Abhilash K.S. and Viswakkumar V v State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 11[ TH ] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943`** ## **`WP(C) NO. 8168 OF 2022`** ## **`PETITIONER/S:`** ``` 1 ABHILASH K.S. AGED 38 YEARS S/O. K. SASEENDRAN, KATTUNGAL HOUSE, THONDANKULANGARA, AVULOOKUNNU P. O., ALAPPUZHA - 688 006. 2 VISWAKUMAR V. AGED 38 YEARS S/O. LATE VISWAMBHARAN, THAYYIL KIZHAKKATHIL, PUTHUPPALLY P. O., KAYAMKULAM, ALAPPUZHA - 690527. BY ADVS. B.RATHEESH GYOTHISH CHANDRAN ``` ## **`RESPONDENT/S:`** ``` 1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, GOVERNMENT SECRETARIAT, DEPARTMENT OF INDUSTRIES AND COIR, THIRUVANANTHAPURAM - 695 001. 2 THE DIRECTOR DIRECTORATE OF COIR DEVELOPMENT, COIR BHAVAN, PALAYAM, NANDAVANAM, THIRUVANANTHAPURAM - 695033. 3 MANAGING DIRECTOR KERALA STATE CO-OPERATIVE COIR MARKETING FEDERATION LTD.(COIRFED) ON RAVI KARANAKARAN ROAD, POST BOX NO.4616, ALAPPUZHA - 688 012. ``` ``` WP(C) NO. 8168 OF 2022 ``` ``` 2 ``` - `4 THE PRESIDENT KERALA STATE CO-OPERATIVE COIR MARKETING FEDERATION LTD.(COIRFED) ON RAVI KARANAKARAN ROAD, POST BOX NO.4616, ALAPPUZHA - 688 012.` - `5 THE GENERAL MANAGER KERALA STATE CO-OPERATIVE COIR MARKETING FEDERATION LTD.(COIRFED) ON RAVI KARANAKARAN ROAD, POST BOX NO.4616, ALAPPUZHA - 688 012.` - `6 WORKS MANAGER RUBBERISED COIR PRODUCT (RCP) UNIT, KERALA STATE CO-OPERATIVE COIR MARKETING FEDERATION LTD.(COIRFED) CCNB ROAD, SEA VIEW WARD, ALAPPUZHA - 688 001.` - `7 R. GIREESAN NAIR DOMESTIC ENQUIRY OFFICER (COIRFED), ANJITHAM, URUPOYKA, ATTINGAL - 695104.` ``` SRI P C SASIDHARAN SC SMT ANIMA M GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 8168 OF 2022 ``` ``` 3 ``` ## **JUDGMENT** The petitioners herein are employees of the Kerala State Co-operative Coir Marketing Federation Ltd. (Coirfed). On 16.4.2021, the petitioners were placed under suspension on the cover of Exhibit P5 order on the allegation that they had committed theft/misappropriation of mattresses. Later, on 30.4.2021, the memo of charges was issued, to which the petitioners are stated to have filed separate explanations, the copies of which are produced as Exhibits P9 and P10. An enquiry officer was appointed and enquiry proceedings commenced. The petitioners assert that based on the advice given by the enquiry officer, the petitioners gave an undertaking that they would remit a sum of Rs.63,076/- being the value of the mattresses, to compensate the loss caused to the employer, however, without admitting the crime or offence. The petitioners contend that they were under the impression that the allegation of theft levelled against them would be withdrawn and their dignity in society and workplace would be restored. However, in the enquiry report, the undertaking given by the petitioners have been treated as a confession and action as contemplated under Section 80 and 95 of the KCS Act and under ``` WP(C) NO. 8168 OF 2022 ``` ``` 4 ``` Rule 198 of the KCS Rules have been recommended. It is under the above backdrop that the petitioners are before this Court seeking the following reliefs. (i) issue a writ of certiorari calling for the records leading to Exhibit P5 and Exhibit P6 orders and to quash the same as unjust and illegal (ii) issue a writ of certiorari calling for the records leading to Exhibit P7 and Exhibit P8 memo of charges and statement of allegations and to quash the same as unjust and unsustainable. (iii) Issue a writ of certiorari calling for the records leading to Exhibit P17 enquiry report and to quash the same as unjust and unsustainable (iv) to direct the respondents to reinstate the petitioners in service immediately. 