Kerala High Court
Jilson P T vs The Joint Registrar Of Co-Operative ... on 15 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
WP(C) NO. 21513 OF 2023
PETITIONER/S:
JILSON P T
AGED 45 YEARS
S/O P T THOMAS, PANIKULANGARA HOUSE,
ATTUPURAM,AYROOR P O, ERNAKULAM DISTRICT,
PIN - 683579
BY ADVS.
M.M.MONAYE
M.PAUL VARGHESE
RESPONDENT/S:
1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL),CIVIL STATION , KAKKANAD, ERNAKULAM DISTRICT-,
PIN - 682030
2 ASSISTANT REGISTRAR OF CO -OPERATIVE SOCIETIES
OFFICE OF THE ASSISTANT REGISTRAR OF CO -OPERATIVE
SOCIETIES, NORTH PARAVUR, PIN - 683513
3 AYROOR SERVICE CO-OPERATIVE BANK LTD NO. 2237
REPRESENTED BY SECRETARY, AYROOR P.O,
ERNAKULAM DISTRICT, PIN - 683579
4 BOARD OF DIRECTORS
AYROOR SERVICE CO-OPERATIVE BANK LTD NO.2237,
AYROOR P.O, ERNAKULAM DISTRICT, REPRESENTED BY PRESIDENT.,
PIN - 683579
5 PRESIDENT
AYROOR SERVICE CO-OPERATIVE BANK LTD NO.2237,
AYROOR P.O, ERNAKULAM DISTRICT, PIN - 683579
BY ADVS.
P.N.MOHANAN
C.P.SABARI(K/973/2010)
AMRUTHA SURESH(K/000971/2016)
GILROY ROZARIO(K/399/2021)
GP SMT PRINCY XAVIER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 21513 OF 2023 2
BASANT BALAJI , J.
------------------------------
W.P.(C) No.21513 of 2023
-----------------------------------
Dated this the 15th day of February 2024
JUDGMENT
The petitioner states that he is working as Senior Clerk in the
Ayroor Service Co-operative Bank Ltd., No.2237, a Primary
Agricultural Credit Society (for short, the bank). While so, he was
served with Ext.P1, show cause notice dated 14.11.2022 issued by
the Secretary of the bank, the 3rd respondent herein, for which, he
has submitted Ext.P2 reply. Thereafter, the petitioner was placed
under suspension as per Ext.P3 order dated 05.01.2023. The
grievance of the petitioner is that Ext.P3 order was issued by the
President of the bank, the 5th respondent herein, who has no
authority or jurisdiction to pass such an order. It is in the said
circumstances that the petitioner has approached this Court seeking
to quash Ext.P3 and for a direction to the respondents to reinstate
the petitioner in service.
2. A counter affidavit has been filed by the 3rd respondent
wherein it is stated that since it is a disputed question of fact and as
the petitioner has already a remedy under Section 69(2)(d) of the
Kerala Co-operative Societies Act, this writ petition itself is not
maintainable. It is contended that the petitioner while holding the
post of Senior Clerk had committed various misconduct and
dereliction of duty and, taking into consideration the gravity of
offences, the managing committee in its meeting held on 4.1.2023
authorized the 5th respondent, the President of the bank to take
appropriate action and accordingly, the petitioner was suspended
from service on 05.1.2023. Ext.R3(a), the copy of the relevant
portion of the minutes of the committee meeting held on 04.1.2023
and Ext.R3(b), the minutes of the meeting held on 25.1.2023 are
also produced to substantiate the same. It is also stated in the
counter affidavit that, as the reply filed by the petitioner was found
unsatisfactory, a sub committee was constituted to make enquiry into
the allegations. The said sub committee, after studying the reply,
decided to appoint one Mr. K.N. Madhava Pai, Advocate of
Perumbavoor Bar as enquiry officer and since the petitioner applied
leave on medical grounds for 15 days, the enquiry was adjourned.
3. A reply affidavit has been filed by the petitioner
controverting the averments made in the counter affidavit. It is
stated in the reply affidavit that the petitioner filed a petition before
the cooperative department and the unit inspector was directed to
conduct an enquiry. The president who signed Ext.P3 suspension
order had filed a statement to the unit inspector stating that he was
forced to issue Ext.P3 by the managing committee. The said
statement is produced as Ext.P7. The petitioner has, through I.A.
No.1 of 2024 has filed an additional document, Ext.P10, wherein the
learned Single Judge of this Court in W.P.(C) No.38056 of 2023 has
quashed the charge memo issued to the petitioner. It was also made
clear that it will be open to the respondents to continue with the
disciplinary proceedings strictly in accordance with the provisions of
the Act and Rules.
4. Heard the learned counsel appearing for the petitioner and
the learned Standing Counsel appearing for the respondents.
5. The main question that arises for consideration is whether
Ext.P3 issued by the President of the society is valid or not.
6. The learned counsel would rely on Sub-rule (6) of Rule 198
of the Kerala State Cooperative Societies Rules and argued that an
authority competent to appoint an employee may suspend him
pending enquiry into serious charges against such employee. No
employee shall however be kept under suspension for a period
exceeding six months at a time. In no case an employee shall be
kept under suspension for a continuous period exceeding one year
without the prior approval of the Registrar. An employee under
suspension shall be entitled to subsistence allowance payable under
the Kerala Payment of Subsistence Allowance Act, 1972. Relying on
Section 2(e) of the Kerala Cooperative Societies Act the learned
counsel submits that a "Committee" means the governing body of a
cooperative society by whatever name called, to which the
management of the affairs of the society is entrusted. He would also
rely on Rule 182(2) which states that the committee shall be the
authority competent to appoint the employees in a cooperative
society. The petitioner has also brought to the notice of this Court the
bylaws of the society, in which Clause 42 deals with 'Rights' of the
Society and Clause 16 says that any suspension or removal of any
employee rests with the committee. Relying on the above, the
learned counsel argues that the President is not the appointing
authority and therefore, he is incompetent to suspend the petitioner.
