Saidu Muhammad T vs The Anakkayam Service ...
2021 Latest Caselaw 21618 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
           THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                         &
               THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
    TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
                               WA NO. 1253 OF 2021
AGAINST THE JUDGMENT DATED 08.09.2021 IN WP(C) 18289/2021 OF HIGH
                       COURT OF KERALA, ERNAKULAM
APPELLANT/PETITIONER IN W.P.(C) NO.18289/2021:
            SAIDU MUHAMMAD T., S SECRETARY (UNDER SUSPENSION),
            AGED 50 YEARS, ANAKKAYAM SERVICE CO-OPERATIVE BANK LTD. NO.F-880,
            RESIDING AT THONDIYAN HOUSE, VATTAPARAMBU, CHAPPANANGADY P.O.,
            KOTTAKKAL (VIA), TIRUR, MALAPPURAM DISTRICT, PIN-676503.
            BY ADV P.P.JACOB


RESPONDENTS/RESPONDENTS I W.P.(C) NO.18289/2021:
     1     THE ANAKKAYAM SERVICE CO-OPERATIVE BANK LTD. NO.F-880,
           ANAKKAYAM, MALAPPURAM-676509, REPRESENTED BY ITS SECRETARY.
     2     THE BOARD OF DIRECTORS OF THE ANAKKAYAM SERVICE CO-OPERATIVE BANK
           LTD. NO.F-880, ANAKKAYAM, MALAPPURAM-676509, REPRESENTED BY ITS
           PRESIDENT.
     3     THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G),
           OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G),
           MALAPPURAM DISTRICT, CIVIL STATION, UPHILL, MALAPPURAM-679322.
     4     THE INSPECTOR OF POLICE,
           VIGILANCE AND ANTI-CORRUPTION BUREAU, KOTTAPPADY,
           DOWNHILL, MALAPPURAM-676505.
     5     THE STATE OF KERALA,
           REPRESENTED BY ITS SECRETARY TO GOVERNMENT, CO-OPERATIVE (C)
           DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.
           BY ADVS.
           D.SOMASUNDARAM
           ARUN CHANDRAN

OTHER PRESENT:
           SRI.SAIGI JACOB PALATTY, SR. GOVT. PLEADER




      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT ON THE

SAME DAY DELIVERED THE FOLLOWING:
 W.A. No.1253 of 2021                                  2




     ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
           ------------------------------------------------------------------
                                W.A. No.1253 of 2021
    [arising out of the impugned judgment dated 08.09.2021 in W.P.(C) No.18289/2021]
                 ------------------------------------------------------
                     Dated this the 02nd day of November, 2021


                                     JUDGMENT

Alexander Thomas , J.

Aggrieved by the impugned Ext.P3 order issued by the 3 rd

respondent Joint Registrar of Co-operative Societies (General),

Malappuram, ordering that the writ petitioner will stand suspended

from service, in view of the provisions contained in Sec.66B of the

Kerala Co-operative Societies Act (hereinafter referred to as the Act),

the petitioner had preferred the instant writ petition, W.P.(C)

No.18289/2021 with the following prayers:-

(i) issue a writ of certiorari or any other writ order or direction calling for the records leading to the issue of Ext.P3 and Ext.P4 and quash the same.

(ii) Declare that the petitioner is entitled to get the protection extended by Article 20(2) of the Constitution of India and there cannot be any disciplinary proceeding or suspension to impose punishment relying on the same offence and that Ext.P3 & 4 proceeding issued by the respondents 2 & 3 are illegal and unsustainable before law.

(iii) Issue such other reliefs which may be deem fit and proper in the facts and circumstances of the above writ petition."

2. The learned Single Judge, as per the impugned judgment

rendered on 08.09.2021, has disposed of the above writ petition (civil)

with the observation that it is for the petitioner to avail the alternate

statutory remedy under Sec.69(2) of the Act. Now being aggrieved by

the said impugned judgment rendered by the learned Single Judge in

the above writ petition (civil), the petitioner has preferred the instant

intra court appeal under Sec.5(i) of the Kerala High Court Act.

3. Heard Sri.P. P. Jacob, learned counsel appearing for the

appellant in the writ appeal/petitioner in the writ petition (civil),

Sri.B.Somasundaram learned counsel appearing for respondents 1 & 2

(Anakkayam Service Co-operative Bank Ltd.), and Sri.Saigi Jacob

Palatty, learned Senior Government Pleader appearing for official

respondents 3-5, in the writ appeal.

