High Court of KeralaSingle Judge2019-07-24Writ petition dismissed as premature; liberty t...

Deepthi.V.R. v. Koliyoor Service Co-operative Society Ltd and others

Case / Petition Number:WPC 15418/19

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: DEVAN RAMACHANDRAN
Judgment Date: 2019-07-24
Court Decision / Holding: Writ petition dismissed as premature; the Court closed the petition without further orders, but with liberty to approach this Court again after the Arbitration Court completes its proceedings. The Court clarified it did not express a view on the validity of Ambika’s proposition and left such contentions open for future consideration.
Final Disposition: Writ petition dismissed as premature; liberty to approach after arbitration concludes

Parties to the Case

Appellants / Petitioners

Deepthi.V.R.

Respondents

Co-operative Arbitration Court (Southern), represented by its Presiding Officer/Arbitrator, Kaithamukku Petta Road, Nalumukku, Pazhavangadi, Thiruvananthapuram-695024
Koliyoor Service Co-operative Society Ltd., No.2665, Koliyoor, Muttakadu P.O., Thiruvananthapuram District
Part-Time Administrator/The Manacaud Unit Inspector, Office of the Assistant Registrar of Co-operative Societies (General), Oottukuzhi, Thiruvananthapuram-695001

Legal Representation & Advocates

Counsels for Petitioners

• Sri.R.T.Pradeep
• Smt.M.Bindudas
• Sri.K.C.Harish

Counsels for Respondents

• Sri.K.Ramkumar (Sr.)
• Sri.T.Ramprasad Unni
• Smt.R.S.Aswini Sankar
• Sri.S.M.Prashanth
• Smt.C.S.Sheewa
• Senior Government Pleader

Case Synopsis & Summary

The petitioner, Deepthi V.R., was Secretary of the 2nd respondent Co-operative Society and was dismissed after a disciplinary enquiry. She challenged the action by filing statutory appeals and then approached the Arbitration Court, with the matter ultimately pending before that forum. She previously moved this Court in WP(C) No. 16769/2012, which was disposed of with directions to the Arbitration Court to decide the appeal within a timeframe. By the time the Arbitration Court could take up the matter, a Division Bench of this Court in Ambika v. Kottappady Service Co-operative Bank Ltd (2018) 3 KLT 779 held that the Arbitration Court does not have power to order reinstatement of a dismissed employee, which she argued rendered the arbitration proceedings incapable of prosecution because reinstatement was her prayer in those proceedings. She therefore sought a declaration on the merits of the disciplinary action and reinstatement from this Court. The respondent urged that the petition is premature since arbitration has not concluded, and that reinstatement or compensation would only arise if the Arbitration Court finds the charges unfounded or otherwise exonerates her. The learned Judge observed that guilt or innocence is to be determined by arbitration, and it would be improper to decide the merits under Article 226 at this stage. Ambika was described as per-incuriam, and the petition was dismissed without further orders, with liberty to approach after arbitration concludes; the court clarified it had not ruled on Ambika’s validity and left it for future consideration.

Provisions of Law Cited

Article 226 of the Constitution of India

Legal Doctrines & Maxims

per-incuriam

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that after the disciplinary action and the ensuing arbitration, she still seeks reinstatement and urges the Court to consider the validity of the disciplinary action on its merits. She relies on Ambika v. Kottappady Service Co-operative Bank Ltd to argue that the Arbitration Court’s lack of power to reinstate should not bar judicial scrutiny under Article 226. She argues that dismissing her petition would effectively bar a remedy she seeks by challenging the validity of the charges.

