Kerala High Court

N.G.Benjamin vs The Kothamangalam Service Co Operative ... on 2 April, 2025

                                                                     2025:KER:27731
WP(C) Nos. 24620 & 26004 of 2018
                                                1

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                           PRESENT

               THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

    WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947

                                   WP(C) NO. 24620 OF 2018

PETITIONERS:

       1        KOTHAMANGALAM SERVICE CO-OPERATIVE BANK LTD NO.354
                KUTHUKUZHY P.O, KOTHAMANGALAM, ERNAKULAM DISTRICT,
                REPRESENTED BY ITS SECRETARY.

       2        THE BOARD OF DIRECTORS OF THE KOTHAMANGALAM SERVICE
                CO-OPERATIVE BANK LTD NO.354,
                KUTHUKUZHY P.O, KOTHAMANGALAM, ERNAKULAM DISTRICT,
                REPRESENTED BY ITS PRESIDENT.

                ADVS. SRI.M.SASINDRAN & SRI.JOMY K. JOSE


RESPONDENTS:

       1        N.G.BENJAMIN,
                NJARAKKATTU HOUSE, ASOKAPURAM P.O, EDAYAPURAM ROAD,
                ALUVA 683 101, ERNAKULAM DISTRICT.

       2        THE KERALA CO-OPERATIVE TRIBUNAL,
                THIRUVANANTHAPURAM 695 001.

                ADV. SRI.N.K.SUBRAMANIAN
                SRI.DHEERAJ A.S., GOVERNMENT PLEADER


        THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24.3.2025,         ALONG       WITH     WP(C)       NO.26004/2018,   THE   COURT   ON
2.4.2025 DELIVERED THE FOLLOWING:
                                                              2025:KER:27731
WP(C) Nos. 24620 & 26004 of 2018
                                              2



                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                           PRESENT

               THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

    WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947

                                   WP(C) NO. 26004 OF 2018

PETITIONER:
          N.G.BENJAMIN,
          NARAKKATTU HOUSE, EDATHALA NORTH POST, NEAR ST.JUDE
          CHURCH, ALUVA, ERNAKULAM-683 564.

                ADVS. SRI.N.K.SUBRAMANIAN & SRI.S.ANANTHAKRISHNAN



RESPONDENTS:
    1     THE KOTHAMANGALAM SERVICE CO OPERATIVE BANK LTD.
          NO.354, KUTHUKUZHY POST, KOTHAMANGALAM, ERNAKULAM
          686 691, REPRESENTED BY ITS SECRETARY.

       2        THE BOARD OF DIRECTORS,
                THE KOTHAMANGALAM SERVICE CO-OPERATIVE BANK
                LTD.NO.354, KUTHUKUZHY POST, KOTHAMANGALAM,
                ERNAKULAM 686691, REPRESENTED BY ITS PRESIDENT.

       3        THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETEIS
                (GENERAL), ERNAKULAM, CIVIL STATION, KAKKANAD-682
                030.

       4        THE ASST. REGISTRAR OF CO-OPERATIVE SOCIETIES
                (GENERAL), KOTHAMANGALAM-686 691.

                ADV SRI.M.SASINDRAN
                SRI.DHEERAJ A.S., GOVERNMENT PLEADER


        THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24.3.2025, ALONG WITH WP(C).24620/2018, THE COURT ON 2.4.2025
DELIVERED THE FOLLOWING:
                                                                    2025:KER:27731
WP(C) Nos. 24620 & 26004 of 2018
                                             3


                             MOHAMMED NIAS C. P. , J.
                    ===========================================
                           W. P. (C) Nos. 24620 & 26004 of 2018
                    ===========================================
                           Dated this the 2nd day of April, 2025

                                     JUDGMENT

WP(C) No.24620/2018 challenges the judgment passed by the Kerala

Co-operative Tribunal, Thiruvananthapuram in Appeal No. 84/2017, while

WP(C) No.26004/2018 seeks implementation of the directions in the said

judgment.

