force for a period of one month. The issue as to whether the
terminal benefits due to the petitioner have to be released and if so
when, will be decided later. However, it is made clear that the
pendency of this Writ Appeal will not stand in the way of the
respondent-State Co-operative Bank in initiating Arbitration
Reference Case (ARC) before the competent authority in terms of
Section 69 of the Kerala Co-operative Societies Act seeking for
recovery of any alleged pecuniary loss said to have been sustained
by the Bank on account of the alleged acts of omission or
commission of the appellant and if so preferred, the said
proceedings may be proceeded strictly in accordance with law.
8. The learned Senior Government Pleader submits that
this Court had ordered that the stand of the State of Kerala and the
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Writ Appeal No.727/2021
department should also have been made known to this Court on
the present issue and that some more time is required in the
matter. Time granted to both sides. All parties concerned will get
ready for early disposal of the main matter in the appeal,
preferably by the next posting date or immediately thereafter.
List this matter on 25.9.2021.
H/O.
Sd/
ALEXANDER THOMAS, JUDGE
sd/
A. BADHARUDEEN, JUDGE
jm/
02-08-2021 /True Copy/ Assistant Registrar
