C.B. Sanjayan v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 11TH DAY OF AUGUST 2017/20TH SRAVANA, 1939** **WP(C).No. 19217 of 2017 (B) ----------------------------** **PETITIONER(S): -------------** **C.B. SANJAYAN, S/O.C.R.BALAN, CHUKKINI HOUSE, NOCHIPULLY P.O., MUNDUR, PALAKKAD-678 592.** **BY ADVS.SRI. V.M. KURIAN SRI. MATHEW B. KURIAN SRI. K.T. THOMAS** **RESPONDENT(S):** **--------------** ## **1. STATE OF KERALA,** **REP. BY SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, DEPARTMENT OF CO-OPERATION, THIRUVANANTHAPURAM-695 001.** **3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) CIVIL STATION, PALAKKAD-678 014.** **4. THE MANAGING COMMITTEE, MUNDUR SERVICE CO-OPERATIVE BANK LTD.NO.F.1650, MUNDUR P.O., PALAKKAD, PIN-678 592, REP. BY ITS PRESIDENT.** **WP(C).No. 19217 of 2017 (B)** **---------------------------** ## **5. THE PRESIDENT,** **MANAGING COMMITTEE MUNDUR SERVICE CO-OPERATIVE BANK LTD.NO.F.1650, MUNDUR P.O., PALAKKAD, PIN-678592.** **6. MUNDUR SERVICE CO-OPERATIVE** **BANK LTD.NO.F.1650, MUNDUR P.O., PALAKKAD, PIN-678 592, REP. BY ITS SECRETARY.** **R1-R3 BY SR.GOVERNMENT PLEADER SRI. P.M. MANOJ R4-R6 BY ADV. SRI. P.C. SASIDHARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 19217 of 2017 (B)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 : TRUE COPY OF THE LETTER DATED 3-4-2013 SUBMITTED BY PETITIONER. EXHIBIT P2 : TRUE COPY OF THE REQUEST LETTER DATED 7-8-2014 SUBMITTED BY PETITIONER. EXHIBIT P3 : TRUE COPY OF THE REQUEST LETTER DATED 23-11-2015 SUBMITTED BY PETITIONER. EXHIBIT P4 : TRUE COPY OF THE REQUEST LETTER DATED 9-8-2014 SUBMITTED BY PETITIONER. EXHIBIT P5 : TRUE COPY OF THE REQUEST LETTER DATED 13-6-2016 SUBMITTED BY PETITIONER. EXHIBIT P6 : TRUE COPY OF THE SHOW CAUSE NOTICE DATED 14-7-2016 ISSUED BY PRESIDENT OF THE SOCIETY. EXHIBIT P7 : TRUE COPY OF THE REPLY LETTER DATED 19-7-2016 SUBMITTED BY PETITIONER. EXHIBIT P8 : TRUE COPY OF THE ORDER DATED 8-11-2016 ISSUED BY PRESIDENT OF THE SOCIETY EXHIBIT P9 : TRUE COPY OF THE REPRESENTATION DATED 3-3-2016 (3-3-2017)SUBMITTED BY PETITIONER. EXHIBIT P10 : TRUE COPY OF THE REPRESENTATION DATED 25-5-2017 SUBMITTED BY PETITIONER TO 2ND RESPONDENT. EXHIBIT P11 : TRUE COPY OF THE REPRESENTATION DATED 25-5-2017 SUBMITTED BY PETITIONER TO 3RD RESPONDENT. EXHIBIT P12 : TRUE COPY OF THE NOTICE DATED 15.2.2017 ISSUED BY CONVENOR, SUB COMMITTEE EXHIBIT P13 : TRUE COPY OF THE STUDENT FEE ACKNOWLEDGEMENT ISSUED BY ICSI** **WP(C).No. 19217 of 2017 (B) ----------------------------** **EXHIBIT P14 : TRUE COPY OF THE STUDENT IDENTITY CARD ISSUED BY ICSI** **EXHIBIT P15 : TRUE COPY OF THE FEE FOR EXAM FORM ISSUED BY ICSI RESPONDENT(S)' EXHIBITS ----------------------EXHIBIT R6(A) TRUE COPY OF THE RESOLUTION NO.1 OF THE MANAGING COMMITTEE OF THE BANK HELD ON 8.11.2016 EXHIBIT R6(B) TRUE COPY OF THE RESOLUTION NO.VI(F) OF THE MANAGING COMMITTEE OF THE BANK HELD ON 7.4.2017 EXHIBIT R6(C) TRUE COPY OF THE ADDL. MEMO OF CHARGES DATED 13.7.2017 ISSUED TO THE PETITIONER** **TRUE COPY** **P.S. TO JUDGE** ## **EL** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.19217 of 2017 ----------------------------------------------Dated this the 11[th] day of August, 2017** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to declare that disciplinary proceedings initiated by respondents 4 to 6 commencing with Ext.P6 show cause notice against the petitioner is illegal, and to quash Ext.P8 order issued by the 5th respondent dated 08.11.2016, whereby the petitioner was suspended from service pending enquiry, and for other consequential reliefs. Material facts for the disposal of the writ petition are as follows: 2. Petitioner entered service as Peon in the 6th respondent Bank on 05.03.1999. Later, petitioner was promoted as Junior Clerk and thereafter as Senior Clerk. While working as Senior Clerk, petitioner availed Leave Without Allowances (LWA) for undergoing Company Secretaryship course. According to the petitioner, he underwent the course and rejoined duty on 03.04.2013. More than three years after rejoining duty, Ext.P6 show cause notice was issued to the petitioner, directing him to explain before the managing 2 **W.P.