Ollur Town Co-Operative Society ... vs Derly K.J
2022 Latest Caselaw 11472 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
         THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                             &
          THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN
FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944
                CON.CASE (C) NO.2399 OF 2022
       AGAINST THE JUDGMENT DATED 26.09.2022 IN WP(C)
           NO.22754/2020 OF HIGH COURT OF KERALA
PETITIONER/PETITIONER:

         DERLY K.J., AGED 50 YEARS, W/O.JOSEPH, KATTUKARAN
         HOUSE, MARATHAKKARA P.O, OLLUR, THRISSUR:680306.


         BY ADV JELSON J.EDAMPADAM


RESPONDENT/RESPONDENT:

         LINTO RAPHAEL
         FATHER'S NAME & AGE NOT KNOWN TO THE PETITIONER
         SECRETARY, OLLUR TOWN CO-OPERATIVE SOCIETY
         LTD.NO.R 1120, COMPANYPADY P.O., OLLUR, THRISSUR
         DISTRICT: -680 306.


         BY ADV.T.R.HARIKUMAR
     THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
09.12.2022, ALONG WITH R.P.NO.1040/2022 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Cont.Case (C) No.2399 of 2022 ,
R.P.Nos.1040, 1120, 1122 & of 2022
                                     2



             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                &
            THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN
FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944
                          R.P NO.1040 OF 2022
         AGAINST THE JUDGMENT DATED 26.09.2022 IN WP(C)
               NO.22754/2020 OF HIGH COURT OF KERALA
REVIEW PETITIONERS/RESPONDENTS 2 & 3:

     1      OLLUR TOWN CO-OPERATIVE SOCIETY LTD NO.R 1120,
            REPRESENTED BY ITS SECRETARY, COMPANYPADY P.O,
            OLLUR, THRISSUR DISTRICT, PIN - 680306.
     2      THE MANAGING COMMITTEE, OLLUR TOWN CO-OPERATIVE
            SOCIETY LTD NO.R 1120, REPRESENTED BY ITS
            PRESIDENT, COMPANYPADY P.O, OLLUR, THRISSUR
            DISTRICT, PIN - 680306.
            BY ADVS.
            T.R.HARIKUMAR
            ARJUN RAGHAVAN

RESPONDENTS/PETITIONER & 1ST RESPONDENT:

     1      DERLY K.J., AGED 50 YEARS, W/O.JOSEPH, KATTUKARAN
            HOUSE, MARATHAKKARA P.O, OLLUR, THRISSUR:680306.
     2      THE KERALA CO-OPERATIVE TRIBUNAL,
            THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY,
            PIN - 695001.
            BY ADV JELSON J.EDAMPADAM
     THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
09.12.2022,  ALONG   WITH  CON.CASE(C)  NO.2399/2022  AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Cont.Case (C) No.2399 of 2022 ,
R.P.Nos.1040, 1120, 1122 & of 2022
                                        3




             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
           THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                        &
             THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN
FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944
                          R.P.NO.1120 OF 2022
AGAINST THE JUDGMENT DATED 26.09.2022 IN W.A.NO.445/2020 OF
                          HIGH COURT OF KERALA
REVIEW PETITIONER/APPELLANT:

            OLLUR TOWN CO-OPERATIVE SOCIETY LTD NO.R 1120,
            REPRESENTED BY ITS SECRETARY, COMPANYPADY P.O,
            OLLUR, THRISSUR DISTRICT, PIN - 680306.
            BY ADVS.
            T.R.HARIKUMAR
            ARJUN RAGHAVAN

RESPONDENTS/RESPONDENTS:

     1      THE KERALA CO-OPERATIVE TRIBUNAL, REPRESENTED BY
            ITS SECRETARY, THIRUVANANTHAPURAM, PIN - 695001.
     2      DERLY.K.J, AGED 50 YEARS, W/O.JOSEPH, KATTUKARAN
            HOUSE, MARATHAKKARA P.O, OLLUR, THRISSUR,
            PIN - 680306.
            BY ADV JELSON J.EDAMPADAM


     THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
09.12.2022,  ALONG   WITH  CON.CASE(C)  NO.2399/2022  AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Cont.Case (C) No.2399 of 2022 ,
R.P.Nos.1040, 1120, 1122 & of 2022
                                        4




             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
           THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                        &
            THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944
                          R.P.NO.1122 OF 2022
AGAINST THE JUDGMENT DATED 26.09.2022 IN W.A.NO.331/2021 OF
                          HIGH COURT OF KERALA
REVIEW PETITIONER/1ST RESPONDENT:

