Sushama S vs Cherthala Service Co-Operative ...
2022 Latest Caselaw 9033 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

          WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944

                              WP(C) NO. 17309 OF 2021

PETITIONERS:

     1         SUSHAMA S.
               AGED 62 YEARS
               VIMAL NIVAS, CMC 22, CHERTHALA P.O.,
               ALAPPUZHA DISTRICT, PIN - 688 524.

     2         VIMAL V.
               VIMAL NIVAS, CMC 22, CHERTHALA P.O.,
               ALAPPUZHA DISTRICT, PIN - 688 524.

     3         VIPIN V.
               VIMAL NIVAS, CMC 22, CHERTHALA P.O.,
               ALAPPUZHA DISTRICT, PIN - 688 524.

               BY ADVS.
               V.VARGHESE
               L.ANNAPOORNA



RESPONDENTS:

     1         STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-
               OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN -
               695 001.

     2         JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)
               OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,
               ALAPPUZHA, PIN - 688 011.

     3         CHERTHALA SERVICE CO-OPERATIVE BANK LTD.NO.1688
               CHERTHALA P.O., ALAPPUZHA DISTRICT,PIN - 688 524, REPRESENTED
               BY ITS SECRETARY.

     4         THE SECRETARY,
               CHERTHALA SERVICE CO-OPERATIVE BANK LTD.NO.1688, CHERTHALA
               P.O., ALAPPUZHA DISTRICT, PIN - 688 524.

     5         MANAGER
               LIFE INSURANCE CORPORATION OF INDIA, DIVISIONAL OFFICE, JEEVAN
               PRAKASH, P.B.NO.609, NAGAMPADAM, KOTTAYAM, PIN - 686 001.

     6         KERALA STATE CO-OPERATIVE EMPLOYEES' PENSION BOARD
               JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P.O.,
               THIRUVANANTHAPURAM, PIN - 695 014, REPRESENTED BY ITS
 WP(C) NOs. 17309 & 24211 OF 2021

                                            2



               SECRETARY/JOINT REGISTRAR.

               BY ADVS.
               M.SASINDRAN
               N.RAJAGOPALAN NAIR



OTHER PRESENT:

               SMT RESMI THOMAS-GP




        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2022,

ALONG   WITH   WP(C).24211/2021,     THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE

FOLLOWING:
 WP(C) NOs. 17309 & 24211 OF 2021

                                        3




                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

          WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944

                             WP(C) NO. 24211 OF 2021



PETITIONERS:

     1         SUSHAMA S
               AGED 62 YEARS
               VIMAL NIVAS, CMC 22, CHERTHALA P.O,
               ALAPPUZHA DISTRICT, PIN 688 524

     2         VIMAL V
               VIMAL NIVAS, CMC 22, CHERTHALA P.O,
               ALAPPUZHA DISTRICT, PIN 688 524

     3         VIPIN V
               VIMAL NIVAS, CMC 22, CHERTHALA P.O,
               ALAPPUZHA DISTRICT, PIN 688 524

               BY ADV V.VARGHESE



RESPONDENTS:

     1         CHERTHALA SERVICE CO-OPERATIVE BANK LTD.NO.1688
               CHERTHALA P.O, ALAPPUZHA DISTRICT, PIN 688 524
               REPRESENTED BY ITS SECRETARY-IN-CHARGE

     2         P. SURESH
               S/O. PRABHAKARAN, MALICHIRAYIL, CMC 09, CHERTHALA P.O, PIN 688
               524,CASHIER, CHERTHALA SERVICE CO-OPERATIVE BANK LTD, MORNING
               AND EVENING BRANCH

     3         P. REGHUVARAN
               S/O. PAPPAN, KURISSERI HOUSE, CMC 05
               CHERTHALA P.O, PIN 688 524
               (JUNIOR CLERK, MAIN BRANCH, CHERTHALA SERVICE CO-OPERATIVE BANK
               LTD)

               BY ADVS.
               M.SASINDRAN
               D.VINOD
 WP(C) NOs. 17309 & 24211 OF 2021

                                           4



               K.N.RAJANI
               AYNOSH MICHAEL P.S


        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2022,

ALONG   WITH   WP(C).17309/2021,    THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE

FOLLOWING:
 WP(C) NOs. 17309 & 24211 OF 2021

                                         5




                                  JUDGMENT

The petitioners in these two cases are the legal heirs of

Vamadevan, who unfortunately died on 25.04.2011.

