E.ABRAHAM v. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G) & OTHERS

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 8TH DAY OF JANUARY 2014/18TH POUSHA, 1935 ## **W.P.(C).No.32168 of 2013 (U)** --------------------------------------------------- ## PETITIONER:- --------------------- E.A.ABRAHAM, AGED 43 YEARS, S/O. LATE E.C. ABRAHAM, THEKKANAMALAYIL, KUNNAMTHANAM.P.O., THIRUVALLA - 689 581. BY ADVS.SRI.SHAJI P.CHALY SRI.S.GOPAKUMAR. ## RESPONDENTS:- ------------------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, PATHANAMTHITTA - 689 645. 2. THE ADMINISTRATOR, THIRUVALLA EAST CO-OPERATIVE BANK LTD., NO. 3260, H.O. ERAVIPEROOR, THIRUVALLA - 689 101. 3. THE THIRUVALLA EAST CO-OERATIVE BANK LTD. NO. 3260, H.O. ERAVIPEROOR, THIRUVALLA, REP. BY ITS GENERAL MANAGER, PIN - 689 101. 4. THE MANAGING COMMITTEE, THE THIRUVALLA EAST CO-OPERATIVE BANK LTD. NO. 3260, H.O. ERAVIPEROOR, THIRUVALLA - 689 101, REP. BY ITS PRESIDENT. R1 & R2 BY GOVERNMENT PLEADER SMT.K.T.LILLY. R3 & R4 BY SENIOR ADVOCATE SRI.P.RAVINDRAN & ADV.SRI.SREEDHAR RAVINDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.32168 of 2013 (U) --------------------------------------- ## **APPENDIX** ## PETITIONER'S EXHIBITS:- ------------------------------------EXT.P1. TRUE COPY OF THE CHARGE SHEET DATED 2-8-06 ISSUED TO THE PETITIONER. EXT.P2. TRUE COPY OF THE COMMON JUDGMENT DATGED 29-7-2013 IN OP(C).NO.2058/2011 & WP(C).NO.15295/2011 OF THIS HONOURABLE COURT. EXT.P3. TRUE COPY OF THE COVERING LETTER DATED 11-10-2013 ISSUED BY THE 3RD RESPONDENT. EXT.P4. TRUE COPY OF THE PRELIMINARY OBJECTION FILED BY THE PETITIONER. EXT.P5. TRUE COPY OF THE NOTICE DATED 15-12-13 ISSUED BY THE 3RD RESPONDENT. ## RESPONDENTS' EXHIBITS:- --------------------------------------EXT.R3(a): TRUE COPY OF THE ORDER OF THE DIVISION BENCH IN W.A.NO.1444/13 DATED 26.09.2013. EXT.R3(b): TRUE COPY OF THE INTERIM APPLICATION WITHOUT EXHIBITS. vku/( true copy ) ## K.Vinod Chandran, J. ----------------------------------- ## W.P.(C).No.32168 of 2013-U ----------------------------------- Dated this, the 08[th] day of January, 2014 ## JUDGMENT The petitioner was a Senior Head Clerk of the 3[rd] respondent-Bank. Suffice it to say that the petitioner was proceeded against on charges levelled against him and after an enquiry conducted by an independent Enquiry Officer, the report, finding him guilty of the charges levelled, was accepted by the Managing Committee and he was imposed with the punishment of dismissal from service. The petitioner unsuccessfully challenged the decision of the Managing Committee before the Appellate Board. However, the Co-operative Arbitration Court reversed the order of dismissal and directed reinstatement, which was unsuccessfully challenged by the respondent-Bank before the Co-operative Tribunal. The petitioner filed Writ Petition and the respondent-Bank filed Original Petition before this Court, respectively for implementation of the award and assailing the order passed by the Tribunal. A common judgment was passed, as is evident in Exhibit P2. - 2 - WP(C).No.32168 of 2013-U 2. The Bank's Original Petition was partly allowed, finding irregularities in the manner in which the punishment was imposed and the management-Bank was directed to supply a copy of the enquiry report and commence the proceedings afresh from that stage. The Writ Petition filed by the petitioner was also partly allowed, directing reinstatement with 50% backwages. It is admitted by both counsel that the order of reinstatement with 50% backwages, of the learned Single Judge of this Court, is pending in W.A.No.1444 of 2013 and has been stayed. It is also admitted that the petitioner had filed a Special Leave Petition against the judgment passed in the Original Petition of the respondent-Bank under Article 227 of the Constitution; which stands dismissed. 3. In the aforesaid circumstance, the Bank proceeded with the enquiry from the stage of receipt of the enquiry report. A copy of the enquiry report was supplied to the petitioner by way of Exhibit P3 and he was called upon to file objections with respect to the enquiry report within 10 days of the receipt of Exhibit P3. Detailed objections were made by Exhibit P4. The same was considered and an order passed, by Exhibit P5. It is WP(C).No.32168 of 2013-U - 3 - trite that this Court, under Article 226, would not go into the legality of the order passed by the Managing Committee as is evident in Exhibit P5; especially since alternate remedies are provided in the Kerala Co-operative Societies Act, 1969 (for brevity “the Act”) and the Rules framed thereunder. What has to be looked into is the procedural irregularity and that is the contention raised by the petitioner against Exhibit P5. 4. Exhibit P5, according to the petitioner, is unsustainable for reason only of no opportunity for personal hearing having been granted to the petitioner. The petitioner relies on Rule 198(2) of the Kerala Co-operative Societies Rules, 1969 (for short “the Rules”) to contend that it is a mandate that the Disciplinary Authority affords an opportunity for personal hearing before a punishment is imposed and Exhibit P5 has found him guilty of the charges without affording such an opportunity. 