**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE SATHISH NINAN**
**MONDAY, THE 30[TH] DAY OF JANUARY 2023 / 10TH MAGHA, 1944**
## **WP(C) NO. 42669 OF 2022**
## **PETITIONER:**
||ABDUL SAMAD K.P.,|
|---|---|
||AGED 52 YEARS, S/O ASSAN,|
||SENIOR CLERK, TANALUR SERVICE CO-OPERATIVE BANK LIMITED,|
||K. PURAM P.O., TANALUR VIA, MALAPPURAM - 676307, RESIDING AT|
||KOYAKKATTI PARAMBIL HOUSE, TANALUR POST, MALAPPURAM,|
||PIN – 676307.|
||BY ADV R.SUDHISH|
|**RESPONDENTS:**||
|1|THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES|
||SAHAKARANA BHAVAN,|
||MALAPPURAM, PIN – 676505.|
|2|TANALUR SERVICE CO-OPERATIVE BANK LIMITED NO. M2|
||K. PURAM P.O., TANALUR VIA, MALAPPURAM-676307|
||REPRESENTED BY ITS SECRETARY.|
|3|THE MANAGING COMMITTEE,|
||TANALUR SERVICE CO-OPERATIVE BANK LIMITED NO. M2,|
||K. PURAM P.O., TANALUR VIA, MALAPPURAM – 676307.|
||REPRESENTED BY ITS PRESIDNT.|
||BY ADV K.M SATHYANATHA MENON K.M|
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **SATHISH NINAN, J.**
**= = = = = = = = = = = = = = = = = = W.P.(C) No.42669 of 2022 = = = = = = = = = = = = = = = = = = Dated this the 30[th] day of January, 2023**
## **J U D G M E N T**
The petitioner, while working as a clerk under the second respondent Bank, was suspended from service pending enquiry alleging embezzlement. The disciplinary proceedings culminated in an order of dismissal from service. The petitioner challenged the same before the Arbitration Court, in ARC 21/2014. Since the chargesheet was issued by the Chairman of the Disciplinary Sub-committee, the Arbitration Court, relying on the judgment of this Court in _**Kodenchery Service Co-operative Bank Ltd. v. Joshy Varghese 2020 (4) KLT 129,**_ held the proceedings to be invalid and accordingly set aside the same. The liberty to initiate fresh proceedings in accordance with law was left open.
2. Pursuant thereto, as is evidenced by Ext.P3, fresh enquiry proceedings were initiated.
**W.P.(C) No.42669 of 2022**
-: 2 :-
3. The petitioner approached this Court in W.P.(C) No.22522/2022 seeking a direction to the second respondent Bank to reinstate the petitioner in service.
The second respondent filed a counter affidavit (marked as Ext.P8 in the present writ petition) producing therewith a copy of the minutes of the Managing Committee of the Bank. As per the minutes, on 28.01.2022, the Managing Committee took a decision to suspend the petitioner from service with effect from 28.01.2022 pending de novo enquiry. This Court as per Ext.P7 judgment dated 15.09.2022 directed the Bank to consider whether the petitioner should be deemed to be under suspension or whether he should be reinstated or whether he can be placed under fresh suspension.
4. In the meantime, the Managing Committee issued Ext.P9 communication dated 19.09.2022 to the petitioner extending the period of suspension for a further period of six months from 28.07.2022.
## **W.P.(C) No.42669 of 2022**
-: 3 :-
5. In compliance with the directions contained in Ext.P7 judgment, the petitioner was served with Ext.P10 notice for hearing with regard to the suspension/ reinstatement in service. The notice required the petitioner to appear for a personal hearing at 10.30 a.m. on 01.10.2022. On 27.09.2022, the petitioner sent Ext.P11 reply to the notice offering his explanations. As is evidenced by Ext.P13(2) Postal Acknowledgment Card, Ext.P11 explanation was received at the Bank only on 06.10.2022 that is, beyond the date fixed for hearing.
