Usha Kumari.P.V vs Joint Registrar Of Co-Operative ...
2022 Latest Caselaw 8479 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. 18899 OF 2022

PETITIONER:

               USHA KUMARI.P.V
               AGED 58 YEARS
               W/O JANARDHANAN PILLAI, SECRETARY (RETIRED), THE BALAGRAM
               SERVICE CO OPERATIVE BANK LTD, NO. 1.150, H.O. BALAGRAM, IDUKKI
               - 685 552, RESIDING AT PULIPRA, MUNDIYERUMA, KALLAR P.O.,
               IDUKKI - 685 552.

               BY ADVS.
               P.NANDAKUMAR
               AMRUTHA SANJEEV



RESPONDENTS:

     1         JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
               PAINAVU, IDUKKI - 685 603.

     2         THE ASSISTANT REGISTRAR OF CO OPERATIVE SOCIETIES (GENERAL),
               UDUMPANCHOLA, IDUKKI - 685 554.

     3         THE BALAGRAM SERVICE CO OPERATIVE BANK LTD,
               NO. 1.150, H.O. BALAGRAM, IDKKI - 685 552 REPRESENTED BY ITS
               SECRETARY.


OTHER PRESENT:

               ADV. PARVATHY K (GP)




     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. 18899 OF 2022

                                        2




                                JUDGMENT

The petitioner says that while she was working as a Secretary

of the 3rd respondent - Service Co-operative Bank (hereinafter

referred to as the 'Bank' for short), she was placed under suspension

and disciplinary action initiated on certain imputations and

allegations. She says that, pending such enquiry, she applied for

voluntary retirement, which was accepted by the Bank through

Ext.P2 on 25.08.2020, without any condition being attached to it;

and consequently, that she was relieved with effect from 20.08.2020

as mentioned therein. She asserts that it is, therefore, clear that

disciplinary action against her had been dropped and that there were

no liability legally fixed, thus she being paid the entire salary, after

adjusting the subsistence allowance paid for the period when she

was under suspension.

2. The petitioner alleges that, however, subsequently,

when she applied for retiral benefits, she was issued with Ext.P8

letter dated 22.12.2021, alleging that, while she was relived from

service consequent to her application for voluntary retirement, the

period of suspension was regularized only as Leave Without

Allowances and therefore, that she is to return the entire salary

received by her during that period, namely Rs.7,97,394/-. She adds WP(C) NO. 18899 OF 2022

that, to make it far worse, Ext.P10 dated 21/4/2022 has now been

issued informing her that some assets of the Bank are missing and

that unless she makes up for the same or it is traced, the retiral

benefits cannot be disbursed to her. She thus prays that Exts.P8 and

P10 be quashed and the Bank be directed to disburse to her the

eligible retiral benefits, without any further delay.

3. I have heard Sri.P.Nandakumar - learned counsel for the

petitioner; Sri.P.C.Sasidharan - learned Standing Counsel for

respondent No.3 and the learned Government Pleader -

Smt.Parvathy Kottol, appearing for the official respondents.

4. Sri.P.C.Sasidharan - learned Standing Counsel for the

Bank, in response, submitted that the afore contentions of the

petitioner, as argued by her learned counsel - Sri.P.Nandakumar, are

without basis, because the petitioner had illegally and unlawfully

received salary for the period when she was under suspension,

though it was regularized, at the time when she was relieved from

the services of his client, only as Leave Without Allowances. He

argued that, therefore, unless the petitioner returns the said amount

and makes up the loss caused by her while she was the Secretary of

the Bank, she cannot obtain any retiral benefits, particularly under

the sweep of Rule 198(8) of the Kerala Co-operative Societies Rules

(KCS Rules for short). He thus prayed that this writ petition be WP(C) NO. 18899 OF 2022

dismissed.

5. When I hear Sri.P.C.Sasidharan on the afore lines, it is

clear that there are broadly two impediments stated by the Bank for

the petitioner to be disbursed with her retiral benefits.

