Usha.S vs State Of Kerala
2022 Latest Caselaw 9239 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
  WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
                       WP(C) NO. 24712 OF 2022
PETITIONER:

          USHA.S,
          AGED 55 YEARS
          D/O.SUMATHY AMMA , HEAD CLERK, KAREEPRA SERVICE CO-
          OPERATIVE BANK LTD. NO. 3827, USHAS, EZHUKONE P.O,
          KOLLAM 691 505.
          BY ADVS.
          MURALI MADANTHACODU
          NANDU.V


RESPONDENTS:

    1     STATE OF KERALA,
          REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA,
          DEPARTMENT OF CO-OPERATION, SECRETARIAT,
          THIRUVANANTHAPURAM 695 001.
    2     JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES,
          2ND FLOOR, COLLECTORATE BUILDINGS, KOLLAM 691 013.
    3     THE DIRECTOR BOARD, KAREEPRA SERVICE CO-OPERATIVE
          BANK LTD. NO. 3827,
          REPRESENTED BY THE PRESIDENT, KAREEPRA,
          KUZHIMATHICADU P.O, KOLLAM 691 509.
    4     THE KAREEPRA SERVICE CO-OPERATIVE BANK LTD. NO. 3827,
          REPRESENTED BY THE SECRETARY, KAREEPRA,
          KUZHIMATHICADU P.O, KOLLAM 691 509.
          BY ADV P.C.SASIDHARAN


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 24712 OF 2022             2

                              JUDGMENT

The petitioner says that she was working as a Head Clerk, in

the services of the "Kareepra Service Co-operative Bank Ltd"

(Society for short), when she was shifted as a Cashier, with effect

from 09.02.2022. She asserts that she is suffering from intense

respiratory diseases and arthritis, thus being incapacitated to

function as a Cashier, since it involves long periods of sitting duty

and because the dust generated through the handling of cash would

cause irreparable detriment to her.

2. The petitioner says that, therefore, she represented to the

Managing Committee of the Society, requesting that she be shifted

to any other job; and alleges that this has not been considered or

conceded to until today, thus forcing her to approach this Court

through this writ petition.

3. Sri.Murali Madanthacodu - learned counsel for the

petitioner, further explained that when his client had been earlier

posted as a Cashier, she had gone through a similar issue, which led

to disciplinary action being initiated against her, leading to infliction

of a punishment, which is now under challenge by her before the

Board of Directors of the Society. He argued that his client has been

victimized and is being forced to work as a Cashier, in spite of her

physical inability to do so; and thus prayed that Society be directed

to appoint her in any other position, without any further delay. He

then predicated that since his client has been unable to work from

09.02.2022, solely for the afore reasons, her salary cannot be

withheld, as has been now done by the Society; and thus prayed that

they be directed to disburse the same to her forthwith.

4. Sri.P.C.Sasidharan - learned Standing Counsel appearing

for the Society, in response, submitted that no valid document has

been produced by the petitioner before the Society to establish that

she has any physical inability or disease, which incapacitates from

functioning as a Cashier. He accused that the attitude of the

petitioner is extremely deleterious because, when she was asked to

work as a Cashier on 09.02.2022, she refused and has been

remaining out of duty until today. He argued that, therefore, the

Society had no other option but to issue Ext.P14 notice to her

followed, by Ext.P1; and that since she is still refusing to join duty,

they will be now constrained to take necessary disciplinary action

against her.

5. I have considered the afore submissions and have also

gone through the various materials available on record.

6. As I have said above, it is the specific case of the petitioner

that she is unable to work as a Cashier, though being able to take up

any other duty under the Society. Normally, no employee can be

given the liberty of picking and choosing responsibilities or posts, as

he or she may require; though, certainly, it may be available to such

a person to seek the indulgence of the Managing Committee of the

Society for specific reasons. Since the petitioner says that she is

undergoing treatment and unable to work as Cashier on account of

her respiratory problems and arthritis, surely she ought to have

approached the competent Authority of the Society, before she could

have approached this Court through this writ petition.

7. Of course, when I say so, I am aware that it is the specific

case of the petitioner that she has already preferred Exts.P3 and P5

representations before the President and Secretary of the Society

respectively and that it has not been considered until today.