5. The learned Senior Counsel appearing for the respondent-Bank, however, counters the said arguments and contends that what is contemplated is only an opportunity to file objections against the enquiry report, which has been granted by Exhibit P3. Rule 198(2) contemplates personal hearing at the time - 4 - WP(C).No.32168 of 2013-U of decision taken on the punishment to be awarded and that has been afforded as per Exhibit P5, is the contention. 6. Though the learned counsel would contend that Exhibit P5 does not at all consider the objections and that on a reading of the objections it would be crystal clear that the petitioner was victimized and that there was absolutely no evidence to find him guilty of the charges levelled against him, as has been noticed above, this Court, under Article 226, would not go into the factual findings entered into either in the enquiry report or in the order of the Managing Committee, especially for fear of pre-empting the statutory authorities. But then, necessarily the contention regarding the procedural irregularity has to be considered, which, according to the petitioner, is the violation of the mandate for a personal hearing. 7. The principles with respect to the opportunity to be granted to a delinquent employee when disciplinary proceedings have been initiated are succinctly stated in **Managing Director, ECIL v. B. Karunakar [(1993) 4 SCC 727].** Explaining the decision of the Supreme Court in **Union of India v. Mohd. Ramzan Khan [(1991) 1 SCC 588],** which was rendered in the WP(C).No.32168 of 2013-U - 5 - wake of the 42[nd] Amendment, the Hon'ble Supreme Court was considering the issue as to whether the 42[nd] Amendment took away the opportunity available to an employee for supply of enquiry report and consideration of the objections against the enquiry report as also an opportunity to represent against the punishment to be imposed. **B.Karunakar** (supra) found that earlier to the 42[nd] Amendment though there were two stage opportunity to the delinquent employee to represent against the enquiry report to prove his innocence as also to represent against the punishment proposed; the right to prove innocence before the Disciplinary Authority was always deferred to be exercised along with his right to show cause as to why no penalty or lesser penalty should be awarded. Hence, though in fact earlier to the 42[nd] Amendment there was only one opportunity granted to the delinquent employee to make representation, there was, in legal contemplation two stages of such opportunity. By the 42[nd] Amendment, the 2[nd] stage of enquiry, viz., enquiry into the nature of penalty, was abolished; but that does not in any way take away the opportunity of the delinquent to make representation against the supply of enquiry report. It is that opportunity or rather the - 6 - WP(C).No.32168 of 2013-U illegality or irregularity in not affording an opportunity for **personal hearing** that is projected in the instant case. 8. The petitioner does not have a case that an opportunity was not granted to him; but, the specific contention is that an opportunity for personal hearing was not granted. Dilating on the opportunity, **B.Karunakar** (supra) held so in paragraph 30 [iv] (at page 757): “In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in _Mohd. Ramzan case_ should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have - 7 - WP(C).No.32168 of 2013-U the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him. Hence question [iv] is answered accordingly”. A reading of the above paragraph which dealt with the opportunity contemplated with respect to representing against the enquiry report for proving innocence as such, this Court cannot read a mandate that the opportunity mandated or contemplated, an opportunity for personal hearing. However, though as noticed above, the 42[nd] Amendment abolished the 2[nd] stage; Rule 198(2) of the Rules makes a statutory compulsion in so far as providing an opportunity for personal hearing before the awarding of a punishment, in the case of Co-operative Societies. That, however, has been complied with in Exhibit P5, wherein the petitioner has been directed to appear in person before the Disciplinary Committee on 28.12.2013 for a personal hearing. 9. On the findings rendered above, this Court can only conclude that the writ petition filed on the ground of absence of opportunity for personal hearing is devoid of merit and the same stands dismissed. However, since there was a stay of Exhibit P5 WP(C).No.32168 of 2013-U - 8 - granted by this Court in the above writ petition, there shall be a direction to the Disciplinary Committee to issue a fresh notice providing an opportunity for personal hearing as has been contemplated in Exhibit P5, with respect to the punishment to be imposed, within a period of two weeks from today. It is made clear that this Court has considered only the procedural irregularity raised by the petitioner and has not at all touched upon the merit of Exhibit P5 order, which the petitioner is entitled to challenge in appropriate statutory proceedings. The writ petition is dismissed, leaving the parties to suffer their respective costs. vku/ Sd/K.Vinod Chandran, Judge. ( true copy)