2. Brief facts necessary for the disposal of the writ petitions are as

follows: WP(C) No.24620/2018 is filed by the Bank, a co-operative society

registered under the provisions of the Kerala Co-operative Societies Act,

1969, and the second petitioner is its Board of Directors. The first

respondent entered the service of the society on 23.4.1983 and during 1994,

while working as an Accountant, went abroad on Leave Without Allowance

from 1.4.1994 initially for 5 years and thereafter, from 1.4.1999 to 31.3.2004.

After the expiry of the leave on 31.3.2004 as aforesaid, he was supposed to

join back service on 1.4.2004 and since he did not join after the expiry of

leave, a notice was issued, which was returned with the endorsement 2025:KER:27731 WP(C) Nos. 24620 & 26004 of 2018

"Addressee left". To a further notice issued to the petitioner on 2.4.2005, the

first respondent replied that he was not able to appear on medical grounds.

3. The first respondent, contending that he had worked from

1.4.2004 to 27.4.2004 and from 28.4.2004 onwards he was not permitted to

sign the attendance register, moved the Assistant Registrar,

Kothamangalam on 3.5.2004, in which an order was passed on 17.7.2004,

permitting the first respondent to join service and to treat the period of

absence as loss of pay. Writ petitions were filed challenging the said order of

the Assistant Registrar, and WP(C) No.22571/2004 was filed by the first

respondent seeking implementation of the order of the Assistant Registrar.

This Court through judgment dated 10.10.2006 in WP(C). No.22571/2004

(produced as Ext.P2 in WP(C). No. 26004/2018) set aside the order of the Assistant

Registrar and relegated the parties to approach the Kerala State Co-

operative Arbitration Court ('The Arbitration Court' for short). Accordingly, the

employee/first respondent filed an arbitration case A.R.C.No.71/2006 on

23.12.2006, which was dismissed as per Ext.P2 award on 5.7.2012.

4. The employee filed Ext.P3 appeal, which resulted in Ext.P4

judgment of the Kerala Co-operative Tribunal allowing the appeal and

remanding the matter back to the Arbitration Court with the following

directions:

2025:KER:27731 WP(C) Nos. 24620 & 26004 of 2018

"In the result, this Appeal is disposed of as follows:

1. The impugned award is set aside.

2. The Arbitration Case is remanded back to the Co-operative Arbitration Court, Thiruvananthapuram for fresh disposal in accordance with law.

3. The Arbitration Court shall consider Ext.A23 Audio CD after satisfying its genuineness.

4. The parties are allowed to adduce further evidence to substantiate their case.

5. Parties shall appear before the Co-operative Arbitration Court, Thiruvananthapuram on 15-02-2014.

6. As the Arbitration Case is of the year 2006 the Arbitration Court is directed to dispose of the same as expeditiously as possible."

It is contended that the employee did not take any steps for two years, and

it was only on 12.1.2016 that Ext.P5 affidavit producing Ext.A23 Audio CD

was filed before the Arbitration Court. Through Ext.P6 order dated

16.6.2016, the Arbitration Court again dismissed the employee's case.

5. The same was again challenged by the employee before the

Tribunal, which, through Ext.P8 order impugned in WP(C) No.24620/2018

allowed the appeal, directing reinstatement with back wages. It is seeking

implementation of the same that the connected writ petition, WP(C) No.

26004/2018, is filed by the employee.

6. The learned counsel appearing for the Bank submitted that the

first respondent/employee ought to have joined after the expiry of the

period of leave and the act of not joining constituted misconduct and

appropriate action was taken by the Bank. Thereafter, the employee never

joined and therefore, this was a case where he voluntarily abandoned the 2025:KER:27731 WP(C) Nos. 24620 & 26004 of 2018

employment. It was also stated that there was nothing to prove Ext.A23

Audio CD relied on by the employee and that there was no dispute on the

attendance register produced by the Bank, which showed the absence of the

employee. Twice, the Arbitration Court had found lack of evidence to

substantiate the contentions of the employee. It is also stated that the first

registered notice issued was returned as the addressee was not in station

and there was nothing to show that the employee had worked between

1.4.2004 and 27.4.2004. None were examined to prove the said case of the

employee. There was no proof of the medical certificate relied on by the

employee in his reply to the second show cause notice. The learned counsel

appearing for the Bank also relied on the following judgments: Vinod v.