6. On 01.10.2022, on the failure of the petitioner to appear for hearing in terms of Ext.P10 notice, the Managing Committee took Ext.P14 decision to the effect that, the petitioner is under suspension as per the decision of the Managing Committee dated 28.01.2022 and its extension dated 06.08.2022, and that, the question of reinstatement and the benefits payable can be considered only after the completion of the disciplinary
## **W.P.(C) No.42669 of 2022**
-: 4 :-
proceedings. The said order, Ext.P14, is under challenge in this writ petition.
7. Heard learned counsel Sri.R.Sudhish on behalf of the petitioner, Sri.Sathyanatha Menon on behalf of the respondents 2 and 3 and also the learned Government Pleader.
8. The following dates and events are of relevance :-
- (1) 03.05.2010 - order of suspension.
- (2) 18.02.2021 - order in ARC
- (3) 29.12.2021 - fresh enquiry and order of suspension.
- (4) 19.09.2022 - extension of suspension.
- (5) 01.10.2022 - impugned order in compliance
with the directions in W.P.(C) No.22522/2022.
9. Though Ext.P11 reply was sent by the petitioner
with regard to the hearing on Ext.P10 notice much before the date fixed for hearing, Ext.P14 order has been
## **W.P.(C) No.42669 of 2022**
-: 5 :-
passed without hearing the petitioner; so also, the petitioner was never served with the order of suspension mentioned in the minutes of the Managing Committee dated
28.01.2022, contends the learned counsel for the petitioner.
10. The present disciplinary enquiry having been initiated pursuant to the liberty granted by the Arbitration Court, is liable to be taken to its logical conclusion. No interference with the same is warranted.
11. What remains is the question as to whether the petitioner is presently under suspension, if so from which date, what are the benefits that he is entitled for the period prior to the date of order in the ARC and thereafter.
12. Though the respondents have produced the minutes of the Managing Committee deciding to initiate fresh proceedings and also placing the petitioner under suspension with effect from 28.01.2022, the petitioner disputes about the communication of the decision of
## **W.P.(C) No.42669 of 2022**
-: 6 :-
suspension on him. No documents evidencing such communication has been produced in this proceedings though the respondents would contend that the same was communicated. In the said regard, the learned counsel for the respondents drew attention of this Court to page 3 of Ext.P14 order wherein it is stated that the order of suspension and initiation of fresh proceedings was received by the petitioner on 01.02.2022. Be that as it may, for the present it only needs to be noted that as of now there is no material before this Court to find either way.
13. The period during which the petitioner was out of service can be categorized as :-
- (1) From 03.05.2010 to 18.02.2021 (date of ARC order)-period under suspension.
- (2) From 18.02.2021 till the date of fresh suspension, the date of which is to be ascertained on materials.
## **W.P.(C) No.42669 of 2022**
-: 7 :-
14. From reading of the minutes of the Managing Committee dated 29.12.2021 and the subsequent extension of suspension under Ext.P9 dated 19.09.2022, it is evident that consequent on Ext.P1 order in ARC dated 18.02.2021, the Managing Committee treated the petitioner as reinstated in service.
15. It is a fact that the petitioner was not heard before Ext.P14 order was passed. Though the petitioner had sent Ext.P11 reply on 27.09.2022, it was served on the committee only on 06.10.2022, ie. after the date fixed for hearing (01.10.2022). Either parties are not to be found fault for the same.
16. It is only appropriate that fresh orders be passed after affording an opportunity of hearing to the petitioner also. While passing orders, the third respondent shall specifically advert to the period prior to the passing of the order dated 18.02.2021 in ARC and also the date of communication of the fresh order of suspension, and also the period thereafter. In order to
## **W.P.(C) No.42669 of 2022**
-: 8 :-
enable the same, the petitioner shall appear before the third respondent on 15.02.2023 at 3.00 p.m. for a personal hearing and for submission of his explanations.
17. As held supra, the disciplinary proceeding is to continue. Let the same be completed within a period of three months from today.
Writ Petition is ordered as above.