(C) No.19217 of 2017** committee that the petitioner has not undertaken any journey or activity other than undergoing Company Secretaryship course. Petitioner has submitted Ext.P7 explanation dated 19.07.2016, stating that the entire time period petitioner went on LWA was utilized for the purpose of undergoing Company Secretaryship course. However, according to the petitioner, without taking into account any of the reasons assigned by the petitioner in Ext.P7, he was placed under suspension as per Ext.P8 on and with effect from 09.11.2016. But, in spite of lapse of several months, no show cause or memo of charges is issued to the petitioner till date. Petitioner is not paid subsistence allowance also. More than 6 months have elapsed since the date of suspension. According to the petitioner, he is the only qualified person eligible to be promoted to the post of Branch Manager/Chief Accountant/Internal Auditor. It is with the intention of denying the rightful promotion due, respondents have deliberately suspended the petitioner, and is keeping him out of service. The entire action of the Bank is illegal and arbitrary. 3. Respondents 4 to 6 have filed a counter affidavit refuting the entire allegations raised by the petitioner. That **W.P.(C) No.19217 of 2017** 3 apart, it is stated that the contentions raised in the writ petition relates to service conditions of the petitioner, which can be agitated only in a proceeding under Sec.69 of the Kerala Co-operative Societies Act, 1969, and not otherwise. However, petitioner was kept under suspension based on a resolution adopted by the managing committee as per Ext.R6 (a) dated 08.11.2016 for serious misconduct committed by the petitioner. As per Ext.R6(a), it was decided to constitute a disciplinary sub-committee to conduct enquiry into the misconduct. It is also submitted that, in terms of the Rules, an employee can be kept under suspension at a time only for a period of six months. But, before the expiry of the said period, the managing committee adopted yet another resolution on 07.04.2017, to extend the period of suspension for another period of six months, evident from Ext.R6(b). So also, it is stated that the disciplinary sub-committee issued notice to the petitioner and the petitioner appeared before the disciplinary sub-committee, and he was put on notice with respect to the memo of charges against him. It is also stated that since the enquiry could not be completed, the disciplinary subcommittee submitted a preliminary enquiry report seeking 4 **W.P.(C) No.19217 of 2017** further time. 4. According to the respondents, petitioner, while working in the service of the society, has availed LWA purportedly for the purpose of acquiring higher qualification, and the leave was specifically granted for acquiring higher qualification of Company Secretaryship. Petitioner rejoined duty after the leave period and he was given promotion to the post of Senior Clerk on 12.07.2013. While continuing so, the society received an e-mail communication from RAKBANK, the National Bank of Ras Al-Khaimah, informing the society that the petitioner, while in UAE, has defalcated and cheated the Bank to a tune of Rs.80 lakhs, and when proceedings initiated, he left that nation. Hence the Bank has requested to extend them the facility to initiate legal action including seeking of extradition proceedings through the Interpol. It was only at that point of time, the respondents realize that the petitioner has availed LWA not for the purpose of higher studies, and the leave was utilized for seeking overseas employment. Petitioner has also not produced any documents of his higher studies or certificates on completion of the course, and therefore, misuse of the leave availed by the petitioner in the **W.P.