Kerala State Electricity Board Ltd. [2020 (6) KLT 628], Metropolitan Transport

Corporation v. V.Venkatesan [2009 KHC 5068], Board of Directors of the

Venjaramood Co-operative Rubber Marketing Society Ltd. and Anr. v.

M.Nazimuddin and Ors. [2007 (3) KHC 827], etc.

7. The learned counsel appearing for the employee/first

respondent, on the other hand, contended that the employee had in fact

worked from 1.4.2004 to 27.4.2004 and was not permitted to sign or mark his

attendance from 28.4.2004, which made him file a complaint before the

Assistant Registrar on 3.5.2004. The Assistant Registrar also passed an order 2025:KER:27731 WP(C) Nos. 24620 & 26004 of 2018

permitting him to join. On 28.11.2014, following the order of remand by the

Tribunal, he filed an application before the Arbitration Court for issuing

summons to a person in the Bank and another employee who was there

during the relevant period. Again, on 17.3.2015, the employee filed an

application to send Ext.A23 Audio CD, in which the conversation between

the then President and the employee was recorded, to the Forensic Science

Laboratory to record the voice of the person who conversed with him.

Pending the matter before the Arbitration Court, the President of the Bank

died which made it impossible for the employee to adduce any oral evidence

in that regard. The request of the employee to consider Ext.A23 under

Sections 32(2)and 32(3) of the Indian Evidence Act was also declined by the

Arbitration Court. It was under such circumstances that he moved the

Tribunal, which passed the order impugned in WP(C) No.24620/2018

directing reinstatement with full back wages.

8. The learned counsel appearing for the employee/first

respondent relied on the following judgments: Abdul Salam v. Kerala State

Electricity Board Ltd. [2017 (3) KLT 736], Krushnakant B. Parmar v. Union of

India & Anr. [(2012) 3 SCC 178], Lakshmi Precision Screws Ltd. v. Ram Bahagat

[(2002) 6 SCC 552], etc.

9. After hearing the learned counsel appearing on both sides, a few 2025:KER:27731 WP(C) Nos. 24620 & 26004 of 2018

facts deserved to be noticed. It was the specific case of the employee that he

worked from 1.4.2004 to 27.4.2004 but was not permitted to work from

28.4.2004. It is to be noted that it was the employee who moved the Assistant

Registrar on 3.5.2004, complaining that he was not permitted to attend his

duties and on his complaint, notice was issued by the Assistant Registrar for

a hearing on 7.6.2004. The Assistant Registrar had, in fact, accepted his

contention and directed the Bank to permit the employee to join duty,

though his case of having worked from 1.4.2004 to 27.4.2004 was not fully

accepted. The Bank could have taken an appropriate disciplinary action

against him for the said absence.

10. The order of the Assistant Registrar was challenged before this

Court, and this Court had set aside the order of the Assistant Registrar and

relegated the parties to the Arbitration Court (as seen from Ext.P2 in WP(C)

No.26004/2018). Therefore, it is clear that from then on, the employee was

litigating for allowing him to join duty, and it was the Bank that prevented

him from joining. Under such circumstances, it could never be said that the

employee had voluntarily left/abandoned the employment as he could not

have worked, or rather he was prevented from work as the Bank had

challenged the order passed by the Assistant Registrar permitting him to

join. The Bank could have allowed him to join without prejudice to their 2025:KER:27731 WP(C) Nos. 24620 & 26004 of 2018

right to take appropriate action for the period of absence from 1.4.2004 to

27.4.2004. That not having been done, the case of the Bank that the

employee had voluntarily abandoned the service cannot be accepted and

the Tribunal is fully justified in rejecting the said claim of the

bank/employer.

