Kerala High Court
U.Jayasree vs Thekkekara Service Co-Operative ... on 10 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
WP(C).No.136 OF 2021(N)
PETITIONER/S:
U.JAYASREE
AGED 53 YEARS
D/O.LATE C.N.KRISHNAN NAIR, ASSISTANT SECRETARY,
THEKKEKARA SERVICE CO-OPERATIVE BANK (NOW UNDER
DISMISSAL), RESIDING AT BODHI (PANOOR), PONAKAM,
MAVELIKKARA P.O., ALAPPUZHA.
BY ADVS.
SRI.R.SUNIL KUMAR
SMT.A.SALINI LAL
SHRI.ARUN KRISHNA
RESPONDENT/S:
1 THEKKEKARA SERVICE CO-OPERATIVE BANK LTD NO A 218,
REPRESENTED BY ITS SECRETARY, PONAKAM, MAVELIKKARA
P.O., ALAPPUZHA.
2 MANAGING COMMITTEE,
THEKKEKARA SERVICE CO-OPERATIVE BANK LTD.NO.A 218,
REPRESENTED BY ITS PRESIDENT, PONAKAM, MAVELIKKARA
P.O., ALAPPUZHA.
3 DISCIPLINARY SUBCOMMITTEE,
THEKKEKARA SERVICE CO-OPERATIVE BANK LTD.NO.A 218,
REPRESENTED BY ITS CHAIRMAN, PONAKAM, MAVELIKKARA
P.O., ALAPPUZHA.
R1-2 BY ADV. SRI.M.RAJESH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.136 OF 2021(N)
2
JUDGMENT
Dated this the 10th day of February 2021
The challenge in this writ petition is for quashing Ext.P4 memo
of charges dated 6.7.2019 and Ext.P9 order dated 7.12.2020 whereby
the appeal preferred by the petitioner, against Ext.P7, an order
dismissing him from service, has also been dismissed. The petitioner
has an alternate remedy under Section 69 of the Kerala Co-operative
Societies Act. Though, jurisdiction of the writ court can be invoked in
case of jurisdictional error or apparent illegality in initiating the
memo of charges. Concededly the memo of charges Ext.P4 dated
6.7.2019 was issued by a sub committee ,which, constituted as a
disciplinary committee to enquire into the charges. The disciplinary
action against the employee of the co-operative society is covered by
the statutory provisions under Rule 198 of the Co-operative Societies
Rules, 1969, which read thus:
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;
WP(C).No.136 OF 2021(N)
(e) Recovery from pay of the whole or part of any pecuniary loss
caused to the society, by negligences or breach of orders or
otherwise;
(f) Reduction to a lower rank;
(g) Compulsory retirement;
(h) Dismissal from service
(2) No kind of punishment shall be awarded to an employee
unless he has been informed in writing of the grounds on which it
is proposed to take action against and he has been afforded an
opportunity including a personal hearing to defend himself. Every
order awarding punishment shall be communicated to the
employee concerned in writing stating the grounds on which the
punishment has been awarded.
[(2A) The committee of a society shall constitute a disciplinary
sub-committee consisting of not more than three of its members, of
whom one shall be designated as Chairman, but the President of
the committee of the society shall not be a member in the
disciplinary sub-committee.
(2B) The disciplinary sub-committee so constituted shall inquire
into the charges against the employee either by themselves or by
engaging an external agency].