            OLLUR TOWN CO-OPERATIVE SOCIETY LTD NO.R 1120,
            REPRESENTED BY ITS SECRETARY, COMPANYPADY P.O,
            OLLUR, THRISSUR DISTRICT, PIN - 680306.
            BY ADVS.
            T.R.HARIKUMAR
            ARJUN RAGHAVAN


RESPONDENTS/APPELLANT & 2ND RESPONDENT:

     1      DERLY K.J, AGED 50 YEARS, W/O.JOSEPH, KATTUKARAN
            HOUSE, MARATHAKARA P.O, OLLUR, THRISSUR,
            PIN - 680306.
     2      THE KERALA CO-OPERATIVE TRIBUNAL,
            THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY,
            PIN - 695001.
            BY ADV JELSON J.EDAMPADAM
     THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
09.12.2022,  ALONG   WITH  CON.CASE(C)  NO.2399/2022  AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Cont.Case (C) No.2399 of 2022 ,
R.P.Nos.1040, 1120, 1122 & of 2022
                                      5




       K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
---------------------------------------------------
Cont.Case (C) No.2399 of 2022 in WP(C) No.22754 of
  2020, Review Petition Nos.1040 of 2022 in WP(C)
  No.22754 of 2020, 1120 of 2022 in W.A.No.445 of
     2020 & 1122 of 2022 in W.A.No.331 of 2021
---------------------------------------------------
         Dated this the 09th December, 2022

                                O R D E R

K.Vinod Chandran, J.

The review petitions arise from a common

judgment in two writ appeals and one writ petition.

The subject matter of the writ petitions was the

disciplinary enquiry initiated against the 1st

respondent herein, who was the Accountant of the

Society; the review petitioner herein. Disciplinary

proceedings were initiated on charges of

misconducts, including calculation of interest on

certain specified accounts, which the delinquent

employee asserted would not give rise to a charge

of misconduct, especially if the other similar Cont.Case (C) No.2399 of 2022 , R.P.Nos.1040, 1120, 1122 & of 2022

accounts are verified. The disciplinary enquiry

ended in the dismissal of the delinquent, upon

which the delinquent approached the Arbitration

Court, which confirmed the order of the

Disciplinary Authority.

2. On a challenge before the Co-operative

Tribunal, the enquiry report was set aside and

there was a direction to the Arbitration Court to

verify the correctness of the enquiry proceedings

and the enquiry report afresh. The employer filed

the writ petition, in which it was directed that

the employer will be allowed to adduce evidence

before the Arbitration Court, thus ensuring that

the allegation raised of a fair opportunity having

not been given to the delinquent could be rectified

atleast before the Arbitration Court. Both the

employer and the employee filed writ appeals, which

were disposed of by the common judgment, in which Cont.Case (C) No.2399 of 2022 , R.P.Nos.1040, 1120, 1122 & of 2022

we called for a writ petition filed by the employee

challenging the invalidity of the memo of charges;

which was also disposed of by the common judgment.

3. We found that the memo of charges was

issued by the Disciplinary Sub-Committee, while the

appointing authority was the Managing Committee.

Kodanchery Service Co-operative Bank Ltd. v. Joshy

Varghese [2020 (4) KLT 129] found that only an

appointing authority can issue a memo of charges.

The enquiry, hence, stood vitiated by reason of the

subsequent declaration of law by this Court. We

held so and directed the enquiry to be commenced

from the stage at which the enquiry was found to

have been vitiated. Liberty was granted to the

employer to consider the objections to the show-

cause notice filed by the employee and either

accept the objections, dropping the proceedings, or

issue a fresh memo of charges. We also directed Cont.Case (C) No.2399 of 2022 , R.P.Nos.1040, 1120, 1122 & of 2022

that the period when the delinquent employee stood

terminated shall be considered as spent on service

and the entire benefits due to her shall be paid

within a period of one month. The review is filed

only as against the direction to pay the back

wages. As of now, the employee is reinstated in

service, a fresh memo of charges issued and the

delinquent placed under suspension.

