Thiruvananthapuram District ... vs Pradeep.V
2023 Latest Caselaw 311 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA,
                            1944
                   WP(C) NO. 39739 OF 2017
PETITIONER:

           THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK
           LTD.
           EAST FORT, FORT P.O.,
           THIRUVANANTHAPURAM,REPRESENTED BY ITS GENERAL
           MANAGER-695023.
           BY ADVS.
           SRI.M.R.HARIRAJ
           SMT.G.BINDU
           SMT.M.K.LEELA
           SRI.M.R.RAJENDRAN NAIR SR.
           SRI.K.RAJAGOPAL


RESPONDENTS:

    1      PRADEEP.V
           PADIKKUMAMPUZHA VEEDU, OTTOOR, MOONGODU
           P.O.,VARKALA-695144.
    2      S.LEELAKUTTY AMMA
           LEKSHMI BHAVAN, PATHIA KAVU, KILIMANOOR PO-
           695601,THIRUVANANTHAPURAM.
    3      M.J.JAIN
           SENIOR MANAGER, THIRUVANANTHAPURAM DISTRICT CO-
           OPERATIVE BANK LTD.,VARKALA MAIN BRANCH,
           VARKALA, PIN-695141.
           BY ADVS.
           SMT.ANITHA RAVINDRAN
           SRI.HARISANKAR N UNNI
           SMT.T.RESHMA
           SRI.B.S.SWATHI KUMAR
           SMT.S.SIKKY

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) NO.39739 OF 2017

                                2




                          JUDGMENT

The petitioner, which is a Co-operative Society,

impugns Exts.P1 and P2 orders of the Co-operative Arbitration

Court, Thiruvananthapuram (for short 'the Court') and the

Kerala Co-operative Tribunal (for short 'Tribunal') respectively.

2. Sri.M.R.Hariraj - learned counsel for the petitioner,

vehemently argued that both Exts.P1 and P2 have proceeded

to hold that the disciplinary action taken by his client against

the first respondent herein was in error, solely because no

Disciplinary Sub Committee - as provided under Rule 198(2A)

of the Kerala Co-operative Societies Rules (for short "the KCS

Rules") had been constituted, or entrusted to conduct the

enquiry. He argued that this is peremptorily untenable

because the proceedings against the first respondent was

completed as early as in the year 2009, while the provisions

of Rule 198(2A) of the KCS Rules was brought into the

Statute Book only with effect from 18.08.2010. He further

argued that all the proceedings against the first respondent

were initiated and completed by the President of the Society

in his capacity as the statutory Disciplinary Authority, though

the Charge Memo and orders were communicated to the first WP(C) NO.39739 OF 2017

respondent by the General Manager of the Society, as

authorised by the said Authority. Sri.M.R.Hariraj thus prayed

that Exts.P1 and P2 be set aside.

3. In response, Sri.B.S.Swathi Kumar - learned counsel

appearing for the first respondent, submitted that the

documents on record and the evidence adduced would clearly

show that every action from the inception, including the

issuance of the Charge Memo, the conduct of enquiry and the

final order of punishment has been done by the General

Manager of the Society and therefore, that the whole

proceedings are vitiated. He, however, conceded, to a pointed

question from this Court, that a Disciplinary Sub Committee,

as postulated under Rule 198(2A) of the KCS Rules, could not

have been constituted by the Society, since the said provision

came into the Statute Book only with effect from 18.08.2010;

nevertheless, arguing that it has been well settled by at least

two judgments of this Court, namely Kunhammad v. Joint

Registrar [1998 (1) KLT 60] and President,

Pudupariyaram Service Co-operative Society v. Rugmini

Amma and others [1996(1) KLT 100], that Sub Committees

are to be constituted for the purpose of conduct of enquiry

and that punishments can be imposed only by the designated WP(C) NO.39739 OF 2017

Authorities as per Rule 198(3) of the KCS Rules. He

contended that, therefore, the impugned orders are

irreproachable and prayed that the petitioner society be

directed to implement them within a time frame to be fixed

by this Court.

4. Even when I hear Sri.B.S.Swathi Kumar on the afore

lines, there is a legal hurdle that his client would face. The

discussions in Ext.P1 start by saying that Rule 198(2A) of the

KCS Rules stipulates that a Disciplinary Committee be

constituted and that the enquiry be conducted by it. It then

concludes saying that, though initially the Tribunal did not find

any error in the domestic enquiry report, when the

subsequent report was obtained, it was found that actions

were taken by the Branch Manager, but not by the President

and that "similarly, no Disciplinary Sub Committee was

constituted to take penal action against the delinquent" (sic.).

These findings were approved by the Tribunal through Ext.P2,

however, additionally holding that the evidence on record

would not show misappropriation but only improper

accounting, which would not warrant the punishment imposed

against the first respondent.

WP(C) NO.39739 OF 2017

5. However, what is relevant before this Court is to

consider whether the Arbitration Court and the Tribunal had

acted correctly in evaluating the legal position, particularly in

the context of Rule 198(2A) of KCS Rules.