2. I have heard Sri. Ratheesh B., the learned counsel appearing for the petitioners and Sri. P.C. Sasidharan, the learned counsel appearing for the Coir Marketing Federation. ## 3. In **Association of Milma Officers Ksheera Bhavan TVM and** **Others v State of Kerala and Others [** 2015 (1) KLT 849], a larger Bench of this Court had delineated the circumstances under which a writ petition could be maintained against a co-operative society. It was held that when the action complained in the writ petition is of any statutory violation on the part of the Co-operative Society, or when the action of the ``` WP(C) NO. 8168 OF 2022 ``` ``` 5 ``` Co-operative Society, if falls in a public domain or when a breach of the public duty is complained of, a writ petition can be entertained. The petitioners have no case that their grievance would come within any of the exceptions carved out in **Milma** (supra). 4. S.69 of the Kerala Co-operative Societies Act provides resolution of disputes by Co-operative Arbitration Court and Registrar. As per this Section, notwithstanding anything contained in any law for the time being in force, if a dispute arises between the society and its employee, such dispute shall be referred to the Co-operative Arbitration Court constituted under S.70A, in the case of non - monetary disputes. S.69(2) provides that any dispute arising in connection with employment of officers and servants, including their promotion and inter se seniority shall also be deemed to be a dispute for the purposes of S.69(1). It would be open to an employee against whom disciplinary proceedings have been initiated and termination orders have been passed to seek adjudication of the dispute under Section 69(2)(d) of the KCS Act as held by this Court in **Edava Service Co-Operative Bank Ltd v Co-Operative Arbitration Court** 2008 (4) KHC 192, which judgment was upheld by the Division bench in WA 2057/2008. In **Annamma K.A. V Secretary, Cochin Co-operative** ``` WP(C) NO. 8168 OF 2022 ``` ``` 6 ``` **Hospitals Ltd** (2018 (1) KLT 414) the Hon’ble Supreme Court had held that the KCS Act and the ID Act both possess and enjoy the concurrent jurisdiction to decide any service disputes arising between the Society’s employee and the society, subject of course to the tests as laid down in para 104 of the judgment. 5. In view of the principles above, I am of the considered opinion that this writ petition is not liable to be entertained. Reserving the rights of the petitioners to exhaust their remedies in accordance with the law, this writ petition will stand dismissed. ## **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** avs ``` WP(C) NO. 8168 OF 2022 ``` ``` 7 ``` ## **`APPENDIX OF WP(C) 8168/2022`** ``` PETITIONER EXHIBITS ``` |`Exhibit P1`|`TRUE COPY OF APPOINTMENT LETTER`| |---|---| ||`NO.C.F./M.D./2011-2012/15 DATED 18.05.2011 OF`| ||`THE 1ST PETITIONER.`| |`Exhibit P2`|`TRUE COPY OF APPOINTMENT LETTER NO.C.S.2/7261/08`| ||`DATED 02.07.2009 OF THE 2ND PETITIONER.`| |`Exhibit P3`|`TRUE COPY OF LETTER NO.C.F./E1/897/VOL.VI/1109`| ||`DATED 26.03.2021 ISSUED BY 5TH RESPONDENT.`| |`Exhibit P4`|`TRUE COPY OF PRODUCTION TRANSFER NOTE NO.894 AND`| ||`895 DATED 27.03.2021.`| |`Exhibit P5`|`TRUE COPY OF ORDER OF SUSPENSION ISSUED TO 1ST`| ||`PETITIONER VIDE C.F./E1/2020-21/21 DATED`| ||`16.04.2021.`| |`Exhibit P6`|`TRUE COPY OF ORDER OF SUSPENSION ISSUED TO 2ND`| ||`PETITIONER VIDE C.F./E1/2020-21/21 DATED`| ||`16.04.2021.`| |`Exhibit P7`|`TRUE COPY OF MEMO OF CHARGES DATED 30.04.2021`| ||`ALONG WITH STATEMENT OF ALLEGATIONS RECEIVED BY`| ||`1ST PETITIONER.`| |`Exhibit P8`|`TRUE COPY OF MEMO OF CHARGES DATED 30.04.2021`| ||`ALONG WITH STATEMENT OF ALLEGATIONS RECEIVED BY`| ||`2ND PETITIONER.`| |`Exhibit P9`|`EXPLANATION DATED 10.05.2021 SUBMITTED BY THE`| ||`1ST PETITIONER.`| |`Exhibit P10`|`EXPLANATION DATED 10.05.2021 SUBMITTED BY THE`| ||`2ND PETITIONER.`| |`Exhibit P11`|`TRUE COPY OF INTIMATION DATED 16.06.2021`| ||`RECEIVED BY 1ST PETITIONER.`| |`Exhibit P12`|`TRUE COPY OF INTIMATION DATED 16.06.2021`| ||`RECEIVED BY 2ND PETITIONER.`| |`Exhibit P13`|`TRUE COPY OF LETTER DATED 25.08.2021 RECEIVED BY`| ||`THE 1ST PETITIONER.`| ``` WP(C) NO. 8168 OF 2022 ``` ``` 8 ``` ``` Exhibit P14 TRUE COPY OF LETTER DATED 25.08.2021 RECEIVED BY THE 2ND PETITIONER. Exhibit P15 TRUE COPY OF UNDERTAKING DATED 07.09.2021 SUBMITTED BY 1ST PETITIONER. Exhibit P16 TRUE COPY OF UNDERTAKING DATED 07.09.2021 SUBMITTED BY 2ND PETITIONER. Exhibit P17 TRUE COPY OF ENQUIRY REPORT DATED 03.11.2021 OBTAINED UNDER RTI ACT. ```