6. For the first, the Bank says that the petitioner should

return the entire salary received by her during the period when she

had been under suspension, since it was allegedly regularized only

as Leave Without Allowances.

7. For the second, the Bank takes the stand that certain of

its assets are missing and that unless it is returned by the petitioner

or traced out, she cannot be granted the retiral benefits.

8. As regards the first objection of the Bank, their stand

that the period of suspension was regularized as Leave Without

Allowances can hold water only if they are able to establish, through

cogent and reliable evidence, that they had issued orders to such

effect after notifying and hearing the petitioner. There is nothing on

record to show this as of now, though I am aware that

Sri.P.C.Sasidharan had requested for some time to file counter

pleadings to establish this.

9. As far as the second objection is concerned, even though

the Bank says that there is a liability against the petitioner, it has not

been quantified in terms of law and this has been well settled by this WP(C) NO. 18899 OF 2022

Court in W.P.(C)No.3576/2021. The declarations in this judgment is

unmistakable that the Bank cannot unilaterally hold that there is a

liability without quantifying it through a process of law and I am

certain that in this case also, they would apply in all its force.

10. In the afore circumstances, I am certain that Exts.P8 and

P10 cannot find my favour and that the Bank must reconsider the

claim of the petitioner in terms of law, adverting to the precedents

covering the field.

Resultantly, this writ petition is allowed and Exts.P8 and P10

are set aside; with a consequential direction to the competent

Authority of the Bank to hear the petitioner and consider all the

documents and precedents to be produced and cited in

substantiation of her plea; thus culminating in an appropriate order

and necessary action thereon, as expeditiously as is possible, but not

later than one month from the date of receipt of a copy of this

judgment.

I reiteratingly clarify that recovery of salary paid to the

petitioner can be permitted only if the Bank is able to establish and

prove that they had regularized the period of suspension as Leave

Without Allowances and that too, after hearing and considering her

version.

As far as the alleged liability is concerned, through the afore WP(C) NO. 18899 OF 2022

exercise, the Bank must establish that they have quantified the same

if any, in the manner as has been permitted by this Court in the

aforementioned judgment and other precedents to be cited by the

petitioner.

To obtain an expeditious compliance of the afore directions, I

direct the petitioner to appear before the 3 rd respondent at 11.00 am

on 11.07.2022; on which day, she will either be heard, or a

convenient date fixed for such purpose, culminating in an

appropriate order within the time frame fixed above.

At this time, Sri.Nandakumar intervened to say that whatever

be the contentions of the Bank may have, recovery of subsistence

allowance is impermissible and this has also been sought to be

attempted through Ext.P8.

Certainly, this is an issue that must engage the mind of the

Bank during the afore exercise and I order them to do so.

sd/-

DEVAN RAMACHANDRAN JUDGE rp WP(C) NO. 18899 OF 2022

APPENDIX OF WP(C) 18899/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF LETTER DATED 24.07.2020 SUBMITTED BY THE PETITIONER BEFORE THE PRESIDENT OF THE 3RD RESPONDENT BANK

Exhibit P2 TRUE COPY OF LETTER DATED 25.08.2020 ISSUED BY THE PRESIDENT OF THE 3RD RESPONDENT BANK TO THE PETITIONER.

Exhibit P3 TRUE COPY OF LETTER DATED 05.09.2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT

Exhibit P4 TRUE COPY OF REPRESENTATION DATED 04.02.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

Exhibit P5 TRUE COPY OF LETTER DATED 02.07.2021 ISSUED BY THE 3RD RESPONDENT

Exhibit P6 TRUE COPY OF REPRESENTATION DATED 05.07.2021 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

Exhibit P7 TRUE COPY OF PENSION DOCKET OF THE PETITIONER

Exhibit P8 TRUE COPY OF LETTER DATED 22.12.2021 ISSUED BY THE 3RD RESPONDENT.

Exhibit P9 TRUE COPY OF REPRESENTATION DATED 25.01.2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

Exhibit P10 TRUE COPY OF LETTER DATED 21.04.2022 ISSUED BY THE 3RD RESPONDENT