4. The main contention raised before us by Sri.P.P. Jacob,

learned counsel appearing for the appellant is that earlier the appellant/

petitioner had to undergo the travail of disciplinary proceedings, which

has culminated as per Ext.P2 penalty order dated 30.09.2020 and that

on the same set of factual basis in the said disciplinary proceedings, the

official respondents have now issued the impugned Ext.P3 proceedings

dated 12.08.2021 at the instance of the 3rd respondent Joint Registrar of

Co-operative Societies, directing the 1st respondent Co-operative Society

to order suspension of the petitioner from service by citing the

provisions contained in Sec.66B of the Act and consequently the 1 st

respondent Co-operative Society has issued the impugned Ext.P4

proceedings dated 17.08.2021 ordering the suspension of the petitioner

from service. The sheetanchor of the case set up by the learned counsel

appearing for the appellant is that the since the very same set of facts

has been utilised for invoking disciplinary proceedings which has

already been finalised and culminated in Ext.P2 penalty order, the

present impugned proceedings at Ext.P3 and the consequent issuance

of Ext.P4 order would be an abuse of the process and would lack even

jurisdictional competence, etc.

5. Per contra, Sri.Saigi Jacob Palatty, learned Senior

Government Pleader appearing for official respondents would point out

that the mere reading of Exts.P3 & P4 would make it clear like day light

that earlier a Sec.65 enquiry proceedings were set in motion by the

respondent Joint Registrar, which has culminated in an enquiry report

under Sec.65. Further that, the letter of the Director of Vigilance and

Anti-Corruption Bureau, in relation to a vigilance case, VC No.4/2020,

which has also been referred to as 2nd paper in Ext.P3. Further it is also

pointed out that it has been reported by the Vigilance and Anti-

Corruption Bureau that the continuance in service of the 3 incumbents

mentioned therein including the writ petitioner, would be harmful and

detrimental to the smooth conduct of the investigation of the Vigilance

case, etc. That, the respondent Joint Registrar has issued Ext.P3 order,

instructing the respondent Co-operative Society to order suspension of

the petitioner from service in view of the provisions contained in

Sec.66B of the Act. Further that the respondent Joint Registrar of Co-

Operative Societies is competent to issue an order in the nature of

Ext.P3 instructing the suspension of the petitioner from service and the

said action would come under the jurisdictional competence of the

respondent Joint Registrar in terms of Sec.66B of the Act. Further that

the very initiation of enquiry under Sec.65 is one of the jurisdictional

parameters, that can be taken into account to order the suspension of

an incumbent from service, by invoking the provisions contained in

Sec.66B of the said Act.

6. Sri.P.P. Jacob, the learned counsel appearing for the

appellant would hotly deny those contentions of the learned Senior

Government Pleader and would point out that the respondents have no

case that the officer of the Vigilance and Anti-Corruption Bureau

referred to in Ext.P3, is necessarily an officer, who is notified in terms of

Sec.68A of the Act, and if that be so, the respondent Joint Registrar will

not have the competence to issue an order in the nature of Ext.P3, etc.

7. In that regard, learned Senior Government Pleader would

submit that he will have to get instructions as to whether the Vigilance

and Anti-Corruption Bureau officers referred to in Ext.P3 is an officer

notified in terms of Sec.68A of the Act and if it is not so, since so long as

there is a Sec.65 enquiry proceedings, that alone would be a permissible

parameter to take a decision to suspend the incumbent from service, for

grounds which are otherwise justifiable. In the instant case the writ

appellant has no dispute that Sec.65 disciplinary proceedings have

already been completed and enquiry report under Sec.65 has also been

furnished as can be seen from a reading of paper No.1 of Ext.P3. That

being so, the only other parameter that may be examined by this Court

is as to whether the grounds cited in Ext.P3 for factually justifying the

suspension from service is tenable, etc. and that the recommendations

made by the officer of Vigilance and Anti-Corruption Bureau who may

not have been notified under Sec.68 of the Act, can also be source of

information to decide as to whether the continuance of the officer would

be detrimental to the surcharge proceedings that have been initiated in

pursuance of Sec.65 enquiry report, etc. Sec.68A and Sec.66B of the

Kerala Co-operative Societies Act provide as follows:-

"68A. Vigilance Officer.- (1)The Government shall appoint an officer, not below the rank of Deputy Inspector General of Police, as Vigilance Officer with powers to enquire into and investigate the cases of misappropriation, corruption and any other major irregularities in the society as may be referred to him by the Registrar.