2. Late Vamadevan was working in the 'Cherthala Service Co-

operative Bank Ltd.,' ('Society' for short) as its Manager, when he was

proceeded under a disciplinary enquiry on the allegation that he had

committed misdemeanor and misappropriation; and simultaneously,

the Society initiated Arbitration Cases against him, along with certain

other employees.

3. However, while the afore two proceedings were pending,

Vamadevan died; and consequently, the disciplinary action elapsed,

while the ARCs culminated in an Award dated 23.06.2018, a copy of

which is on record as Ext.P8 in W.P.(C)No.24211/2021.

4. Pending the ARCs, consequent to the death of Vamadevan,

the petitioners were brought on record and they thereafter, challenged

Ext.P8 Arbitration Award before the Kerala Co-operative Tribunal,

Thiruvananthapuram, through appeals, but which were also dismissed

through an order dated 16.02.2021 - a copy of which is available as

Ext.P12 in W.P.(C)No.24211/2021.

5. The petitioners thus challenge the Arbitration Award and

the Appellate order of the Co-operative Tribunal in W.P.

(C)No.24211/2021; while, they seek that the retiral benefits of late WP(C) NOs. 17309 & 24211 OF 2021

Vamadevan be disbursed to them through W.P.(C)No.17309/2021.

6. I have heard Sri.V.Varghese - learned counsel for the

petitioners in both cases; Sri.M.Sasindran - learned Standing Counsel

for the Society and Smt.Resmi Thomas - learned Government Pleader

appearing for the official respondents.

7. Sri.V.Varghese argued extensively on the merits of the

Arbitration Award and the Appellate order of the Tribunal. He

submitted that said Forums proceeded to find liability against late

Vamadevan solely on the basis of certain documents which were not

genuine or original and that they have erred in having relied upon

photocopies of the same and on other secondary evidence. He then

argued that there is no discussion regarding the evidence or the

documents marked during the Arbitration in either of the impugned

orders, but that the Arbitration Court still found that late Vamadevan

was liable to pay large amounts to the Society. He argued that the

Arbitration Court, in fact, ought to have seen that the relevant cash

book, ledger, loan register etc., were not produced and ought to have

properly appreciated the evidence of PW1, who admitted that late

Vamadevan never issued any document from the Society in the names

of Smt.Shajimon, Smt.Sreedevi and Smt.Pushpalatha as alleged

against him. He concluded his submissions saying that, in any event,

the Arbitration Court and the Tribunal ought to have seen that there WP(C) NOs. 17309 & 24211 OF 2021

was no loss occasioned to the Society because they had not paid back

any amounts to the depositors nor did they suffer any detriment in the

gold loan transactions, which is evident from the evidence on record.

He thus prayed that W.P.(C)No.24211/2021 be allowed; with an

adscititious plea that W.P.(C)No.17309/2021 be ordered, directing the

Society to disburse the retiral benefits of late Vamadevan to his clients.

8. In response, Sri.M.Sasindran submitted that the attempt of

the petitioners is to have a virtual re-trial of the Arbitration Cases

before this Court and argued that this is impermissible in law. He

contended that, since the Arbitration Court had gone through the

evidence and documents marked in great detail and discussed the

same, leading to its opinion on it, the petitioners cannot seek its

further re-assessment by this Court, when it acts under Article 226 of

the Constitution of India. He added that this is more so because, the

statutory Tribunal also found, giving cogent reasons, that the

conclusions of the Arbitration Court was without error. He asserted

that petitioners are acting solely on surmises because late Vamadevan

was the Manager of the Branch at the relevant time and the documents

marked in evidence would ineluctably establish his connivance in the

misappropriation and misdemeanor, which has caused loss to the

Society to large sums.

9. As regards the retiral benefits claimed by the petitioners, WP(C) NOs. 17309 & 24211 OF 2021

Sri.M.Sasindran submitted that the Society is yet to obtain the gratuity

amounts from the Life Insurance Corporation of India (LIC), under a

Group Gratuity Scheme, but that as soon as it is received, his client is

entitled to adjust the same, along with pensionary and retiral benefits

of late Vamadevan, into the accounts of the Society. He submitted that,

this is because the amounts adjudicated against late Vamadevan is far

more than his retiral and pensionary benefits, and thus prayed that

both these writ petitions be dismissed.

10. I have considered and evaluated the afore submissions with

great care.

11. I must begin by reminding all the parties to this case that

when orders of the Arbitration Court and that of the Tribunal are

challenged under Article 226 of the Constitution of India. It will not

permit this Court to act as an Appellate body, but that its jurisdiction is

confined to verify whether applicable procedure has been followed

and whether the evidence on record is, prima facie, sufficient to justify

the conclusions.