(C) No.19217 of 2017** 5 pretext of higher studies is a serious misconduct. The said aspect is not intimated to the respondent society also. 5. Since the information was received from a foreign Bank, with respect to financial misappropriation, the 6th respondent Bank doing business in banking activities thought it fit to keep the petitioner under suspension. It is also submitted that there is no vacancy for the immediate promotion in the Bank. The respondent Bank has also produced the communications dated 14.06.2017 marked as Exts.R6(a) and R6(b). The suspension order as well as the resolution was passed seeking extension of the suspension period since the documents have to be acquired in respect of the financial misappropriation committed by the petitioner abroad. 6. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the writ petition, and refuting the allegations made in the counter affidavit filed by the respondents. Petitioner has also produced the fee receipts of the Institute of Company Secretaries of India dated 31.07.2008 as Ext.P13, and the identity card issued by the Institute as Ext.P14 and Ext.P15 receipt to acknowledge the 6 **W.P.(C) No.19217 of 2017** receipt of examination fee. 7. An additional counter affidavit is filed by respondents 4 to 6 contending that Ext.R6(c) memo of charges was issued to the petitioner on 13.07.2017 and also controverting the statements contained in the reply affidavit filed by the petitioner. 8. Heard learned counsel for the petitioner, learned Senior Government Pleader and the learned counsel appearing for respondents 4 to 6. Perused the documents on record and the pleadings put forth by the respective parties. 9. The formidable contention advanced by the learned counsel for the petitioner is based on Rule 198 of the Kerala Co-operative Societies Rules, 1969 [hereinafter called 'the Rules, 1969], which deals with disciplinary action. Sub-rule (6) deals with suspension of an employee pending enquiry into serious charges against such employee. It is stipulated thereunder that no employee shall, however, be kept under suspension for a period exceeding six months at a time. It is also stipulated that, in no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar. The stipulation ## **W.P.(C) No.19217 of 2017** 7 further states that an employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972. 10. The thrust of the contention advanced by learned counsel for the petitioner founded on sub-rule (6) of Rule 198, that petitioner cannot be placed under suspension continuously without issuing any memo of charges. It is also contended that, placing the petitioner under continuous suspension shows the _malafide_ act on the part of the respondents to decline promotion to the petitioner, since he is the sole qualified person to secure promotion. 11. Learned counsel has invited my attention to the judgment of the apex court in _**'Ajay Kumar Choudhary v. Union of India and Another'**_ [(2015) 7 SCC 291], where the practice of protracted period of suspension and repeated renewal thereof was deprecated. I have gone through the judgment and find that the same was rendered by the apex court after making an elaborate and extensive survey of the previous decisions rendered by the apex court in that regard. In paragraph 10 of the said judgment, the judgment of the apex court in _**'Union of India v. Dipak Mali**_ ' [(2010) 2 SCC 8 **W.P.(C) No.19217 of 2017** 222] was taken into account, and held that the same will not come to the rescue of the appellant since the inspection of the records produced in original have established that firstly, the decision to continue the suspension was carried out within the then prevailing period, and secondly, that it was duly supported by elaborate reasoning. Likewise rule 198(6) of the Rules, 1969, has definite modalities with respect to suspension and its continuation. Therefore, the principles of law laid down by the Apex Court in _**Ajay Kumar Choudhary** supra_ has no much bearing to the fact situation of the case on hand. 12. However, it is held in paragraph 11 therein that, suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration, and if it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. It is also held that, departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the memorandum of charges, and eventually culminate even after longer delay. 9 **W.P.