Sd/- **SATHISH NINAN JUDGE**
kns/-
//True Copy//
P.S. to Judge
## **APPENDIX OF WP(C) 42669/2022**
PETITIONER EXHIBITS
|Exhibit P1|COPY OF THE ORDER IN A.R.C. NO. 21 OF 2014|
|---|---|
||DATED 18.2.2021 OF THE CO-OPERATIVE|
||ARBITRATION COURT (NORTHERN), KOZHIKODE|
|Exhibit P2|COPY OF THE REPRESENTATION SUBMITTED BY THE|
||PETITIONER BEFORE THE 3RD RESPONDENT DATED|
||5.2.2022|
|Exhibit P3|COPY OF THE COVERING LETTER DATED 31.1.2022|
||ALONG WITH MEMO OF CHARGES|
|Exhibit P4|TRUE COPY OF THE EXPLANATION TO THE MEMO OF|
||CHARGES DATED NIL|
|Exhibit P5|TRUE COPY OF THE LETTER ISSUED BY THE|
||CHAIRMAN OF DISCIPLINARY SUB COMMITTEE TO THE|
||PETITIONER DATED 16.3.2022|
|Exhibit P6|TRUE COPY OF THE PETITION SUBMITTED BY THE|
||PETITIONER BEFORE THE DOMESTIC ENQUIRY|
||OFFICER DATED 24.6.2020 (CORRECT DATE IS|
||24.6.2022)|
|Exhibit P7|TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.|
||22522 OF 2022 DATED 15.9.2022|
|Exhibit P8|TRUE COPY OF THE PETITION I.A. NO. 1 OF 2022|
||OF 2022 IN W.P.(C) 22522 OF 2022 OF THIS|
||HONOURABLE COURT TO PRODUCE THE ADDITIONAL|
||DOCUMENTS DATED 23.8.2022|
|Exhibit P9|TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT|
||DATED 19.9.2022|
|Exhibit P10|TRUE COPY OF THE NOTICE ISSUED BY THE 2ND|
||RESPONDENT SOCIETY TO THE PETITIONER DATED|
||22.9.2022|
|Exhibit P11|TRUE COPY OF THE OBJECTION SUBMITTED BY THE|
||PETITIONER DATED 27.9.2022|
|Exhibit P12|TRUE COPY OF THE POSTAL RECEIPT DATED|
||27.9.2022|
APPENDIX- **WP(C) 42669/2022**
-2-
|Exhibit P13|TRUE COPY OF THE ACKNOWLEDGEMENT CARD SHOWING|
|---|---|
||THE RECEIPT OF EXHIBIT P12 ON 6.10.2022|
|Exhibit P14|TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT|
||SOCIETY DATED 1.10.2022|
|RESPONDENT EXHIBITS||
|Exhibit R3(b)|A TRUE COPY OF THE STATEMENT DATED 10.05.2010|
||GIVEN BY THE PETITIONER TO THE SUB COMMITTEE|
||WHO HAVE INITIATED DISCIPLINARY PROCEEDINGS|
||AGAINST THE WRIT PETITIONER|
|Exhibit R3(h)|A TRUE COPY OF THE REPLY SUBMITTED BY THE|
||PETITIONER TO EXT.R3[G] DATED NIL FEBRUARY|
||2022|
|Exhibit R3(i)|A TRUE COPY OF THE OBJECTION SUBMITTED BY THE|
||MANAGEMENT DATED 11.07.2022 BEFORE THE|
||DOMESTIC ENQUIRY OFFICER|
|Exhibit R3(c)|A TRUE COPY OF THE AUDIT REPORT FORWARDED BY|
||SRI.SAJAN PHILIP, AUDITOR ATTACHED TO THE|
||OFFICE OF THE JOINT REGISTRAR [AUDIT],|
||MALAPPURAM DATED 10.05.2010|
|Exhibit R3(a)|A TRUE COPY OF THE CONFESSION LETTER DATED|
||3.05.2010 GIVEN BY THE WRIT PETITIONER TO THE|
||3RD RESPONDENT|
