R.Radhakrishnan vs The Nedumangad Housing ...
2022 Latest Caselaw 8472 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

          WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944

                                WP(C) NO. 14836 OF 2021

PETITIONER:

               R.RADHAKRISHNAN
               AGED 61 YEARS
               SHARON, VENKAVILA, PAZHAKUTTY P.O.NEDUMANGAD,
               THIRUVANANTHAPURAM DISTRICT

               BY ADVS.
               T.R.HARIKUMAR
               ARJUN RAGHAVAN



RESPONDENTS:

     1         THE NEDUMANGAD HOUSING CO-OPERATIVE SOCIETY LTD. NO. T 364
               REPRESENTED BY ITS SECRETARY, NEDUMANGAD P.O.THIRUVANANTHAPURAM
               DISTRICT, PIN-695 541.

     2         THE BOARD OF DIRECTORS OF THE NEDUMANGAD HOUSING CO-OPERATIVE
               SOCIETY LTD NO T 364,
               REPRESENTED BY ITS PRESIDENT, NUDUMANGAD P.O.THIRUVANANTHAPURAM
               DISTRICT, PIN-695 541.

               BY ADV M.HEMALATHA




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2022,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 14836 OF 2021

                                     2




                              JUDGMENT

The petitioner impugns Ext.P9 order of the Co-operative

Arbitration Court (hereinafter referred to as 'the Arbitration Court' for

short) rejecting the objections raised as preliminary issues, with

respect to the domestic enquiry conducted against him by the

respondent - Society.

2. Sri.T.R.Harikumar - learned counsel for the petitioner

explained that various objections were raised, inter alia, that the

Memo of Charges issued to his client was not by the competent

Authority, but by the Sub Committee; that the entire disciplinary

action was vitiated on account of delay; that the Memo of Charges

was, in fact, issued at a time during the pendency of an earlier

Arbitration case, which had been pending before the competent

Authority. He added that it is from the Award in the said Arbitration

case that his client came to be aware that there was a decision

terminating his services and hence, that the entire process has been

done without following due procedure and in blatant violation of the

statutory Scheme.

3. Sri T.R. Harikumar argued that, therefore, the Arbitration

Court had a duty to consider his client's contentions in its proper

perspective, rather than have framed a question merely as to whether WP(C) NO. 14836 OF 2021

the domestic enquiry is vitiated or not. He contented that the specific

contentions of his client ought to have been considered by the

Arbitration Court as preliminary issues; before Ext.P9 could have

been passed.

4. In response, Smt.Hemalatha - learned counsel for

respondents 1 and 2, submitted that, as is evident from Ext.P9, the

Arbitration Court had gone into every aspect in detail to find that

petitioner cannot be granted any benefit, particularly because he was

refusing to co-operate with the disciplinary enquiry. She argued that a

person who comes to equity must do equity and therefore, that the

Arbitration Court had no other option, but to reject his preliminary

objections and issue Ext.P9 order.

5. When I consider the afore submissions, it is indubitable

that the proceedings before the Arbitration Court,

Thiruvananthapuram, is not hinged on equity, but on statutory

principles. The mere fact that petitioner did not co-operate with the

domestic enquiry cannot be a reason to deny him the opportunity of

his objections being considered in its proper perspective. Since the

petitioner had already raised preliminary objections before the

Arbitration Court, it was incumbent upon the said Court to have

considered it, particularly on his contention that the Charge Memo

had been issued by an incompetent Authority, and that too, pending WP(C) NO. 14836 OF 2021

an Arbitration case filed by the Bank before the competent Authority.

6. In the afore circumstances and since I cannot find Ext.P9

to have considered all such aspects in its proper ambit, I deem it

appropriate to allow this writ petition and set aside the same, so that

all the objections of the petitioner can be reconsidered in terms of

law.

Resultantly, but clarifying that I have not entered into the merits

of Ext.P9 or the rival contentions of the parties, except for the purpose

of formulating my opinion as afore; I order this writ petition and set

aside Ext.P9; with a consequential direction to the Arbitration Court

to reconsider the preliminary objections raised by the petitioner and

then to issue an appropriate order thereon, after hearing both sides.

In order to obtain an expeditious compliance of the afore

directions, I direct the parties to mark appearance before the

Arbitration Court at 11.00 am on 20.07.2022; and every endevour

made by the said Court to dispose of the preliminary objections in

terms of law, as expeditiously as is possible thereafter.

sd/-

DEVAN RAMACHANDRAN JUDGE rp WP(C) NO. 14836 OF 2021

APPENDIX OF WP(C) 14836/2021

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE PLANT DATED 1.9.1994 IN ARC NO 49 OF 1994

Exhibit P2 A TRUE COPY OF THE JUDGMENT DATED 17.7.2008 IN WPC NO 18492 OF 2008

Exhibit P3 A TRUE COPY OF THE AWARD DATED 5.9.2008 IN ARC 49 OF 1994 OF THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM

Exhibit P4 A TRUE COPY OF THE ORDER DATED 28.8.2010 IN RP NO 126 OF 2008 OF THE KERALA CO-OPERATIVE TRIBUNAL , THIRUVANANTHAPURAM

Exhibit P5 A TRUE COPY OF THE MEMO OF CHARGES ISSUED BY THE CONVENER OF THE DISCIPLINARY SUB COMMITTEE DATED 3.1.1995

Exhibit P6 A TRUE COPY OF THE PLAINT DATED 29.10.2008 IN ARC NO 155 OF 2008

Exhibit P7 A TRUE COPY OF THE ORDER DATED 29.10.2008 IN IA NO 136 OF 2008 IN ARC NO 155 OF 2008

Exhibit P8 A TRUE COPY OF THE ORDER DATED 6.2.2010 ISSUED BY THE SECRETARY OF THE GOVERNMENT

Exhibit P9 A TRUE COPY OF THE ORDER DATED 23.9.2020 IN ARC NO 155 OF 2008 OF THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM

RESPONDENT EXHIBITS

Exhibit R1(A) TRUE COPY OF THE NOTICE NO.NHCS/5/DE/95 DATED 23-

09-1995.

Exhibit R1(B) TRUE COPY OF THE NOTICE DATED 03-06-1995 BEARING NO. NHCS/6/DE/95 DATED 03-06-1995.

Exhibit R1(C) TRUE COPY OF THE NOTICE DATED 22-06-1995 BEARING NO. NHCS/7/DE/95 DATED 22-06-1995 WP(C) NO. 14836 OF 2021

Exhibit R1(D) TRUE COPY OF THE DAILY NEWS PAPER 'MALAYALA MANORAMA' DATED 31-12-1995.

Exhibit R1(E) TRUE COPY OF THE MINUTES OF THE SITTING DATED 10-

02-1996.

Exhibit R1(F) TRUE COPY OF THE RESOLUTION NOS. 4,5,6,7 AND 8 DATED 10-07-1993.

Exhibit R1(G) TRUE COPY OF THE LETTER DATED 22-11-1993.

Exhibit R1(H) TRUE COPY OF THE LETTER DATED 28-11-1993.

Exhibit R1(I) TRUE COPY OF THE LETTER DATED 6-5-1994.

Exhibit R1(J) TRUE COPY OF THE LETTER DATED 12-05-1994.

Exhibit R1(K) TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED 7-5-1994 BEFORE THE SUB COMMITTEE.

Exhibit R1(I) TRUE COPY OF THE REPORT OF THE SUB COMMITTEE DATED 28-06-1994.