(C) No.19217 of 2017** 13. It is true, the apex court has deprecated the practice of continuing the suspension without issuing charge memo and finalizing the enquiry proceedings, however, from the facts, what I could gather is that, while determining any undue delay occurred, one must have regard to all the attendant circumstances including the nature of offence, number of accused and witnesses, the workload etc. etc. 14. Therefore, in my considered opinion, the interference with a suspension order is largely dependent on facts and circumstances of each and every case. The fact discussion made above would make it clear that there is a clear allegation made against the petitioner with respect to misusing the leave availed for securing employment abroad. Even though petitioner has a contention that he has secured the higher qualification of Company Secretaryship, and even though the respondents have a contention that petitioner has not secured the higher qualification, petitioner has not cared to produce any reliable documents to establish that petitioner utilized the LWA for the purpose of higher studies, on the basis of which the leave was granted to him. If the petitioner has a definite case that, petitioner, in accordance with the leave **W.P.(C) No.19217 of 2017** 10 acquired, has prosecuted the studies as is sought for in the request made for leave, he ought to have produced the certificate. Moreover, a case is projected by the respondents to the effect that petitioner during the period of leave worked abroad for better financial prospects and misused the leave. Petitioner could have atleast produced the Passport before this Court in order to enable this Court to identify the real issue existing. Petitioner has not cared to do so also. So also, petitioner has produced certain receipts of payment of fees, examination fee etc. but has not produced the certificate allegedly secured. From Ext.P13, I could also gather that the fee paid by the petitioner amounting to Rs.7,750/- is the Postal Tuition Fee for Intermediate, this speaks a long way. The production of fee receipt is not sufficient enough to establish that petitioner has acquired the qualification. Moreover, Subrule (6) of Rule 198 of the Rules 1969 only prohibits suspension for a period of six months at a time and securing prior approval of the Registrar is required only if an employee is kept under suspension for a continuous period exceeding one year. Anyhow, a charge memo is issued, evident from Ext.R6(c) produced along with the additional counter affidavit, **W.P.(C) No.19217 of 2017** 11 and also in the facts and circumstances of the case, there are no justifiable and convincing reasons to interfere with the suspension order. A direction to finalize the enquiry proceedings within a time frame would suffice the situation. However, petitioner has also projected a case that petitioner is not paid the subsistence allowance in spite of lapse of several months. Accordingly, I am of the considered opinion that the respondents are duty bound to do so, in view of the clear cut stipulation contained under sub-rule (6) of Rule 198 of Rules, 1969. 15. In that view of the matter, the reliefs sought for by the petitioner with respect to quashing the proceedings initiated against the petitioner and reinstatement etc. etc. are not sustainable, since I find that there is no arbitrariness, illegality or any other legal infirmity on the part of the respondents 4 to 6 in continuing the suspension. 16. However, there will be a direction to the respondents 4 to 6 to ensure that the subsistence allowance due to the petitioner in accordance with law is paid within two weeks from the date of receipt of a copy of this judgment. There will also be a further direction to finalize the enquiry 12 **W.P.(C) No.19217 of 2017** proceedings within four months from the date of receipt of a copy of this judgment. I also make it clear that the findings and observations made above shall not be treated as any expression of opinion on merits or rival interest of the parties. All the issues are left open to be agitated in the enquiry proceedings. The writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** St/03.08.2017