(3) The authority competent to impose the various penalties on
different categories of employees shall be as shown in the table
below:-
Authority competent to impose
_________________________________________________________
Rank of the employee Penalties under (a) to (c) Penalties under (d) to (h)
Secretary/Manager or other President/Chairman Sub-Committee/
Chief Executive Officer and Executive Committee
[all employees holding posts
higher than that of Sr.Clerk/
Sr.Assistant/ I Grade Assistant/
Equivalent other employees
with same or identical scale of pay]
WP(C).No.136 OF 2021(N)
All other employees Secretary/Manager or other President
Chief Executive Officer
(4) An appeal shall be against every order imposing a penalty to the
competent appellate authority, shown in the table below:-
Authority competent to dispose of appeal against
____________________________________________________________
Rank of the Appellant Penalties under (a) to (c) Penalties under (d) to (h)
Secretary/Manager or other Executive Committee or Board of Management
Chief Executive Officer and Board of Management
[all employees holding posts
higher than that of Sr.Clerk/
Sr.Assistant/ I Grade Assistant/
Equivalent other employees
with same or identical scale of pay]
All other employees President Executive Committee/
Board of Management
2. On perusal of the aforementioned Rules, it is evident that
the power to take action against the employee is vested with the
Managing Committee. The Managing Committee is appointed under
Section 20 of the Act, entrusted to manage the affairs of the society. It
is a delegatory of the general body. It would not be in dispute that
Managing Committee can delegate the functions only if the bye laws
or statutory provisions empowers. Section 27 of the Act envisages
that the final authority is vested with the general body of the
members. Rule 198 (2B) clearly points out the nature of powers
conferred on the disciplinary sub-committee. Thus for all intents and
WP(C).No.136 OF 2021(N)
purposes, the Managing Committee alone has the power to issue the
charge memo but not conferred with power to delegate functions to
the sub committee. In support of the contentions the judgment of this
Court dated 21.11.2019 rendered in W.P(C).22228/2019, Ext.P10 has
been relied.
3. The learned Counsel for the society sought time to file
counter.
4. I have heard learned Counsel for the parties. In view of
what has been noticed above, without going to the merits of the
allegations made against the petitioner, this Court while exercising
the power conferred under Article 226 of the Constitution of India,
interferes only with regard to the jurisdictional error regarding the
service of memo of charges by a sub committee. In view of the
provisions referred to above, the sub committee does not have the
power to issue memo of charges as, such role is only vested with the
Managing Committee. Accordingly all the proceedings consequent to
the memo of charges, i.e., Exts.P4 and P7 are quashed.
5. It is a settled law that no person can be suspended beyond
a period of one year as per Rule 198 without the approval of the
Registrar. In such circumstances, this Court is of the view, it is open
for the respondents to reinstate the petitioner in service or to pay full
WP(C).No.136 OF 2021(N)
salary during the period of disciplinary proceedings, if proposed to
be initiated. If the disciplinary proceedings are initiated, it shall be
concluded within a period of three months. If no proceedings are
initiated, the petitioner shall be reinstated in service.
Sd/
AMIT RAWAL
Jm/ JUDGE
WP(C).No.136 OF 2021(N)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED
BY THE PRESIDENT DATED 06.06.2019.
EXHIBIT P2 TRUE COPY OF THE REPLY SUBMITTED BY THE
PETITIONER DATED 07.06.2019.
EXHIBIT P3 TRUE COPY OF THE ORDER OF SUSPENSION DATED
21.06.2019.
EXHIBIT P4 TRUE COPY OF THE CHARGE MEMO DATED
06.07.2019.
EXHIBIT P5 TRUE COPY OF THE WRITTEN SUBMISSION AGAINST
CHARGE MEMO.
EXHIBIT P6 TRUE COPY OF THE ENQUIRY REPORT DATED
08.09.2019.
EXHIBIT P7 TRUE COPY OF THE ORDER OF DISMISSAL DATED
14.05.2019.
EXHIBIT P8 TRUE COPY OF THE APPEAL MEMORANDUM.
EXHIBIT P9 TRUE COPY OF THE ORDER OF THE DIRECTOR
BOARD OF THE RESPONDENT BANK DATED
07.12.2020 (THE DATE IN EXHIBIT P9 IN
WRONGLY SHOWN AS 07.02.2020).
EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN
(WP(C)NO.22228/2019).
EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN
W.A.NO.11/2020.
