N.Viswanathan vs Kerala Co-Operative Tribunal
2021 Latest Caselaw 4255 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MR. JUSTICE AMIT RAWAL

     FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942

                        WP(C).No.7134 OF 2020(N)


PETITIONER/S:

                N.VISWANATHAN
                T.C. 43/989, MURUGA BHAVAN, MANACUAD,
                THIRUVANANTHAPRUAM

                BY ADVS.
                SRI.B.S.SWATHI KUMAR
                SMT.ANITHA RAVINDRAN
                SRI.HARISANKAR N UNNI
                SMT.P.S.BHAGYA SURABHI

RESPONDENT/S:

      1         KERALA CO-OPERATIVE TRIBUNAL
                OOTTUKUZHI, PALAYAM, THIRUVANANTHAPURAM-695 034

      2         THIRUVANANTHAPURAM TALUK TAX DRIVERS,
                CO-OPERATIVE SOCIETY LTD NO.T.,723, FORT,
                THIRUVANANTHAPURAM,-695 023
                REP. BY ITS SECRETARY
                R2 BY ADV. SRI.N.ANAND
                R2 BY ADV. SRI.BIJITH S.KHAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD         ON
22-01-2021, THE COURT ON 05-02-2021 DELIVERED THE FOLLOWING:
 WP(C).No.7134 OF 2020(N)

                                         2




                               JUDGMENT

Dated this the 5th day of February 2021

The short question involved in the present case is

whether an employee of the Co-operative Society, who has

been dismissed from the service, by availing the

alternative remedy before the Arbitration Court and

Tribunal, can claim compensation despite gainful

employed.

2. The facts in brief are, that the petitioner was

appointed as a Salesman in the 2 nd respondent and while

holding the charge of cashier was served with a charge

memo dated 18.1.2001 of having withdrawn Rs.50,000/- on

1.2.2000 but was not credited to the account of the 2 nd

respondent whereas Rs.8,000/- was deposited on 9.3.2000

as per the cash book, but actually not deposited in the

District Co-operative Bank.

3. Petitioner submitted a detailed explanation.

Dissatisfied with the reply, the petitioner paid the amount WP(C).No.7134 OF 2020(N)

of Rs.20,000/- under protest, but employer appointed

Enquiry Officer. On the conclusion of the enquiry

proceedings, received a show cause notice from the

President of the 2nd respondent regarding proposal to

impose punishment. The petitioner submitted an

explanation by pointing out that the enquiry stood vitiated

for the reason that it was not held in accordance with law.

Thereafter, a subcommittee was constituted with two

persons, which issued another show-cause notice and

proposed the punishment of dismissal. It is in that

circumstances, petitioner preferred ARC No.15/2005

before the Co-operative Arbitration Court,

Thiruvananthapuram. After leading the evidence vide

award dated 25.10.2018, the ARC aforementioned was

dismissed. The said award was challenged before the

Tribunal resulted into a judgment dated 31.10.2019,

Ext.P1, whereby the enquiry report holding the petitioner

liable to pay Rs.50,000/- was found to be illegal, improper

and without following the principles of natural justice

much less behind the back of the delinquent but relief qua WP(C).No.7134 OF 2020(N)

compensation was declined.

4. It is in this background, the petitioner has

approached this Court for claiming the compensation.

5. On the other side, the learned counsel for the

respondent submitted that the Tribunal has no power to

order for reinstatement and the remedy for the petitioner

is to claim compensation before the labour Court as

during the period he remained out of service was gainfully

employed with another employment, which also resulted

into dismissal and another ARC is pending before the

Arbitration Court. In support of the aforementioned

contention, replied upon the ratio decidendi culled out by

the Hon'ble Supreme Court in M.L Singla v. Punjab

National Bank and Another [(2018) 18 SCC 21] as

well as Division Bench judgment of this Court in Ambika

T.N v. Kottappady Service Co-op. Bank Ltd.

[2018(4)KHC 493) .

6. In rebuttal, learned counsel for the petitioner

relied upon the judgment of Single Bench of this Court in

Smitha K. v. Kerala Co-operative Tribunal, WP(C).No.7134 OF 2020(N)

Thiruvananthapuram and Others [2020 (3) KHC 356]

wherein the compensation was awarded applying the

formula enunciated in the judgment of O.P Bhandari v.

Indian Tourism Development Corporation Ltd., [1986

KHC 683].

7. I have heard the learned counsel for the parties

and appraised the paper book. To decide the question

raised above, the facts of the case as noticed above are not

in dispute. It is a conceded position on record that the

petitioner was suspended from the service and thereafter

punishment of dismissal was proposed. Petitioner was

gainfully employed in another society called REPSCO,

where he was also dismissed from the service on account

of allegation of misappropriation. The said dismissal is

under challenge and pending consideration in another

Arbitration Court at the instance of the petitioner. It is

not the case of the petitioner that on account of

termination of the service, he remained out of service

without any salary and therefore was entitled to

compensation as the report of the enquiry officer has not WP(C).No.7134 OF 2020(N)

been found tenable, being, against the principle of natural

justice. The ratio culled out in the judgment of Smitha K.

(supra) was in respect of a case, where the delinquent

employee was, after consideration of the matter awarded

compensation as per the formula arrived at in O.P

Bhandari (supra). There is no dispute to the ratio culled

out but the facts as noticed above reveal that the

petitioner was gainfully employed and has also been

dismissed on account of misappropriation and therefore

his conduct cannot go unnoticed. The Division Bench in

Ambika T.N (supra) held that in the case of a statutory

body, its employee can be reinstated when the impugned

action was in breach of the mandatory obligations

imposed by the Statute and under that circumstances, is

required to raise industrial dispute. Otherwise, the

employee who do no fall in any of the exceptions culled out

in paragraph 6 of the order and as per the judgment of

Supreme Court in Maharashtra State Co-operative

Housing Finance Corporation Ltd. v. Prabhakar

Sitaram Bhandange [2017 (5) SCC 623], the remedy WP(C).No.7134 OF 2020(N)

is to only file a suit in civil court seeking declaration that

termination was wrongful and claim damages.

For the reason aforementioned, I am of the view that

it is not a fit case warranting any interference for

awarding compensation as claimed for. Writ petition is

accordingly, dismissed.

Sd/-

   sab                                  AMIT RAWAL

                                            JUDGE
 WP(C).No.7134 OF 2020(N)





                           APPENDIX
   PETITIONER'S/S EXHIBITS:

   EXHIBIT P1          TRUE COPY OF THE JUDGMENT IN APPEAL

NO.20/2019 DATED 31.10.2019 OF THE 1ST RESPONDENT