(2)The Vigilance Officer shall conduct the inquiry and investigation in such manner, as may be prescribed.

(3)The Vigilance Officer shall be under the administrative control of the Registrar of Co- operative Societies:

Provided that the powers of the Registrar of Co-operative Societies under this section shall not be conferred on any other person.

Sec.66B. Suspension of Officers.- If the Registrar, in the course of any enquiry under section 65 or on inspection under section 66 or on audit under section 64 or on the report of Vigilance Officer appointed under section 68A, is satisfied that any officer other than the President, Vice President, Chairman, Vice Chairman and member of the committee of any society, has done any act detrimental to the interest of the society or its members and that there is reason to believe that such officer has indulged in misappropriation, manipulation of accounts, forgery, destruction or tampering of records of the society, he may, for reasons to be recorded in writing issue a direction to the committee of the said society to suspend the officer or officers responsible for the offence forthwith."

8. After hearing both sides, we are prima facie of the view that it

is not necessary for us to get into a resolution of the abovesaid issues

mentioned hereinabove and moreover both sides are not in a position to

submit before us as to whether or not the Vigilance and Anti-Corruption

Bureau officers mentioned in Ext.P3 is an officer notified in terms of

Sec.68A of the Act, etc.

9. We specifically querried to both sides as to whether Ext.P3 is

an appealable order in terms of Sec.83(1)(j) of the Kerala Co-operative

Societies Act and if not whether the government has an obligation and

duty to review the earlier decision referred in Ext.P3. This we said so, as it

is stated in paragraph No.1 of Ext.P3 that Government had also made a

recommendation, which is referred to as 3 rd paper in Ext.P3, that the

appellant be suspended from service as further continuance of the

incumbents including the petitioner in the service of Co-operative Society,

would be detrimental and harmful for the proper conclusion of the

proceedings, etc.

10. In the light of the abovesaid aspects we are of the view that

the said recommendation and decision of the Government referred to in

Ext.P3, which is having adverse consequences on the writ petitioner

should be treated as an appealable order in terms of Sec.83(1)(j) of the

Kerala Co-operative Societies Act, etc. Further even if it is not so, we are

of the firm view that since the Government has taken a considered

decision in Ext.P3 so as to make a recommendation that the continued

retention of the writ petitioner may not be conducive in the best interest

of the Society, etc. The said decision of the Government will have to be

reconsidered and reviewed by them in a timely manner inasmuch as the

said decision is falling within the province of suspension of an employee

from service. Even as per the Manual of Disciplinary Proceedings framed

by the Government, followed in Government departments, the

Government/Department head concerned has an obligation to review

the suspension aspects in a timely manner like once in 6 months or 3

months, etc. Hence, even if the decision of the Government referred to in

Ext.P3 is not appealable in terms of Sec.83(1)(j) or even if taken that

the period of limitation of 2 months stipulated in Sec.83(1)(j) is over,

still the Government is obliged to make a re-look into the matter for the

other reasons stated by us hereinabove.

11. Accordingly it is ordered that the writ appellant may

immediately file appropriate appeal/representation before the

competent authority of the 5th respondent State Government so as to

ventilate his grievances in the matter as against the decisions of the

Government referred to in Ext.P3. Such representation may be filed by

the petitioner before the 5th respondent State Government within 10

days from the date of receipt of a certified copy of this judgment and the

same may be accompanied by a certified copy of this judgment. The

Government will, thereafter, afford reasonable opportunity of being

heard to the writ appellant through his authorised

representative/counsel, if any, and then consider the pleas of the

petitioner in the facts and circumstances of this case, that the

suspension of the petitioner was unwarranted or his continued

suspension from service will not be an imperative or necessary, etc. and

thereafter the competent authority of the State Government may take a

considered decision on those aspects and then communicate the same

to the petitioner as well as to the 3rd respondent Joint Registrar and a

copy of the same should also be made available to the 3 rd respondent

Joint Registrar and the 1st respondent Co-operative Society. Decision in

this regard shall be duly rendered by the 5 th respondent State

Government within 6 weeks from the date of filing of representation by

the writ appellant along with a copy of this judgment.

12. We would make it clear that all other issues raised by the

writ appellant are left open. These crucial aspects of the matter has not

been duly taken note of in the rendering of the impugned judgment in

the writ petition (civil). The impugned judgment dated 08.09.2021 of

the learned Single Judge in W.P.(C) No.18289/2021, will stand set

aside.

With these observations and directions the above writ appeal will

stand finally disposed of.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

VIJU ABRAHAM, JUDGE Skk//11102021