4. Sri.Arjun Raghavan, learned Counsel

appearing for the employer Society, would place

reliance on the decision in Chairman-cum-M.D., Coal

India Ltd. v. Ananta Saha [(2011) 5 SCC 142],

wherein it is held that the question of back wages

should be determined by the Disciplinary Authority

in accordance with law, only on the conclusion of

the fresh enquiry, especially when it is the

settled law that if the enquiry ends in a

termination, the same would relate back to the date Cont.Case (C) No.2399 of 2022 , R.P.Nos.1040, 1120, 1122 & of 2022

of the earlier termination; when de novo

proceedings are directed by a judicial forum. It is

also argued that if a binding precedent was not

noticed, it is a self evident error as has been

spoken of in State of Rajasthan v. Surendra Mohnot

[(2014) 14 SCC 77].

5. Sri.Jelson P.Edumpadam, the learned

Counsel appearing for the respondent employee,

however would resist the review petition placing

reliance on Deepali Gundu Surwase v. Kranti Junior

Adhyapak Mahavidyalaya [(2013) 10 SCC 324], wherein

it has been declared that when the employer acts in

gross violation of the statutory provision or gives

short shrift to principles of natural justice or is

guilty of having victimized the employee, then the

Court or Tribunal would be fully justified in

directing payment of full back wages. It is

asserted that, termination is a definite Cont.Case (C) No.2399 of 2022 , R.P.Nos.1040, 1120, 1122 & of 2022

consequence in the de novo enquiry since it is a

deliberate preconceived attempt on the part of the

management. It is also pleaded that, as of now, the

employee has been kept out of service for almost 8

years. Reliance is also placed on a Division Bench

judgment of this Court in Mathew Joseph

v.Registrar of Co-operative Societies [ILR 2022 (4)

Kerala 555].

6. In Surendra Mohnot (supra) the Hon'ble

Supreme Court held that when self evident errors

come to the notice of the Court and they are not

rectified in exercise of review jurisdiction or

jurisdiction of recall, which is a facet of plenary

jurisdiction under Article 226 of the Constitution

of India, a grave miscarriage of justice occurs.

Ignoring a binding precedent or not having noticed

it; as in the present case, would hence be a ground

for review and the failure to exercise such Cont.Case (C) No.2399 of 2022 , R.P.Nos.1040, 1120, 1122 & of 2022

jurisdiction would tantamount to miscarriage of

justice. We have looked at the decisions placed

before us by both the Counsel, which we find is on

distinctive facts.

7. Ananta Saha (supra) was a case in which

serious allegations were made against the employee

and there was violation of statutory provisions in

initiating the enquiry and imposing the punishment;

both, by authorities not competent so to do, under

the statutory regulations. Hence there was a

direction to carry out de novo enquiry from the

stage at which the irregularity was noticed. On the

question of back wages, following the decision of

the Constitution Bench in Managing Director, ECIL

v. B.Karunakar [(1993) 4 SCC 727] it was held so in

paragraphs 49 & 50 of Ananta Saha (supra) :

"49. The issue of entitlement of back wages has been considered by this Court time and again and consistently Cont.Case (C) No.2399 of 2022 , R.P.Nos.1040, 1120, 1122 & of 2022

held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is reinstated, it would not automatically make him entitled to back wages as entitlement to get back wages is independent of reinstatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide U.P. SRTC v. Mitthu Singh [(2006) 7 SCC 180 : 2006 SCC (L&S) 1590 : AIR 2006 SC 3018] , Akola Taluka Education Society v. Shivaji [(2007) 9 SCC 564 : (2007) 2 SCC (L&S) 679] and Balasaheb Cont.Case (C) No.2399 of 2022 , R.P.Nos.1040, 1120, 1122 & of 2022

Desai Sahakari S.K. Ltd. v. Kashinath Ganapati Kambale [(2009) 2 SCC 288 : (2009) 1 SCC (L&S) 372] .)

50. In view of the above, the relief sought by the delinquent that the appellants be directed to pay the arrears of back wages from the date of first termination order till date, cannot be entertained and is hereby rejected. In case the appellants choose to hold a fresh enquiry, they are bound to reinstate the delinquent and, in case, he is put under suspension, he shall be entitled to subsistence allowance till the conclusion of the enquiry. All other entitlements would be determined by the disciplinary authority as explained hereinabove after the conclusion of the enquiry. With these observations, the appeal stands disposed of. No costs."