11. Earlier, after the judgment of the Tribunal remanding the

matter, the petitioner had filed an application for summoning the

President and also for sending the audio CD for forensic examination, as

seen from Ext.R1(c) dated 28.11.2014. It cannot, therefore be said that

the employee did not take any steps to prove the case as directed

in the order of remand. The Arbitration Court, after the remand, took

two years to decide the case, by which time the person with whom the

employee had the conversation had died. The employee has also

produced evidence before this Court as seen from I.A.No.1/2024 in

WP(C) No. 24620/2018.

12. The determination of whether "unauthorized absence from

duty" constitutes a failure of devotion to duty or unbecoming behaviour by

a government servant requires considering whether the absence was wilful

or due to compelling circumstances. If the absence arises from unavoidable

situations, it cannot be considered wilful. Unauthorized absence may occur 2025:KER:27731 WP(C) Nos. 24620 & 26004 of 2018

without prior permission, but it does not always imply wilfulness, as

employees may face various compelling circumstances. Long absences

should not automatically be interpreted as abandonment of service;

abandonment implies an intentional and permanent relinquishment of

duty. Each case should be assessed based on its specific facts to determine if

the unauthorised absence has turned into abandonment. Clear and

intentional abandonment based on willful failure to return from leave does

not necessitate a departmental inquiry, as the absence may reflect a

deliberate decision to cease service.

13. Legally, temporary absence and abandonment differ. Short

absences with the intention to return do not constitute abandonment,

which requires a complete and intentional cessation of duties. While

absence for valid reasons may indicate misconduct, prolonged absence

could suggest voluntary abandonment of service, which ends the

employment relationship unilaterally without employer intervention.

14. It is undisputed that no notice was issued to the employee/first

respondent, and no enquiry was conducted before the Bank found that the

employee had voluntarily abandoned the service. The lack of notice in this

case, which vitally affects the right of the first respondent, clearly shows

that the procedure adopted by the Bank was not fair.

2025:KER:27731 WP(C) Nos. 24620 & 26004 of 2018

15. As regards the interference with the orders of the tribunals, in

Syed Yakoob v. K.S. Radhakrishnan and Ors. [1963 SCC Online SC 24], it was

noted that a finding of fact based on no evidence constitutes an error of law

correctable by a writ of certiorari. However, the adequacy of evidence and

inference drawn from it falls within the tribunal's exclusive jurisdiction and

cannot be challenged in writ courts. In Ajay Singh v. Khacheru and Ors.

(MANU/SC/0008/2025), it was held that findings can be set aside if

unsupported by evidence or legally perverse. Mukand Ltd. v. Mukand Staff

and Officers' Association [(2004) 10 SCC 460] reinforced that findings through

evidence appreciation by inferior tribunals cannot be questioned in writ

proceedings. Dharangadhara Chemical Works Ltd. v. State of Saurashtra [AIR

1957 SC 264] clarified that a tribunal's factual decisions are challengeable

under Article 226 only if completely unsupported by evidence. In State of

Andhra Pradesh v. S.Sree Rama Rao [AIR 1963 SC 1723] it is stated that if

some evidence supports a conclusion, the High Court should not second-

guess that evidence in a writ petition. Rattan Enterprises and Ors v. State of

Odisha and Ors (MANU/OR/0625/2023) case emphasized that "no evidence"

includes scenarios where the evidence as a whole fails to support the

tribunal's finding. Management of Madurantakam Coop. Sugar Mills Ltd. v.

S.Viswanathan [(2005) 3 SCC 193] reinforced that writ courts should not delve 2025:KER:27731 WP(C) Nos. 24620 & 26004 of 2018

into factual disputes unless findings are deemed perverse or lacking legal

evidentiary support. The High Court cannot act as an appellate authority

over the decisions of the Tribunal unless the findings are patently perverse.

