Kerala High Court

Velloor Service Co-Operative ... vs Liji Thankappan on 18 January, 2023

           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 18TH DAY OF JANUARY 2023 / 28TH POUSHA,
                                     1944
                          WA NO. 87 OF 2023
AGAINST THE ORDER/JUDGMENTWP(C) 15550/2022 OF HIGH COURT
                                OF KERALA
APPELLANTS/RESPONDENTS:

    1          VELLOOR SERVICE CO-OPERATIVE BANK LTD. NO. 785
               REPRESENTED BY ITS SECRETARY
               MAVELLOOR PO VAIKOM KOTTAYAM, PIN - 686141
    2          THE MANAGING COMMITTEE OF VELLOOR SERVICE CO-
               OPERATIVE BANK LTD. NO. 785
               REPRESENTED BY ITS PRESIDENT,
               MAVELLOOR PO VAIKOM KOTTAYAM, PIN - 686141
               BY ADVS.
               M.SASINDRAN
               S.SHYAM KUMAR

RESPONDENT/PETITIONER:

               LIJI THANKAPPAN
               JUNIOR CLERK (UNDER ORDERS OF DISMISSAL)
               VELLOOR SERVICE CO-OPERATIVE BANK
               MAVELLOOR PO VAIKOM KOTTAYAM
               RESIDING AT OOREDATH HOUSE MAVELLOOR PO
               KOTTAYAM, PIN - 686141
               BY ADV P.N.MOHANAN



        THIS    WRIT   APPEAL   HAVING      COME   UP    FOR    ADMISSION   ON
18.01.2023,      THE   COURT    ON    THE    SAME       DAY    DELIVERED    THE
FOLLOWING:
 WA No.87 of 2023
                                            2



                      A.K. JAYASANKARAN NAMBIAR
                                              &
                         MOHAMMED NIAS C.P., JJ
                     ......................................................
                                WA No.87 of 2023
                         --------------------------------------------
                   Dated this the 18th day of January, 2023


                                     JUDGMENT

Mohammed Nias.C.P., J.

The appellant Society and its Managing Committee, the

respondents in WP(C)No.15550 of 2022 are challenging the

common judgment dated 5.12.2022 of a learned single Judge in

WP(C)Nos.15550 of 2022, 27522 of 2019, 27538 of 2019 and

30414 of 2019. The writ petition (W(C)No.15550 of 2022) was

filed by the respondent herein contending that the suspension of

the petitioner, who was a Junior Clerk, by order dated 8.5.2018

and the subsequent memo of charges issued by Ext.P6 and the

dismissal order Ext.P10 are in violation of the Kerala Co-operative

Societies Act and Rules, as also against the judgment of this Court

in Kodanchery Service Co-operative Bank Ltd. v. Joshy

Varghese [2020 (4) KLT 129]. The learned single Judge found

that going by the declaration of law made in Joshy Varghese

(supra) and which position was not disputed even by the WA No.87 of 2023

appellant society, the charge memo issued by the statutory

disciplinary sub committee was void ab initio and as recorded in

the judgment, the learned counsel appearing for the Society had

agreed to this when a pointed question in that regard was put by

the court. However, the Society argued that the disciplinary

action taken should be allowed to be continued before the

arbitration court and concluded. It was alternatively argued by

the Society before the learned single Judge that in case the Court

was inclined to find that the charge memo is vitiated, then the

writ petitioner must challenge through appropriate proceedings

before the Arbitration Court and should not have invoked the

jurisdiction of Article 226 of the Constitution of India.

2. The learned single Judge found that there is only one

conclusion possible and that was that the disciplinary proceedings

were vitiated on account of the declaration of law in Joshy

Varghese (supra) and therefore, all proceedings starting from the

charge memo should fail. The learned single Judge also noticed

that nobody including the appellant Society had a case that the

proposition of law stated in Joshy Varghese (supra) was not

correct and this concession was also recorded in the judgment. In

such circumstances, the learned single Judge found that WA No.87 of 2023

relegating the writ petitioner to the alternate remedy is only a

formality as the result could not be different and even this was

not objected to by the learned counsel for the Society.

Accordingly, the writ petition was allowed granting liberty to the

society to initiate further action as per law without being

tramelled by any of the proceedings initiated. The permission

sought by the learned counsel for the Society to proceed against

the writ petitioner in terms of law by issuance of a new charge

memo was granted. Learned single Judge also held that the

period of suspension of the writ petitioner had exceeded one year

and it was admittedly done without any prior permission from the

jurisdictional authority for its extension, it was held that the

suspension shall stand terminated with effect from the date on

which the one year period expired and subsistence allowance, if

any, paid for the period beyond that was directed to be adjusted

against the eligible salary and emoluments payable to the writ

petition.

3. The Society had also filed writ petitions that challenged

the order of the Arbitration Court that directed reinstatement of

the writ petitioner and also the resultant order to pay her eligible

substance allowance. Those writ petitions were also disposed of WA No.87 of 2023

by the common judgment. Aggrieved by the judgment that

allowed the writ petition filed by the respondent herein, this writ

appeal is filed by the Society on the premise that the law declared

by this Court in Joshy Varghese (supra) cannot have any

retrospective effect and that the law either by legislation or

through an interpretation by the court shall only be prospective.

The appellant also relies on the following judgments to support

his contentions:-

I.C.Golak Nath and others v. State of Punjab and another (AIR 1967 SC 1643), Managing Director, ECIL Hyderabad v. B.Karunakar (AIR 1994 SC 1074), State of Karnataka v. Kumari Gowri Narayana Ambiga and others (1995 Supp(2) SCC 560), Government of A.P. and others v. Bala Musaliah and others [1995 (1) SCC 185, Dr.Suresh Chandra Verma and others v. The Chancellor, Nagpur University and others (AIR 1990 SC 2023) and Cherthala Agricultural Rural Development Bank v. Joint Registrar [2000 (1) KLT 730]

4. Having heard Sri.M.Sasindran and S.Shyam Kumar,

the learned counsel for the appellant, we find that the appeal is

liable to be dismissed for more reasons than one. Firstly, the

learned single Judge had clearly recorded the

submissions/concession made on behalf of the society, that the

Society never had a case against the principle of law laid down in WA No.87 of 2023

Joshy Varghese (supra) and also had sought permission to

initiate fresh proceedings on the basis of fresh charge memo and

the happenings in court are clearly recorded in the judgment

itself. In the absence of filing a review against the recording of

the above submission, the appellant cannot be permitted to

dispute any of the happenings/recordings in the judgment of a

Court. That apart, we hold that the contention that the

declaration of law laid down in Joshy Varghese (supra) can apply

only prospective cannot be accepted much less in the instant case

where the writ petitioner had questioned the disciplinary

proceedings well before this Court laid down the law in Joshy

Varghese (supra). A declaration of law made by a court only

explains the position of law as it always stood and unless the

court makes any observation/direction regarding the operation of

the judgment or on its implementation, the declaration of law

must be treated as valid and not restricted it its application to

affect future cases alone. It may be true that those matters which

are settled and which have attained finality will not be re-opened

by a pronouncement of law subsequently. In the instant case, as

stated earlier, the principles stated in Joshy Varghese (supra)

squarely applies as the litigation was continuing.