Kerala High Court
Jimcy Tonio vs The Idukki District Tax Drivers ... on 12 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
WP(C) NO. 14687 OF 2012
PETITIONER:
BINOY.K.JOHN,
AGED 32 YEARS, KOZHIMANNIL HOUSE,
KATTAPANA P.O., IDUKKI DISTRICT.
BY ADV Sachithananda Pai
RESPONDENTS:
1 IDUKKI DISTRICT TAX DRIVER
CO-OPERATIVE SOCIETY LTD.No.I 91,
REPRESENTED BY ITS SECRETARY, KATTAPPANA P.O.,
IDUKKI DISTRICT-685 508.
2 JIMCY TONIO,
MADUKOLIL HOUSE, P.O.SANTHIGRAM, KATTAPPANA,
IDUKKI DISTRICT-685 510.
3 JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES (GENERAL), IDUKKI-685 603.
4 KERALA CO-OPERATIVE TRIBUNAL
TRIVANDRUM-695 001.
BY ADVS.
SRI.BIMAL K NATH- SR. GOVERNMENT PLEADER
SRI.P.C.SASIDHARAN
ARUN CHANDRAN
SRI.JOICE GEORGE
HARIMOHAN(K/000327/2018)
ANJALY T.A(K/1694/2020)
ASWATHY S MENON(K/2316/2023)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12.06.2024, ALONG WITH WP(C) No.21681/2012, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO.14687 OF 2012 & Con.Case
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
WP(C) NO. 21681 OF 2012
PETITIONER:
JIMCY TONIO
AGED 33 YEARS, S/O.ANTONY,
RESIDING AT MADUKKOLIL HOUSE, SANTHIGRAM P.O.,
SANTHIGRAM, IDUKKI DISTRICT.
BY ADVS.
ARUN CHANDRAN
HARIMOHAN(K/000327/2018)
ANJALY T.A(K/1694/2020)
ASWATHY S MENON(K/2316/2023)
RESPONDENTS:
1 THE IDUKKI DISTRICT TAX DRIVERS C
O-OPERATIVE SOCIETY LTD.NO.I-191,
KATTAPPANA P.O., IDUKKI DISTRICT REPRESENTED BY
ITS SECRETARY. PIN - 685508.
2 BINOY K.JOHN,
KOZHIMANNIL HOUSE KATTAPPANA P.O.
IDUKKI DISTRICT PIN - 685 508.
3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
GENERAL
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES, PAINAVU P.O., IDUKKI. PIN - 685602.
4 THE KERALA CO-OPERATIVE TRIBUNAL
THIRUVANANTHAPURAM PIN - 695001.
BY ADV
SRI.BIMAL K NATH- SR. GOVERNMENT PLEADER
SRI.P.C.SASIDHARAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12.06.2024, ALONG WITH WP(C).14687/2012, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO.14687 OF 2012 & Con.Case
3
M.A. ABDUL HAKHIM, J.
--------------------------------
W.P.(C) No. 14687 of 2012 &
W.P.(C) No. 21681 of 2012
--------------------------------
Dated this the 12th day of June, 2024
JUDGMENT
1. The petitioner in W.P.(C) No.14687/2012 was an employee of
the 1st respondent/Primary Co operative Society ('the Society" in
short). The petitioner in W.P.(C) No.21681/2012 is an
employee of the Society.
2. In the year 2007, disciplinary proceedings were initiated against
the petitioners alleging shortage of stock in the Sales Depot of
the Society at Kattappana. The disciplinary proceedings ended
in removal of the petitioners from service. The petitioner in W.P.
(C) No.21681/2012 challenged the disciplinary proceedings and
the enquiry was set aside finding violation of the procedural
illegalities and personal bias of the enquiry officer.
Consequently, the petitioner in W.P.(C) No.21681/2012 was
reinstated in service and he is presently continuing as an the
employee of the Society.
3. The Society initiated proceedings under Section 69 of the
WP(C) NO.14687 OF 2012 & Con.Case
Kerala Co-operative Societies Act, 1969 for recovery of the
amount with respect to the alleged shortage amounting to
Rs.17,97,811.50. The Arbitrator passed Award dated
01.04.2009 in A.R.C.No.564/2007 holding that the petitioners
are liable to pay a total amount of Rs.17,96,563.50. The
petitioners filed Appeal No.17/2009 and Revision No.160/2009
challenging the award passed by the Arbitrator before the
Kerala Cooperative Tribunal, Thiruvananthapuram and the
Tribunal dismissed the said appeal and revision as per
Judgment dated 30.03.2012 confirming the award passed by
the Arbitrator. These writ petitions are filed challenging the
award passed by the Arbitrator which is confirmed by the Kerala
Cooperative Tribunal.
4. The Society had filed Criminal case with respect to the very
same transaction against the petitioner in W.P.(C)
No.21681/2012. During investigation, the Police arrayed the
petitioner in W.P.(C) No.14687/2012 as the 2 nd accused. Both
the petitioners were acquitted as per the Judgment dated
25.03.2019 in C.C.No.336/2011 of the Judicial First Class
Magistrate Court -I, Kattappana. The Judgment of the
WP(C) NO.14687 OF 2012 & Con.Case
Magistrate Court was confirmed by the Sessions Court in
Crl.Appeal No.63/2019 as per Judgment dated 26.06.2023.
5. The contention of the Counsel for the petitioners is that the
material document to prove the stock in the Depot is the Liability
Register maintained in the Depot. The said document which is
very much relevant and material for the adjudication of the
shortage was not produced by the Society before the Arbitrator.
They submitted that the Arbitrator can not fix any liability on the
petitioners without the said Liability Register. They invited my
attention to the findings of the Arbitrator in the Award that the
Secretary of the Society is responsible for not maintaining the
records properly and submitted that no proceeding was initiated
against the Secretary and the entire blame is fixed on the
petitioners for the default of the Secretary. They invited my
attention to the judgment passed by the Criminal Court
honourably acquitting them after entering specific findings
touching the merits of the matter. According to them, if the
petitioners had an opportunity to produce the evidence recorded
in the in the criminal case before the Arbitrator, the Arbitrator
WP(C) NO.14687 OF 2012 & Con.Case
would have surely exonerated the petitioners from liability. The
fate of domestic enquiry also supports the defense put forward
by the petitioners before the Arbitrator. According to them, the
passing of the award without the Liability Register on record to
prove the Stock available in the Depot is illegal and
unsustainable.
6. The learned Counsel for the 1st respondent submitted that even
though the Liability Register of the Kattappana Sales Depot is
not available, corresponding Liability Register available in the
Head Office was produced before the Arbitrator and the same
proved the shortage to fasten the liability on the petitioners. He
took my attention to the specific finding of the Arbitrator as well
as the Tribunal that the petitioners did not dispute the entries in
the Liability Register which was available in the Head Office.
7. I find from the pleadings and documents in these writ petitions
that there are several documents subsequent to the passing of
the Award which may refer to the importance of the Liability
Register in the Arbitration proceedings. I am of the view that
whether a Liability Register kept in the Depot is a necessary
document or whether the Liability Register in the Head office is
WP(C) NO.14687 OF 2012 & Con.Case
sufficient to prove the Arbitration claim could be better decided
by the Arbitrator if the petitioners produce the documents relied
in these writ petitions before the Arbitrator. It is for the Arbitrator
to consider relevancy and reliability of the documents including
the depositions produced by the petitioners in these writ
petitions, in the arbitration proceedings.
8. In view of the aforesaid findings, I set aside the Award of the
Arbitrator dated 01.04.2009 Arbitration Case No.564/2007 and
the Judgment the Kerala Co-operative Tribunal dated
30.03.2012 in Appeal No.17/2009 & Revision No.160/2009 and
direct the 3rd respondent/Arbitrator to consider the matter afresh
after permitting the parties to adduce necessary evidence
including production of documents.
These writ petitions are disposed of as above.
Sd/-
M.A. ABDUL HAKHIM,
JUDGE
S.M.K.
WP(C) NO.14687 OF 2012 & Con.Case
APPENDIX OF WP(C) 14687/2012
PETITIONER'S EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE FIR IN CRIME
NO.5/2008 DATED 2/1/2008 SUBMITTED BY
THE POLICE BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE COURT KATTAPANA
EXHIBIT P2 A TRUE PHOTO COPY OF THE PLAINT IN
ARBITRATION CASE DATED 6/2/2008
EXHIBIT P3 A TRUE PHOTO COPY OF THE ENQUIRY REPORT
DATED 14/7/2008
EXHIBIT P4 A TRUE PHOTO COPY OF THE AWARD IN ARC
NO.564/2007 DATED 1/4/2009
EXHIBIT P5 A TRUE PHOTO COPY OF THE REVISION
PETITION NO.160/2009 DATED 08/6/2009
EXHIBIT P6 A TRUE PHOTO COPY OF THE COMMON
JUDGMENT IN APPEAL NO.17/2009 AND
REVISION PETITION NO.160/2009 DATED
30/03/2012
Exhibit P7 COPY OF THE COMPLAINT DATED 01.01.2008
FILED BY THE RESPONDENT BEFORE JFCM
COURT, KATTAPPANA.
Exhibit P8 COPY OF THE JUDGMENT DATED 25.03.2019
IN C C 336/2011 OF JFCM COURT,
KATTAPPANA.
Exhibit P9 COPY OF THE JUDGMENT DATED 26.06.2023
IN CRL.APPEAL 63/2019 OF 2ND ADDL.
SESSIONS COURT, THODUPUZHA.
WP(C) NO.14687 OF 2012 & Con.Case
APPENDIX OF WP(C) 21681/2012
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE RESOLUTION DATED 15-11-
2007 OF THE 1ST RESPONDENT CO-OPERATIVE
SOCIETY.
EXHIBIT P2 TRUE COPY OF THE ARC NO. 564/2007 ON THE
FILES OF THE JOINT REGISTRAR OF CO-
OPERATIVE SOCIETIES (GENERAL) IDUKKI.
EXHIBIT P3 TRUE COPY OF THE ARGUMENT NOTE FILED BY
COUNSEL FOR THE PETITIONER IN ARC NO.
564/2007 DATED 26-11-2008
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 01-04-2009
PASSED BY THE 3RD RESPONDENT IN ARC NO.
EXHIBIT P5 TRUE COPY OF THE APPEAL NO. 17/2009 BEFORE
THE CO-OPERATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
EXHIBIT P6 TRUE COPY OF THE ARGUMENT NOTE DATED 23-11-
2011 IN APPEAL NO. 17/2009 FILED BY THE
PETITIONER BEFORE THE CO-OPERATIVE
TRIBUNAL.
EXHIBIT P7 TRUE COPY OF THE COMMON JUDGMENT IN APPEAL
NO. 17/2009 AND REVISION PETITION NO.
160/2009.
EXHIBIT P8 TRUE COPY OF THE AWARD DATED 14.08.2013.
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 25.03.2019
IN C.C 336/2011.
EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 26.06.2023
IN CRIMINAL APPEAL NO.63/2019.
EXHIBIT P11 TRUE COPY OF THE DEPOSITIONS OF THE ENQUIRY
OFFICER IN CC.336/2011 DATED 05.10.2017.
EXHIBIT P12 TRUE COPY OF THE DEPOSITIONS OF THE
SECRETARY IN CC.336/2011 DATED 03.01.2017.