12. In such perspective, when I examine the Arbitration Award

and the order of the Appellate Tribunal, I am left without doubt that

both the Forums have considered the evidence and documents in

detail; and in fact, the Arbitration Award lists them in support of the

holdings entered into by it. The Tribunal, thereafter, went through the WP(C) NOs. 17309 & 24211 OF 2021

evidence and examined the documents to hold that the Arbitration

Court has acted without error and therefore, I do not see how the

petitioners can now ask this Court to re-appreciate the evidence as if it

is an Appellate Court. On an evaluation of the Award and the order of

the Tribunal, I am without doubt that both the Authorities have acted

correctly in appreciating the evidence on record, in the manner as it

was expected to.

13. That said, the argument of Sri.V.Varghese, that the

documents were photocopies and not the originals are not issues that

can be raised before this Court because it was upto his clients or late

Vamadevan to have objected to it at the time when they were marked

and led in evidence. This, not having been done, it is only hindsight on

their part to now raise such contentions.

14. Needless to say, therefore, this Court cannot find against

the Award of the Arbitration Court or the order of the Tribunal.

15. That said, the corollary question is as to the retiral and

pensionary benefits of late Vamadevan. It is now well settled that the

amounts of gratuity cannot be adjusted against the adjudicated liability

of late Vamadevan; while the family pension is not an estate of the

deceased, but which is owned by his wife or other heirs.

16. The eligibility to obtain amounts under the Provident Fund

and such other, of course, are to be decided by the Society, after WP(C) NOs. 17309 & 24211 OF 2021

hearing the parties and it is not necessary for this Court to enter into a

conclusion on it at this stage.

17. That being so said, I am cognizant of the submissions of

Sri.M.Sasindran that the Society is yet to obtain the amount of gratuity

in the name of late Vamadevan from the LIC.

18. I fail to understand why this is so, but I am certain that

steps should be taken by the Society to receive it immediately, so that

it can be then paid to his wife without any delay.

In the afore circumstances,

a) W.P.(C)No.24211/2021 is dismissed.

b) W.P.(C)No.17309/2021 is ordered, directing the Society to

obtain the eligible gratuity amounts in the name of late Vamadevan

from the LIC at the earliest, but not later than two months from the

date of receipt of a copy of this judgment. On the said amounts being

received by the Society, it shall transfer it to the 1 st petitioner, after

obtaining necessary receipt from her, without any avoidable delay

thereafter.

c) As far as the family pension eligible to the 1 st petitioner in

these cases is concerned, I declare that it cannot be adjusted by the

Society against the liability adjudicated against late Vamadevan, since

it is not part of his estate, but is vested legally with his widow.

d) It is further made clear that, except the assets of late WP(C) NOs. 17309 & 24211 OF 2021

Vamadevan, the Society will not be entitled to proceed against any

other in execution of the Arbitration Award, confirmed by the order of

the Tribunal.

e) As regards the other retiral benefits claimed by the petitioners

are concerned, if the Society intends to adjust the same against the

liability of late Vamadevan, they will issue a proper demand and hear

them, thus culminating in an appropriate order.

f) I leave open the contentions of the petitioners as regards the

quantum of gratuity eligible, if they are to find that the amounts

received from the LIC are not commensurate to what was eligible to

late Vamadevan under Rule 59 of the Kerala Co-operative Societies

Rules.

To facilitate direction (c) above, the Society, if it has not already

done, will forward the pension papers of late Vamadevan, along with

the eligible contribution to the Kerala State Co-operative Pension

Board, within a period of one month from the date of receipt of a copy

of this judgment; which Authority will, thereupon, ensure that eligible

family pension is disbursed to the 1st petitioner herein without any

delay thereafter.

SD/-

DEVAN RAMACHANDRAN JUDGE rp WP(C) NOs. 17309 & 24211 OF 2021

APPENDIX OF WP(C) 24211/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ARC NO. 127/2006 FILED BY THE 1ST RESPONDENT BEFORE THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, CHERTHALA

Exhibit P2 TRUE COPY OF THE ARC NO. 129/2006 FILED BY THE 1ST RESPONDENT BEFORE THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, CHERTHALA.

Exhibit P3 TRUE COPY OF THE ARC NO. 130/2006 FILED BY THE 1ST RESPONDENT BEFORE THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, CHERTHALA

Exhibit P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY LATE SRI P. VAMADEVAN IN ARC 127/2006 BEFORE THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, CHERTHALA

Exhibit P5 TRUE COPY OF THE WRITTEN STATEMENT FILED BY LATE SRI P. VAMADEVAN IN ARC 129/2006 BEFORE THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, CHERTHALA.