It is also contended that Rule 198(6) of the Rules specifically states
that if the suspension of the employee is beyond the period of one
year, prior permission of the Registrar is necessary.
7. In response, the learned counsel for the respondents
submitted that, before the expiry of one year, the managing
committee had already taken a decision to extend the term and
requested the Registrar to give prior permission for extension of the
suspension period, which is pending. It is also submitted that since
the managing committee had already taken a decision and is
awaiting orders from the Registrar, the suspension of the petitioner
can be continued.
8. The next contention advanced by the learned counsel
appearing for the petitioner is that when the charge memo itself is
quashed by this Court by Ext.P10, the suspension order based on the
charge memo also ends with that. It is also submitted that since the
original charge has been quashed, he should be reinstated in service.
9. The learned counsel would rely on the decision of the
learned Division Bench of this Court in Mathew Joseph vs.
Registrar of Co-Operative Societies [2022 KHC 5602] wherein it
was held that the suspension order cannot exist independent of the
charge memo, whether issued simultaneously or within reasonable
time thereafter. On the charge memo being set aside by a competent
forum, the suspension order that is dependent on it also ceases to
have force in law.
10. In that view of the matter, when the charge memo was
quashed by this Court as per Ext.P10, the suspension order, Ext.P3,
ceased to operate on that date i.e., on 14.12.2023.
11. With regard to the next contention that the President is not
the appointing authority and is incompetent to issue Ext.P3 order, the
bye laws of the society itself states that the managing committee is
the authorized person to take action on the suspension as well as
termination and also going by Rule 182(2) of the Rules the managing
committee is the appointing authority. There is no delegation of
powers on the President.
12. A reading of Ext.P3 would show that the 5th respondent,
the President of the bank, has issued Ext.P3 order suspending the
petitioner on the ground that he is the sole authority and by invoking
his powers as the appointing authority. When the President has no
authority to appoint the petitioner he has no right or authority to
suspend the petitioner. On these grounds Ext.P3 does not stand in
the eye of law.
13. Ext.P3 will stand quashed. There will be a direction to the
respondents to reinstate the petitioner in service forthwith. It is also
made clear that this Court has granted liberty through Ext.P10 to
continue with the disciplinary proceedings strictly in accordance with
the Act and Rules, the managing committee of the bank is free to
proceed in accordance with law. Since Ext.P3 suspension order is not
legally tenable and the petitioner has already been issued with
subsistence allowances for the period under suspension, he is entitled
for the salary less the subsistence allowance already granted to him.
Necessary orders shall be passed in this regard within a period of six
weeks from the date of receipt of a copy of this judgment.
Writ petition is disposed of.
Sd/-
BASANT BALAJI ,
JUDGE
NS
APPENDIX OF WP(C) 21513/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 14-11-
2022 ISSUED TO THE PETITIONER BY THE SECRETARY
OF THE 3RD RESPONDENT SOCIETY
Exhibit P2 TRUE COPY OF THE REPLY DATED 22-11-2022 OF THE
PETITIONER
Exhibit P3 TRUE COPY OF THE SUSPENSION ORDER ISSUED BY THE
PRESIDENT OF THE SOCIETY DATED 05.01.2023
Exhibit P4 TRUE COPY OF THE CHARGE MEMO ISSUED BY THE
PRESIDENT AYROOR SERVICE CO-OPERATIVE BANK
DATED 27.06.2023
Exhibit P5 TRUE COPY OF THE NOTICE OF THE ENQUIRY OFFICER
ISSUED TO THE PETITIONER DATED 17.08.2023
Exhibit P6 TRUE COPY OF THE COMPLAINT FILED BY
PRESIDENT,V.O .JOHNY. DATED 23.11.2022
Exhibit P7 TRUE COPY OF THE STATEMENT OF V.O .JOHNY. DATED
7.10.2023
Exhibit P8 TRUE COPY OF THE PETITION SEEKING INFORMATION
DATED 27.06.2023
Exhibit P9 TRUE COPY OF THE INFORMATION RECEIVED FROM
PUBLIC INFORMATION OFFICER
Exhibit P10 TRUE COPY OF THE JUDGMENT IN WP(C) NO. 38056 OF
2023 DATED 14.12.2023
RESPONDENT EXHIBITS :
EXHIBIT R3(a) TRUE COPY OF THE RELEVANT PORTION OF THE
MINUTES OF THE COMMITTEE MEETING DATED
04.01.2023
EXHIBIT R3 (b) TRUE COPY OF THE RELEVANT RESOLUTION OF THE
MANAGING COMMITTEE APPROVING THE EXT.P3
SUSPENSION OF THE PETITIONER
EXHIBIT R3 (c) TRUE COPY OF THE RELEVANT PORTION OF THE
APPROVAL OF THE MEMO OF CHARGES IN THE MANAGING
COMMITTEE MEETING HELD ON 26.06.2023
EXHIBIT R3(d) TRUE COPY OF THE MEMO OF CHARGES DATED
15.01.2024