6. As I have already said above, both the Authorities

have proceeded on the assumption that the afore Rule was

applicable and that the absence of a Disciplinary Sub

Committee was fatal; but without appreciating the fact that

the said provisions came into the statute only with effect from

18.08.2010, while the disciplinary action against the

petitioner was completed as early as in the year 2009.

7. That apart, the argument of the petitioner -

Society is that all the impugned orders issued were settled by

the President and that they were merely communicated by

the General Manager under his orders and command. Of

course, the respondents have a specific case that this is

factually incorrect and that, in any event, the President could

not have delegated any of his powers to the General Manager.

8. I, therefore, am of the firm view that the entire

matter will require to be reconsidered by the Arbitration

Court, since am left doubt that it has proceeded upon an

incorrect legal assumption. This is more so because, every WP(C) NO.39739 OF 2017

aspect, as now argued by the rival parties, can also be then

considered by the Arbitration Court.

9. That said, I am certain that the reconsideration

will have to be done within the shortest period of time, taking

note of the time lines during which the matter has been

pending.

Resultantly, I allow this Writ Petition and set aside

Ext.P1 and P2; with a consequential direction to the

Arbitration Court to reconsider the matter, based on the

evidence on record; but after affording an opportunity being

heard to the parties and after assessing all contentions

impelled by them in law; thus culminating in an appropriate

order and necessary action thereon, as expeditiously as is

possible, but not later than three months from the date of

receipt of a copy of this judgment.

For an expeditious compliance on the afore directions, I

direct the parties to mark appearance before the Arbitration

Court on 23.01.2023.

After I dictated this part of this judgment,

Sri.B.S.Swathikumar submitted that his client has been

denied subsistence allowance throughout this period. This is

an issue that first respondent can certainly raised before the WP(C) NO.39739 OF 2017

Arbitration Court, when the afore directions are complied

with.

The Writ Petition is thus ordered.

Sd/-DEVAN RAMACHANDRAN, JUDGE lsn WP(C) NO.39739 OF 2017

APPENDIX OF WP(C) 39739/2017

PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE AWARD DATED 3.2.2017 IN ARC 11/2010 ON THE FILES OF THE CO-OPERATIVE ARBITRATION COURT. EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 28.9.2017 IN REVISION PETITION ON THE FILES OF THE KERALA CO-OPERATIVE TRIBUNAL.

EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 21.07.2006 ISSUED BY THE SECOND PETITIONER.

EXHIBIT P4 A TRUE COPY OF THE ORDER EM(I) 49429/2007 DATED 24.11.2007 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES.

EXHIBIT P5 A TRUE COPY OF THE CHARGE MEMO NO.ADM/ESTT/1243/06/07 DATED 19.3.2007 ISSUED FOR THE FIRST PETITIONER.

EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION DATED 30.5.2007.

EXHIBIT P7 A TRUE COPY OF THE PROCEEDINGS OF THE DOMESTIC ENQUIRY ON 10.11.2007.

EXHIBIT P8 A TRUE COPY OF THE PROCEEDINGS OF THE DOMESTIC ENQUIRY ON 17.11.2007 AND CROSS-EXAMINATION OF PW1 BY COUNSEL FOR THE FIRST RESPONDENT.

EXHIBIT P9 A TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER ALONG WITH COVERING LETTER DATED 30.1.2008. EXHIBIT P10 A TRUE COPY OF THE PROCEEDINGS NO.ADM/EST/E1/08-09 DATED 28.1.2009 ISSUED BY THE SECOND RESPONDENT.

EXHIBIT P11 A TRUE COPY OF THE APPEAL DATED 27.2.2009.

DATED 30.05.2009.

EXHIBIT P13 A TRUE COPY OF THE ARBITRATION REFERENCE FILED BY THE FIRST WP(C) NO.39739 OF 2017

RESPONDENT.

EXHIBIT P14 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE FIRST PETITIONER IN ARC 11/2010.

EXHIBIT P15 A TRUE COPY OF THE PROOF AFFIDAVIT AND THE DEPOSITION OF THE FIRST RESPONDENT.

EXHIBIT P16 A TRUE COPY OF THE MEMORANDUM OF REVISION PETITION 33/2017 FILED BEFORE THE KERALA CO-OPERATIVE TRIBUNAL.

EXHIBIT P17 A TRUE COPY OF THE OBJECTION FILED BY THE FIRST RESPONDENT IN RP 33/2017 ON THE FILES OF KERALA CO-OPERATIVE ARBITRATION TRIBUNAL.

EXHIBIT P18 A TRUE COPY OKAIPULLY HOUSE, PUTHUR-

P.O.,-680014, THRISSUR TALUK, THRISSUR DISTRICT. F THE RELEVANT PAGES OF HE ACQUITTANCE REGISTER OF THE BANK.

RESPONDENTS EXHIBITS: NIL

TRUE COPY

P.A TO JUDGE

LSN