Exhibit P6 TRUE COPY OF THE WRITTEN STATEMENT FILED BY LATE SRI P. VAMADEVAN IN ARC 130/2006 BEFORE THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, CHERTHALA.

Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 28-08-2010 IN A.P 44/2009 BEFORE THE KERALA CO-OPERATIVE TRIBUNAL.

Exhibit P8 TRUE COPY OF THE AWARD DATED 23-06-2018, DECREEING ARC NOS 127/2006, 129/2006 AND 130/2006 AND DISMISSING ARC NO. 128/2006 OF THE ARBITRATOR

Exhibit P9 TRUE COPY OF THE APPEAL NO. 85/2018 FILED BY THE PETITIONERS BEFORE THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM

Exhibit P10 TRUE COPY OF THE TRUE COPY OF THE APPEAL NO.

86/2018 FILED BY THE PETITIONERS BEFORE THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. WP(C) NOs. 17309 & 24211 OF 2021

Exhibit P11 TRUE COPY OF THE TRU COPY OF THE APPEAL NO. 87/2018 FILED BY THE PETITIONERS BEFORE THE KERALA CO- OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM

Exhibit P12 TRUE COPY OF THE COMMON JUDGMENT DATED 16-02-2021 IN REVISION PETITION NO. 6/2019, APPEAL NOS. 85/2018 , 86/2018 AND 87/2018 BEFORE THE KERALA CO- OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. WP(C) NOs. 17309 & 24211 OF 2021

APPENDIX OF WP(C) 17309/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE NOTIFICATION NO.874(E) DATED 01/10/1987 ISSUED BY THE GOVERNMENT OF INDIA.

Exhibit P1A TRUE COPY OF THE TYPED COPY OF EXT.P1.

Exhibit P2 TRUE COPY OF THE REPRESENTATION DATED 19/03/2021 FILED BY THE 1ST PETITIONER BEFORE THE SOCIETY.

Exhibit P3 TRUE COPY OF THE LETTER NO.B/1688/145/18 DATED 30/01/2018 OF THE ASSISTANT REGISTRAR (GENERAL), CHERTHALA.

Exhibit P4 TRUE COPY OF THE LETTER NO.PB/PRO/2300/2021 DATED 29/03/2021 OF THE SECRETARY OF THE PENSION BOARD.

Exhibit P5 TRUE COPY OF THE LETTER NO.PB/PRO/2300/2021 DATED 10/12/2021 OF THE 6TH RESPONDENT

Exhibit P6 TRUE COPY OF THE PLAINT IN ARC NO.128/2006 FILED BY THE BANK BEFORE THE ARBITRATOR.

Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 25.6.2012 IN WPC.8402/2012 OF THIS HON'BLE COURT.

Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 10.08.2020 IN WPC.NO.24728/2013 OF THIS HON'BLE COURT.

RESPONDENT EXHIBITS

Exhibit R5(a) A TRUE COPY OF THE COST & BENEFIT SCHEDULE FOR THE ARD 28/02/2011.

Exhibit R4(A) A TRUE COPY OF THE CHARGE MEMO DATED 29.10.2003 ISSUED TO THE DECEASED VAMADEVAN.

Exhibit R4(B) A TRUE COPY OF THE SURCHARGE ORDER DATED 04.03.2009 ISSUED BY THE JOINT REGISTRAR AGAINST THE PETITIONER.

Exhibit R4(C) A TRUE COPY OF THE ORDER OF THE ARBITRATOR UNDER WP(C) NOs. 17309 & 24211 OF 2021

SECTION 69 ACT, IN THE ARBITRATION CASES FILED BY THE SOCIETY AGAINST THE DECEASED VAMADEVAN, DATED 23.06.2018.

Exhibit R4(D) A TRUE COPY OF THE ORDER DATED 16.02.2021 OF THE KERALA CO-OPERATIVE TRIBUNAL.

PETITIONER EXHIBITS

Exhibit P6 TRUE COPY OF THE PLAINT IN ARC NO.138/2006 FILED BY THE BANK BEFORE THE ARBITRATOR.

Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 25.06.2012 IN W.P.

(C)NO.8402/2012 OF THIS HON'BLE COURT.

Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 10.08.2020 IN W.P.

(C).NO.24728/2013 OF THIS HON'BLE COURT.