|Exhibit R3(d)|A TRUE COPY OF FIRST INFORMATION REPORT|
||NO.3/2011 OF VACB,DEPUTY SUPERINTENDENT OF|
||POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU,|
||MALAPPPURAM|
|Exhibit R3(e)|A TRUE COPY OF THE COMMUNICATION FORWARDED BY|
||THE DEPUTY SUPERINTENDENT OF POLICE,|
||VIGILANCE AND ANTI CORRUPTION BUREAU,|
||MALAPPURAM TO THE 3RD RESPONDENT DATED|
||05.10.2018|
|Exhibit R3(f)|A TRUE COPY OF THE AWARD OF THE JOINT|
||REGISTRAR OF COOPERATIVE SOCIETIES [GENERAL],|
||MALAPURAM DATED 18.03.2020|
APPENDIX- **WP(C) 42669/2022**
-3-
|Exhibit R3(g)|A TRUE COPY OF THE CHARGE MEMO DATED|
|---|---|
||31.01.2022 ISSUED TO THE WRIT PETITIONER BY|
||THE PRESIDENT OF THE GOVERNING BODY OF|
||TANALUR SERVICE COOPERATIVE BANK LTD.|
|Exhibit R3(j)|A TRUE COPY OF THE ENQUIRY PROCEEDINGS DATED|
||25.07.2022 BY THE ENQUIRY OFFICER ON EXT.P6|
|Exhibit R3(k)|A TRUE COPY OF THE COMMUNICATION ISSUED BY|
||THE POLICE SUPERINTEND DATED 23-11-2022 TO|
||THE RESPONDENT BANK|
|Exhibit R3(l)|A TRUE COPY OF THE COVERING LETTER DATED 9-|
||12-2022 ALONG WITH THE ORDER NO.TSCB/DBR-|
||02/2022 DATED 29.11.2022|
|Exhibit R3(j)|A TRUE COPY OF THE AGENDA NO.III AND DECISION|
||OF THE COMMITTEE OF THE BANK DATED 26-11-|
||20222 OF TANALUR SERVICE CO OPERATIVE BANK|
|Exhibit R3(k)|A TRUE COPY OF THE LETTER SEEKING FURTHER|
||EXTENSION OF SUSPENSION OF THE PETITIONER|
||DATED 22-12-2022 TO THE JOINT|
||REGISTRAR(GENERAL), MALAPPURAM|
|Exhibit R3(l)|A TRUE COPY OF THE ORDER JRMPM/50/2023-|
||CRP(2)/KDIS DATED 10-1-2023 OF THE JOINT|
||REGISTRAR(GENERAL), MALAPPURAM|
|Exhibit R3(m)|A TRUE COPY OF THE COMMUNICATION ISSUED BY|
||THE SUPERINDENT POLICE OF VIGILANCE AND|
||ANTICORRUPTION BEARU DATED 27-12-2022|
|Exhibit R3(n)|A TRUE COPY OF THE ORDER NO.TSCB/DBR-02/2023|
||DATED 10-01-2023 ALONG WITH A COVERING LETTER|
||DATED 10-1-2023 TO THE SUPERINDENT OF POLICE|
|Exhibit R3(o)|A TRUE COPY OF THE LETTER DATED 31.1.2022|
||FORWARDED BY THE PRESIDENT OF THE BANK TO THE|
||WRIT PETITIONER ALONG WITH DECISION NO.2 AND|
||CHARGE MEMO|
|Exhibit R3(p)|A TRUE COPY OF THE ACKNOWLEDGEMENT RECEIVED|
||ON RECEIPT OF EXT.R3[O]|
APPENDIX- **WP(C) 42669/2022**
-4-
Exhibit R3(q) TRUE COPY OF THE DECISION COMMUNICATED WITH THE WRIT PETITIONER BY THE PRESIDENT OF THE BANK BY COMMUNICATION DATED 27.1.2023 ALONG WITH POSTAL RECEIPT Exhibit R3(r) A TRUE COPY OF THE STATEMENT DATED 18.12.2020 GIVEN BY THE WRIT PETITIONER BEFORE DEPUTY SUPERINTENDENT OF POLICE, VACB MALAPPURAM
-----