Absent such conditions, judicial restraint remains the appropriate course.

16. Though the petitioners in both writ petitions were directed to

explore the possibilities of an amicable settlement in the facts of the case,

such efforts also failed. In view of the findings rendered above, I am not in a

position to hold that Ext.P8 order passed by the Tribunal warrants any

interference by this Court.

Accordingly, WP(C) No.24620/2018 filed by the Co-operative Bank is

dismissed, and WP(C) No.26004/2018 is allowed. The respondents are

directed to comply with the order of the Kerala Co-operative Tribunal in

Appeal No. 84/2017 dated 26.6.2018 without any further delay.

Sd/-

MOHAMMED NIAS C. P., JUDGE MMG 2025:KER:27731 WP(C) Nos. 24620 & 26004 of 2018

APPENDIX OF WP(C).NO.24620/2018

PETITIONERS' EXHIBITS:

EXHIBIT P1. COPY OF THE PLAINT IN ARC 71 OF 2006 ON THE FILES OF THE KERALA STATE CO-OPERATIVE ARBITRATION COURT.

EXHIBIT P1[A]. COPY OF THE COUNTER STATEMENT FILED BY THE APPELLANTS IN ARC NO. 71/2006.

EXHIBIT P2. COPY OF THE AWARD DATED 5.7.2012.

EXHIBIT P3. COPY OF THE MEMORANDUM OF APPEAL IN AP NO.16/2013 OF THE CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM.

EXHIBIT P4. COPY OF THE JUDGMENT DATED 15.1.2014 IN APPEAL NO. 16/2013.

EXHIBIT P5. COPY OF THE AFFIDAVIT AND PETITION DATED 12.01.2016 IN A.R.C 71 OF 2016 OF THE ARBITRATION COURT, THIRUVANANTHAPURAM.

EXHIBIT P6. COPY OF THE ORDER DATED 16.06.2016 IN ARC 71/2006.

EXHIBIT P7. COPY OF THE APPEAL, FILED BY THE FIRST RESPONDENT BEFORE THE TRIBUNAL.

EXHIBIT P8. COPY OF THE JUDGMENT DATED 26.6.2018 IN A.P 84 OF 2017 OF THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM.

RESPONDENTS' EXHIBIT:

EXHIBIT R1(A) THE TRUE COPIES OF NOTICE OF HEARING DATED 7.6.2004, ALONG WITH THE ENVELOPE AND THE LETTER DATED 19.7.2004

EXHIBIT R1(B) THE TRUE COPY OF THE JUDGMENT OF THE TRIBUNAL IN APPEAL NO.16/2013 DATED 15.01.2014 2025:KER:27731 WP(C) Nos. 24620 & 26004 of 2018

EXHIBIT R1(C) THE TRUE COPY OF THE INTERLOCUTORY APPLICATION DATED 28.1.2014

EXHIBIT R1(D) THE TRUE COPY OF THE APPLICATION DATED 17.3.2015

EXHIBIT R1(E) THE TRUE COPY OF THE APPLICATION DATED 12.1.2016 FILED BY 1ST RESPONDENT UNDER SECTION 70(2) OF THE KERALA CO-OPERATIVE SOCITIES ACT AND SECTIONS 32, 65A AND 65B OF THE EVIDENCE ACT

EXHIBIT R1(F) THE TRUE COPY OF THE APPLICATION DATED 29.1.2015

EXHIBIT R1(G) THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE BANK DATED 25.2.2015

EXHIBIT R1(H) THE TRUE COPY OF THE COUNTER STATEMENT

EXHIBIT R1(I) THE TRUE COPY OF THE SAID RECEIPT

EXHIBIT R1(J) TRUE COPY OF THE RELEVANT PAGE OF THE PASSPORT NO.E5971423 2025:KER:27731 WP(C) Nos. 24620 & 26004 of 2018

APPENDIX OF WP(C).NO.26004/2018

PETITIONER'S EXHIBITS: