Kerala High Court
V.T. Jose vs The Parathode Service ... on 9 November, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 9TH DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944
WA NO. 1560 OF 2022
AGAINST THE ORDER/JUDGMENTWP(C) 25949/2019 OF HIGH COURT OF KERALA
APPELLANT/S:
V.T.JOSE
AGED 66 YEARS
S/O.THOMMEN, VADAKKEMULANCHIRA, THELLITHODE,
MANKUVA P.O., IDUKKI DISTRICT, PIN - 685604
BY ADVS.SHAJI THOMAS,MOHAN PULIKKAL
JEN JAISON
RESPONDENT/S:
1 1. THE BOARD OF DIRECTORS OF THE PARATHODE
SERVICE CO-OPERATIVE BANK LTD NO. K 263
REPRESENTED BY ITS PRESIDENT, PARATHODE, IDUKKI
P.O., IDUKKI DISTRICT, PIN - 685584
2 2. THE PARATHODE SERVICE CO-OPERATIVE BANK LTD.
NO. K 263,REPRESENTED BY ITS SECRETARY,
PARATHODE, IDUKKI P.O., IDUKKI DISTRICT ,
PIN - 685584
3 3. THE KERALA STATE CO-OPERATIVE EMPLOYEES
PENSION BOARD,REPRESENTED BY ITS SECRETARY,
P.B.NO. 85, CHINMAYA LANE, THIRUVANANTHAPURM,
PIN - 695001
ADV. SRI. P.C. SASIDHARAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
09.11.2022, ALONG WITH WA.1561/2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.A.NOS.1560 & 1561 OF 2022 :: 2 ::
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 9TH DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944
WA NO. 1561 OF 2022
AGAINST THE ORDER/JUDGMENTWP(C) 7256/2018 OF HIGH COURT OF KERALA
APPELLANT/S:
V.T. JOSE
AGED 66 YEARS
S/O THOMMAN, VADAKKEMULACHIRA HOUSE, PARATHODE, IDUKKI
P.O, IDUKKI DISTRICT., PIN - 685571
BY ADVS.SHAJI THOMAS,MOHAN PULIKKAL
JEN JAISON
RESPONDENT/S:
1 THE PARATHODE SERVICE CO-OPERATIVE BANK LTD.
PARATHODE, IDUKKI P.O, IDUKKI DISTRICT, REPRESENTED BY
ITS SECRETARY, PIN - 685584
2 2. THE MANAGING COMMITTEE OF THE PARATHODE SERVICE CO-
OPERATIVE BANK LTD. NO. K.263
PARATHODE, IDUKKI P.O, IDUKKI DISTRICT, REPRESENTED BY
ITS PRESIDENT, PIN - 685584
3 THE KERALA STATE CO-OPERATIVE ARBITRATION COURT
THIRUVANANTHAPURAM, PIN - 695001
4 THE CO-OPERATIVE TRIBUNAL
THIRUVANANTHAPURAM, PIN - 695001
BY ADV P.C.SASIDHARAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2022,
ALONG WITH WA.1560/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.NOS.1560 & 1561 OF 2022 :: 3 ::
JUDGMENT
Mohammed Nias.C.P. J.,
Writ Petition No. 1560 of 2022 is filed against the judgment
dated 29-07-2022 in W.P.C. No. 25949 of 2019. W.A. No. 1561 of
2022 is filed against the judgment dated, 29-7-2022 in Writ Petition
(C ) No. 7256 of 2018. Both the above writ petitions were decided
by a common judgment.
2. The petitioner in W.P.C. No. 25949 of 2019 was working
as a Senior Clerk in the Parathodu Service Co-operative Bank Ltd.
A show cause notice dated 15-1-2007 was issued to him alleging
misconduct. He was suspended from service with effect from
17-1-2007. A domestic enquiry followed where the charges were
found to be true and by way of punishment, the petitioner was
reverted to the post of Salesman by order dated, 18-09-2007 and
the same was served on him with a direction to join service on 26-
09-2007, revoking the order of suspension. He gave a reply stating
that he would join duty only after his appeal against the
punishment to the managing committee is disposed and thus
refused to join the reverted post. Thereafter, a disciplinary sub
W.A.NOS.1560 & 1561 OF 2022 :: 4 ::
committee was constituted, an enquiry was stated to be conducted
and the petitioner was dismissed from service for unauthorised
absence and willful abandonment of service. Petitioner filed an
appeal which was also dismissed. Thereafter, the employee filed
ARC 191/2008 before the Co-operative Arbitration Court,
Thiruvananthapuram challenging the order of reversion and the
order of dismissal. The Arbitration Court found that the enquiry
with respect to the first charge-sheet and the proceedings were
valid but the punishment was disproportionate. Accordingly,
interfering with the same, the punishment was set aside and bank
was directed to pay all benefits and back wages in the post of
Senior Clerk from the date of suspension till the date of
superannuation. The said order was challenged by the Bank before
the Kerala Co-operative Tribunal as Appeal No. 6 of 2017 which
modified the order to reinstate as the employee had by then
attained the age of superannuation. It was further directed that his
absence from the date of withdrawal from suspension till the
direction to join duty that is 26-09-2007, till the date of
superannuation shall be treated as leave without allowances
granting eligible leave to his credit and leave without allowance for
the remaining period. All the benefits including backwages and
pay revision during the said period with interest at 10% per annum
W.A.NOS.1560 & 1561 OF 2022 :: 5 ::
was directed to be paid. It was also held that he was entitled to all
the pensionary benefits as per law. This order of the Tribunal was
challenged in W.P.C. No. 7256 of 2006 by the bank. The employee
filed W.P.C. No. 2594 of 2009 seeking implementation of the order of
the Tribunal.
3. The learned Single Judge who considered both the writ
petitions proceeded on the basis that the Arbitration Court had
found that the punishment imposed against by the employer was
fair, remitted the matter to the Tribunal to reconsider the appeal of
the Bank exclusively from the standpoint of the employee as to
whether he is entitled to any benefit of being restored to service
as has been ordered by the Arbitration Court, de hors its findings
with respect to the disciplinary action or the punishment imposed
against him thereto, namely reversion to lower post. It is
challenging the common judgment that the employee has filed these
Writ Appeals.
4. The learned counsel for the appellant Sri. Shaji Thomas
submits that he had challenged the punishment imposed in the first
instance as well as the removal from service when he approached
the Arbitration Court. He also argues that the learned Single Judge
W.A.NOS.1560 & 1561 OF 2022 :: 6 ::
found that the punishment was found to be fair by the Arbitration
Court, which is factually incorrect. He urged for the
implementation of the orders of the Tribunal stating that no
interference was warranted in the order of the Tribunal by the
learned Single Judge.
5. The learned counsel for the respondent Bank Sri. P.C.
Sasidharan submits that the appellant could not have challenged the
punishment imposed in the first instance as well as the subsequent
removal, together as both of them arose from different causes of
action and the Tribunal went wrong in not accepting the said
contention. It is also argued that the Arbitration Court having found
that the punishment was disproportionate ought to have relegated
the matter to the bank for considering the quantum of punishment.
The directions of the Arbitration Court as well as the Tribunal,
according to him, were erroneous.
6. On a consideration of the rival submissions and the
pleadings on record, we find that the appellant had impugned the
order of punishment of reversion to a lower post along with the
subsequent order imposing the punishment of removal from service
together in a case that was preferred before the Arbitration Court.
Although these were two separate proceedings and therefore arising
W.A.NOS.1560 & 1561 OF 2022 :: 7 ::
from two separate cause of action, the Arbitration Court appears to
have considered both the proceedings together and disposed the
same by Ext.P6 order dated 18.2.2016. The Arbitral Court in effect
found that the enquiry proceedings that culminated in the
punishment of reversion were valid and could not be found fault
with. That said, the Arbitration Court went on to observe that the
punishment of reversion to three posts below the post currently then
held by the appellant was excessive in nature. Based on the said
finding with regard to the excessive nature of the first punishment,
the Arbitration Court went on to find that the subsequent
punishment imposed of removal from service on account of the delay
in joining the reverted post had to be set aside since it was
dependent upon the first order of punishment which had been
interfered with by the Arbitration Court.
7. In the appeals that were preferred by the respondent bank
against the order of the Co-operative Arbitration Court, before the
Co-operative Tribunal, the Tribunal went on to find that the entire
proceedings, including the proceedings that led to the enquiry
report drawn up in the first enquiry, had to be set aside and
proceeded to do so. It was the said order of the Tribunal that was
impugned by the respondent bank before this Court in
W.A.NOS.1560 & 1561 OF 2022 :: 8 ::
WP(C).No.7256 of 2018, from which these appeals arise. The
appellant herein had also preferred WP(C).No.25949 of 2019 to
implement the order of the Tribunal. Both these Writ Petitions were
disposed by the common judgment dated 29.07.2022, which is
impugned in these appeals before us.
8. We find that the learned Single Judge was right in his
finding that the Tribunal had gone beyond the scope of the appeal
preferred before it by the respondent bank and had gone on to
decide the issue of legality of the enquiry proceedings that led to the
punishment of reversion in the first instance. As rightly pointed out
by the learned counsel appearing for the respondent bank before
the learned Single Judge, this aspect was one that the Tribunal
could not have considered, more so, in the absence of any appeal
preferred by the appellant herein against the finding of the
Arbitration Court that the enquiry proceedings were unassailable.
That said, we find ourselves unable to accept the subsequent finding
of the learned Single Judge in the impugned judgment that remits
the matter to the Tribunal for ascertaining the punishment that can
be imposed on the appellant after setting aside the order of the
Tribunal that was impugned in WP(C).No.7256 of 2018. In our view,
having found that the Tribunal had erred in deciding an issue that
W.A.NOS.1560 & 1561 OF 2022 :: 9 ::
was not the subject matter of an appeal before it, at the instance of
the appellant herein, and noticing that the finding as regards the
legality of the enquiry proceedings had attained finality, the learned
Judge ought to have remitted the matter back to the employer,
namely, the respondent bank, for the purposes of re-determining
the punishment that could be imposed on the appellant pursuant to
the first enquiry. This is more so because there was no occasion for
determining the fate of any subsequent proceedings, especially
when the subsequent proceedings related to the non-joining of the
appellant to the reverted post. In other words, unless the
punishment in the first proceedings is determined, one cannot be
certain as to whether the appellant stood reverted to a lower post,
the non-joining of which led to the second proceedings. It is faced
with such a conundrum that we are constrained now to issue the
following directions taking note of the fact that the appellant has
since retired from the services of the respondent bank.
9. After querying with the learned Standing counsel for
the respondent bank, and accepting his suggestion with regard to
punishment, we deem it appropriate to dispose these Writ Appeals
with the following directions :-
W.A.NOS.1560 & 1561 OF 2022 :: 10 ::
1. The respondent bank shall formally finalise the first
disciplinary proceedings by imposing a lesser punishment of
barring of one promotion on the appellant herein, for the
limited purposes of rendering a finality to the disciplinary
proceedings initiated against the appellant with effect from
the date on which the first punishment of reversion of service
was imposed.
2. In view of the above punishment imposed on the
appellant, and the fact that the appellant has since attained
the age of superannuation, we direct that the period from the
date of imposition of the punishment above, till the date on
which he attained superannuation, shall be treated as service
rendered by the appellant in the post in which he was denied
the subsequent promotion.
3. We make it clear that the said deemed service in the
post shall be considered for the limited purpose of ensuring
that the appellant does not loose the benefit of any
contributory pension for the period that he had actually
rendered service in the respondent bank. In other words, the
deemed service shall not count for any service benefit of the
W.A.NOS.1560 & 1561 OF 2022 :: 11 ::
appellant except for the limited purpose of saving his
pensionary benefits which otherwise would have been denied
to him if the punishment of removal from service was
imposed.
4. The respondent bank shall pass orders in line with
the above directions within a period of three weeks from
today, and forward a copy of the same to the 3 rd respondent
in WP(C).No1560 of 2022, so as to enable the latter to
process the pensionary claims of the appellant for the period
of service actually rendered in the respondent bank.
Sd/-A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/- MOHAMMED NIAS C.P.
JUDGE
prp/ani
W.A.NOS.1560 & 1561 OF 2022 :: 12 ::
APPENDIX OF WA 1561/2022
PETITIONER ANNEXURES
AnnexureA1 TRUE PHOTOCOPY OF THE MEMO CHARGES
DATED 01.06.2007 ISSUED BY THE MEMBERS
OF THE DISCRIPLINARY SUSB COMMITEE OF
THE 2ND RESPONDENT BANK
AnnexureA2 TRUE PHOTOCOPY OF THE ORDER DATED
18.09.2007 ISSUED BY THE DISCRIPLINARY
SUB COMMITTEE OF THE 2ND RESPONDENT
BANK
Annexure3 TRUE PHOTOCOPY OF THE NOTICE DATED
22.10.2007 ISSUED BY THE SECRETARY OF
THE 2ND RESPODNENT BANK
Annexure A4 TRUE PHOTOCOPY OF THE REPRESENTATION
DATED 14.11.2007 SUBMITTED BEFORE THE
PRESIDENT AND THE MANAGING COMMITTEE OF
THE 2ND RESPONDENT BANK
Annexure A5 TRUE PHOTOCOPY OF THE REPRESENTATION
DATED 22.11.2007 SUBMITTED BEFORE THE
PRESIDENT AND THE MANAGING COMMITTEE OF
THE 2ND RESPONDENT BANK
Annexure A6 TRUE PHOTOCOPY OF THE LETTER DATED
10.12.2007 ISSUED BY THE CONVENOR OF
THE DISCIPLINARY SUB COMMITTEE
W.A.NOS.1560 & 1561 OF 2022 :: 13 ::
APPENDIX OF WA 1560/2022
PETITIONER ANNEXURES
Annexure A1 TRUE PHOTOCOPY OF THE MEMO OF CHARGES
DATED 01.06.2007 ISSUED BY THE MEMBERS
OF THE DISCIPLINARY SUB COMMITTEE OF
THE 2ND RESPONDENT BANK
Annexure A2 TRUE PHOTOCOPY OF THE ORDER DATED
18.09.2007 ISSUED BY THE DISCIPLINARY
SUB COMMITTEE OF THE 2ND RESPONDENT
BANK
Annexure A3 TRUE PHOTOCOPY OF THE NOTICE DATED
22.10.2007 ISSUED BY THE SECRETARY OF
THE 2ND RESPONDENT BANK
Annexure A4 TRUE PHOTOCOPY OF THE LETTER DATED
10.12.2007 ISSUED BY THE CONVENOR OF
THE DISCIPLINARY SUB COMMITTEE
Annexure A5 TRUE PHOTOCOPY OF THE QUESTIONS ASKED
BY THE DISCIPLINARY SUB COMMITTEE
MEMBERS TO THE APPELLANT ON 08.12.2007
AND THE ANSWERS RECORDED BY THE
DISCIPLINARY SUB COMMITEE