Contentions of Respondents

The respondents contend that the petition is premature as arbitration has not culminated; reinstatement or compensation can follow only if the Arbitration Court exonerates her; if findings are against her, there is no reinstatement. They argue that bypassing arbitration by a writ petition is improper, and Ambika’s reasoning should not bind the Court at this stage.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ambika v. Kottappady Service Co-operative Bank Ltd	2018(3) KLT 779	Overruled	The Court criticizes Ambika as per-incuriam and indicates its findings would not bind the Arbitration Court; Ambika’s reasoning is not treated as binding in this case.
K.A. Annamma v. Cochin Coop Hospital Society Ltd	2018(2) SCC 729	Mentioned Only	The decision notes affirmative directions in K.A.Annamma but does not apply them to bind the present case; Ambika did not consider those directions.
W.A.No.1969/2014 (in W.P.(C) No.16769/2012)	—	Mentioned Only	Appellate judgment cited as background; referenced but not treated as controlling in the present decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 24TH DAY OF JULY 2019 / 2ND SRAVANA, 1941** ## **WP(C).No.15418 of 2019** ## **PETITIONER/S:** **DEEPTHI.V.R., AGED 48 YEARS D/O.VIJAYABHAI AMMA, CHAITHANYA, CHAVADYANADA, VENGANOOR P.O., THIRUVANANTHAPURAM- 695523.** - **BY ADVS. SRI.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH** - **:** - **1 CO-OPERATIVE ARBITRATION COURT(SOUTHERN), REPRESENTED BY ITS PRESIDING OFFICER/ARBITRATOR, KAITHAMUKKU PETTA ROAD, NALUMUKKU, PAZHAVANGADI, THIRUVANANTHAPURAM- 695024.** - **2 KOLIYOOR SERVICE CO-OPERATIVE SOCIETY LTD.NO.2665, KOLIYOOR, MUTTAKADU P.O, PIN- 695523, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY ITS SECRETARY.** - **3 PART-TIME ADMINISTRATOR/THE MANACAUD UNIT INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OOTTUKUZHI, THIRUVANANTHAPURAM- 695001.** ## **RESPONDENT/S:** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.R.S.ASWINI SANKAR SRI.S.M.PRASANTH SMT.C.S.SHEEJA,SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 15418/19 2 ## **JUDGMENT** The petitioner alleges that while she was working as the Secretary in the services of the 2[nd] respondent-Co-operative Society, she was proceeded under a disciplinary enquiry and found guilty leading to her dismissal from service. She submits that she, therefore, preferred statutory appeals before the competent Authorities and that the proceedings are now finally before the Arbitration Court. 2. The petitioner says that after so invoking the jurisdiction of the Arbitration Court, she approached this Court by filing WP(C)No.16769/2012, which was disposed of by this Court directing the said Court to dispose of the appeal within a time frame; but that by the time the Arbitration Court could take up the matter for consideration, a learned Division Bench of this Court delivered judgment in **Ambika v. Kottappady Service Co-operative Bank Ltd [2018(3) KLT 779]** declaring that the WPC 15418/19 3 Arbitration Court does not have power to order reinstatement of a dismissed employee and therefore, that the Arbitration request now pending before the said Court has become incapable of prosecution since she has only prayed for reinstatement in the said proceedings. She, therefore, prays that this Court consider the validity of the disciplinary action against her on its merits and reinstate her in service forthwith. 3. In response to the afore submissions of Sri.R.T.Pradeep-learned counsel for the petitioner, Sri.K.Ramkumar, learned Senior Counsel, assisted by Sri.S.M.Prasanth, learned counsel for the 2[nd] respondent-Society, submits that this Writ Petition is premature because the proceedings before the Arbitration Court is yet to be completed. The learned Senior Counsel submits that it is only if the petitioner is exonerated of the charges by the Arbitration Court, will the question of resultant WPC 15418/19 4 directions become necessary or relevant. He reiteratingly says that if the Arbitration Court finds that the petitioner is guilty of the charges, then there is no question of either reinstatement or compensation; and therefore, that the petitioner's attempt to bypass these processes, by filing this Writ Petition, is confutative. He, therefore, prays that this Writ Petition be dismissed. 