8. Deepali Gundu Surwase (Supra) was a

case in which there was clear victimization found;

the enquiry itself having been initiated for reason Cont.Case (C) No.2399 of 2022 , R.P.Nos.1040, 1120, 1122 & of 2022

of the teacher in a School, controlled by a family,

having not contributed a specified amount for

settling the tax liability visited on the Trust,

which was in management of the School. The

Tribunal, before which the termination was

challenged, set aside the termination and directed

reinstatement with full back wages, which direction

to disburse full back wages was interfered with by

a learned Single Judge of the High Court. It was

held, affirming the direction issued by the

Tribunal, that the very idea of restoring an

employee to the position which he held before

dismissal or removal or termination of service

implies that the employee will be put in the same

position, in which he would have been put, but for

the illegal action taken by the employer. However,

it was also held that merely for setting aside a

termination, the employee does not get a right to Cont.Case (C) No.2399 of 2022 , R.P.Nos.1040, 1120, 1122 & of 2022

the entire back wages; especially looking at S.11A

of the Industrial Disputes Act, 1947. By S.11A the

Labour Court/Industrial Tribunal is empowered to

interfere with a punishment, if it is

disproportionate to the misconduct proved; when the

Court or Tribunal would also have the discretion

not to award full back wages. That would depend on

the circumstances in which the charge arose, the

gravity of the misconduct, as also the factum of

whether the delinquent was employed elsewhere

gainfully.

9. Having gone through the judgments

placed before us, we are of the opinion that the

facts in the instant case are similar to the facts

in Ananta Saha(supra). As far as Deepali Gundu

Surwase(supra), the facts in that case, as also the

decisions referred to therein indicate a final

determination entered into by the Courts/Tribunal, Cont.Case (C) No.2399 of 2022 , R.P.Nos.1040, 1120, 1122 & of 2022

which set aside the termination ordered as illegal.

However, in Ananta Saha(supra), as is in this case,

there was a de novo proceedings ordered, in which

circumstance the discretion has been left to the

Disciplinary Authority to decide on the back wages,

if eventually a lesser punishment than termination

is ordered or the delinquent is found not guilty.

10. The learned Counsel for the delinquent

had raised submissions about the attempt of the

employer to somehow terminate the service of the

respondent-employee. We cannot, at this stage,

assume that there is a preconceived attempt to

terminate the respondent and that would be a ground

available to the employee, eventually, if

termination is ordered, which also would have to be

established by cogent evidence. As of now, the

direction is only to carry on a de novo enquiry

from the stage of issuance of a memo of charges. Cont.Case (C) No.2399 of 2022 , R.P.Nos.1040, 1120, 1122 & of 2022

11. We also notice that the irregularity

occurred insofar as a Sub Committee, who was not

the appointing authority, issued the memo of

charges, which was found to be bad, by virtue of a

later decision of this Court in Kodanchery Service

Co-operative Bank Ltd.(supra). As far as the

Division Bench judgment of this court in Mathew

Joseph (Supra) placed before us, we find that the

learned Judges had referred to the judgment on

which review is now sought. In view of the decision

of the Hon'ble Supreme Court, we are of the opinion

that the direction to disburse the back wages

within a period of one month has to be reviewed. We

do so and direct the enquiry to be completed within

a period of three months from the date of receipt

of a certified copy of the judgment.

12. The review petitions having been

allowed to the extent prayed for, the contempt case Cont.Case (C) No.2399 of 2022 , R.P.Nos.1040, 1120, 1122 & of 2022

does not survive. The learned Counsel for the

petitioner in the contempt case submits that the

charges now alleged are substantially different

from that alleged earlier. We cannot rule on such

an allegation in the contempt case. As of now the

contempt case stands closed without prejudice to

the above contention of the petitioner.

Sd/-

K.VINOD CHANDRAN, JUDGE

Sd/-co

C.JAYACHANDRAN, JUDGE

sp/09/12/2022 Cont.Case (C) No.2399 of 2022 , R.P.Nos.1040, 1120, 1122 & of 2022

APPENDIX OF CON.CASE(C) NO.2399/2022

PETITIONER'S ANNEXURES:-

ANNEXURE-I THE CERTIFIED COPY OF THE COMMON JUDGMENT IN W.P.(C) NO. 22754 OF 2020, W.A. 445 OF 2020 AND W.A 331 OF 2021 DATED 26.09.2022.

ANNEXURE-II TRUE COPY OF THE LETTER FORWARDING ANNEXURE-I TO RESPONDENT.

ANNEXURE-III TRUE COPY OF THE CHARGESHEET DATED 07.11.2022, ALONG WITH ITS FORWARDING LETTER.

ANNEXURE-IV TRUE COPY OF THE LETTER DATED 17.11.2022, ISSUED BY THE PRESIDENT OF THE BANK.