8. As I have already said above, it will be impossible for this

Court to enter into the merits of the rival contentions of the parties

at this stage, particularly when the factual situation is rather

amorphous. I am, therefore, of the firm view that the competent

Authority must take up Exts.P3 and P5 representations and dispose

of the same, after affording her an opportunity of being heard.

9. The question whether she is entitled to salary for the period

from 09.02.2022 is also something which the competent Authority

must consider, including as to whether she is liable to be proceeded

against for having voluntarily kept out of duty. I clarify that these

issues are left open and have not been spoken affirmatively by this

Court in any manner in these proceedings.

Resultantly, I dispose of this writ petition, directing the

competent Authority of the Society to hear the petitioner, adverting

to Exts.P3 and P5 representations made by her and taking note of

any Medical Certificate or such other document that she may

produce during such process; thus culminating in an appropriate

order and necessary action with respect to her request for change of

post and for payment of salary from 09.02.2022, as expeditiously as

is possible, but not later than three weeks from the date of receipt of

a copy of this judgment.

Needless to say, since I have not entered into the merits of any

of the rival contentions, the issue as to whether the petitioner

requires to be proceeded disciplinarily for her absence from

09.02.2022, is also something that the competent Authority will

consider and reflect in the resultant order; however, taking note of

all relevant inputs, including her medical condition, if any.

At this time Sri.Murali Madanthacodu - learned counsel for the

petitioner, intervened to say that his client's arrears of salary from

the year 2015 has not been paid to her, even though the earlier

disciplinary action against her has been completed and punishment

inflicted upon her. He argued that, notwithstanding the fact that his

client has challenged the said proceedings, it is unfair for the Society

to have denied her the arrears of salary and benefits during the

relevant period.

I am afraid that this Court cannot enter into the merits of this

contention either at this stage and that it will be up to the petitioner

to impel it before the competent Authority, who will consider it and

issue appropriate orders, either simultaneous with the afore exercise

or immediately thereafter, in terms of law.

Sd/-

DEVAN RAMACHANDRAN JUDGE raj/MC

APPENDIX OF WP(C) 24712/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER OF THE 3RD RESPONDENT DATED 16.02.2022.

Exhibit P2 TRUE COPY OF THE REPLY OF THE PETITIONER DATED 17.02.2022.

Exhibit P3 TRUE COPY OF THE REPRESENTATION OF THE PETITIONER SUBMITTED BEFORE THE 3RD RESPONDENT DATED 20.06.2022.

Exhibit P4 TRUE COPY OF THE REPRESENTATION OF THE PETITIONER SUBMITTED BEFORE THE 2ND RESPONDENT DATED 14.07.2022.

Exhibit P5 TRUE COPY OF THE REPRESENTATION OF THE PETITIONER SUBMITTED BEFORE 4TH RESPONDENT DATED 17.09.2019.

Exhibit P6 TRUE COPY OF THE REPORT ON ULTRA SOUND SCAN OF THE PETITIONER DATED 15.10.2019.

Exhibit P7 TRUE COPY OF THE MEDICAL CERTIFICATE OF THE SAT, THIRUVANANTHAPURAM DATED 14.12.2019.

Exhibit P8 TRUE COPY OF THE MEDICAL CERTIFICATE OF THE KOTTARAKKARA TALUK, HOSPITAL DATED 01.05.2020.

Exhibit P9 TRUE COPY OF THE TREATMENT CERTIFICATE OF THE GOVT. AYURVEDA HOSPITAL, THIRUVANANTHAPURAM DATED 19.07.2013.

Exhibit P10 TRUE COPY OF THE MEDICAL CERTIFICATE FROM THE DISTRICT HOMEOPATHY HOSPITAL, KOLLAM DATED 16.10.2019.

Exhibit P11 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 07.12.2020.

Exhibit P12         TRUE COPY OF THE ORDER OF THE 4TH
                    RESPONDENT DATED 14.12.2020.
Exhibit P13         TRUE COPY OF THE OUT PATIENT TICKET OF
                    THE DISTRICT HOSPITAL KOLLAM DATED
                    27.12.2021.
Exhibit P14         TRUE COPY OF THE CHARGE SHEET ISSUED BY
                    THE SUB COMMITTEE DATED 13.07.2015.