4. I find some force in the submissions of Sri.K.Ramkumar, learned Senior Counsel, since as matters now stand, there is no affirmative finding as to the guilt or otherwise of the petitioner. Whether the petitioner is guilty or innocent of the charges levelled against her are issues that will have to be necessarily decided by the Arbitration Court and it is impossible for this Court do so in a proceeding under Article 226 of the Constitution of India. 5. When I say this, I am fully conscious of the submissions of Sri.R.T.Pradeep that WPC 15418/19 5 **Ambika** ( _supra_ ) is per-incurium since it has not considered the affirmative directions of the Hon'ble Supreme Court in **K.A.Annamma v. Cochin Coop Hospital Society Ltd [2018(2) SCC 729]** and that if the learned Bench had done so, then the judgment would not have been delivered. In effect, the attempt of Sri.R.T.Pradeep is to cause a declaration to be made by this Court that **Ambika** (supra) is per-incurium and consequently that the declarations therein are not binding on the Arbitration Court. 6. I am afraid that the afore contention is not available to the petitioner to seek at this stage, particularly, as I have already said above, the proceedings before the Arbitration Court has still not completed as to her guilt or otherwise. This is pertinent because even if I am, for any reason, to find in favour of the petitioner on her contention regarding **Ambika** ( _supra_ ), it will only be academic in nature because it will not be WPC 15418/19 **==> picture [6 x 8] intentionally omitted <==** possible for this Court to reinstate her or even to give her any other relief without a conclusive decision on the charges against her and her innocence or guilt, as the case may be. In the afore circumstances, accepting the contentions of Sri.K.Ramkumar, learned Senior Counsel that this Writ Petition is premature, I close it without any further orders; however, leaving liberty to the petitioner to approach this Court appropriately, if so required, after the proceedings before the Arbitration Court is completed. I clarify that I have not considered any of the contentions of the petitioner with respect to the validity of **Ambika** (supra) and that they are left open for her to pursue in future, if it becomes so warranted. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR ## **JUDGE** WPC 15418/19 7 ## APPENDIX PETITIONER'S/S EXHIBITS: |EXHIBIT P1|TRUE COPY OF THE ORDER DATED| |---|---| ||04.08.2015 BY WHICH PETITIONER WAS| ||SUSPENDED BY PRESIDENT OF THE BANK.| |EXHIBIT P2|TRUE COPY OF THE MEMO OF CHARGES| ||DATED 17.06.2015 ISSUED BY| ||CHAIRPERSON OF DISCIPLINARY| ||COMMITTEE.| |EXHIBIT P3|TRUE COPY OF THE STATEMENT OF| ||ALLEGATIONS DATED 17.06.2015.| |EXHIBIT P4|TRUE COPY OF THE EXPLANATION OF| ||PETITIONER DATED 15.07.2015 TO THE| ||MEMO OF CHARGES.| |EXHIBIT P5|TRUE COPY OF THE SECOND MEMO OF| ||CHARGES DATED 28.11.2015 BY THE| ||CHAIRMAN OF DISCIPLINARY COMMITTEE.| |EXHIBIT P6|TRUE COPY OF THE STATEMENT OF| ||ALLEGATIONS OF SECOND MEMO OF CHARGES| ||DATED 28.11.2015 BY THE CHAIRMAN OF| ||DISCIPLINARY COMMITTEE.| |EXHIBIT P7|TRUE COPY OF THE EXPLANATION DATED| ||21.12.2015 BY PETITIONER TO THE| ||SECOND MEMO OF CHARGES.| |EXHIBIT P8|TRUE COPY OF THE ORDER DATED| ||04.06.2016 OF CHAIRMAN OF| ||DISCIPLINARY COMMITTEE.| |EXHIBIT P9|TRUE COPY OF THE APPEAL DATED| ||27.06.2016 FILED BY PETITIONER BEFORE| ||THE ADMINISTRATE COMMITTEE.| |EXHIBIT P10|TRUE COPY OF THE ORDER DATED| ||17.03.2017 BY THE PART-TIME| ||ADMINISTRATOR BY WHICH THE APPEAL IS| ||RELEGATED TO BE CONSIDERED BY THE| ||ENSUING MANAGING COMMITTEE.| WPC 15418/19 8 |EXHIBIT P11|TRUE COPY OF THE ORDER DATED| |---|---| ||12.08.2017 BY THE 3RD RESPONDENT.| |EXHIBIT P12|TRUE COPY OF THE PLAINT NIL DATED IN| ||ARC NO.68/2017 BEFORE THE 1ST| ||RESPONDENT.| |EXHIBIT P13|TRUE COPY OF THE JUDGMENT DATED| ||14.08.2018 IN W.A.NO.1969/2014 IN| ||W.P.(C)NO.16769/2012.|