ELDO POULOSE v. KODENCHERRY SERVICE SAHAKARANA BANK NO.F1762, THE MANAGING COMMITTEE OF THE KODENCHERRY SERVICE SAHAKARANA BANK NO.F1762, THE DISCIPLINARY ACTION SUB COMMITTEE OF THE KODENCHERRY SERVICE SAHAKARANA BANK NO.F1762, THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM, AND THE STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** ## **THURSDAY, THE 28TH DAY OF MAY 2020 / 7TH JYAISHTA, 1942** ## **WP(C).No.32805 OF 2019(A)** ## **PETITIONER:** **ELDO POULOSE, THEYYAMPURATH HOUSE, VELAMCODE P.O., THAMARASSERY (VIA), KOZHIKODE-673 580.** **BY ADV. SRI.P.P.JACOB** ## **RESPONDENTS:** - **1 THE KODENCHERRY SERVICE SAHAKARANA BANK NO.F1762 P.O.KODENCHERRY, KOZHIKODE-673 580, REPRESENTED BY ITS SECRETARY.** - **2 THE MANAGING COMMITTEE OF THE KODENCHERRY SERVICE SAHAKARANA BANK NO.F 1762, P.O.KODENCHERRY, KOZHIKODE-673 580, REPRESENTED BY ITS PRESIDENT.** - **3 THE DISCIPLINARY ACTION SUB COMMITTEE OF THE KODENCHERRY SERVICE SAHAKARANA BANK NO. F 1762, P.O.KODENCHERRY, KOZHIKODE-673 580, REPRESENTED BY ITS CHAIRMAN/CONVENER.** - **4 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM, PIN-695 001.** - **5 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, CO-OPERATIVE (C) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** **R1-3 BY ADV. SRI.B.S.SWATHY KUMAR R1-3 BY ADV. SMT.ANITHA RAVINDRAN R5 BY SR. GOVT. PLEADER SMT.SHEEJA C.S.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-05-2020, THE COURT ON 28-05-2020 DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W.P.(C) No.32805 of 2019 = = = = = = = = = = = = = = = = = = Dated this the 28[th] day of May, 2020** ## **JUDGMENT** Disciplinary proceedings were initiated against the petitioner while he was working as an Accountant in the first respondent Society, alleging financial irregularities. The petitioner was kept under suspension and was charge-sheeted. In the enquiry, he was found guilty and his services were terminated. He preferred an appeal before the Managing Committee which was dismissed. He made a request before the Labour Officer to intervene in the matter. Nothing turned thereon. The petitioner has approached this Court challenging the disciplinary proceedings and the punishment imposed, on the ground of “lack of jurisdiction with the disciplinary sub-committee to issue charge sheet”. 2. A counter affidavit has been filed by respondents 1 and 2 pointing out the proceedings before the Labour Officer. W.P.(C) No.32805 of 2019 :- 2 :- 3. Heard learned counsel Sri.P.P.Jacob for the petitioner, Sri.B.S.Swathi Kumar on behalf of respondents 1 to 3 and the learned Government Pleader on behalf of respondents 4 and 5. 4. The petitioner alleges infringement of Rule 198 of the Co-operative Societies Rules and the lack of jurisdiction of the disciplinary Sub Committee to issue the memo of charges. It is not in dispute that the memo of charges were issued by the disciplinary Sub-Committee, through its Chairman. During the same period the respondent society had initiated disciplinary proceedings against another employee on similar charges, wherein also the memo of charges was issued by the disciplinary sub-committe. The propriety of the same was challenged by him before this Court in W.P.(C) No.22228/2019. This Court held that the disciplinary sub-committee does not have the authority to issue charge memo and that the proceedings are without jurisdiction. The judgment was taken up in appeal, in W.A. 11 of 2020. Division Bench of this Court, upheld the judgment W.P.(C) No.32805 of 2019 :- 3 :- and held as follows:- _“The constitution of a disciplinary subcommittee_ _**pre-supposes** two things viz., a decision has been taken to initiate disciplinary proceedings against an employee or employees in respect of a misconduct and secondly, in pursuance of the said decision a memorandum of charges has been framed and issued.”_ 5. The Division Bench in the said judgment referred to the decisions of the Apex Court in _Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors (2003) 2 SCC 111_ and _Union of India and Ors. v. B.V.Gopinath (2014 (1) SCC 351)_ and concluded that a charge memo drawn by an officer other than specified authority is wholly without jurisdiction and vitiates the enquiry proceedings in its entirety; that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner, or not at all. It was held that the disciplinary sub-committee lacked jurisdiction to issue charge memo and accordingly W.P.(C) No.32805 of 2019 :- 4 :- declared the proceedings to be vitiated and lacking jurisdiction. 6. In view of the above, it can only be held that the issuance of memo of charges by the disciplinary sub-committe to the petitioner, was without jurisdiction. 7. Learned counsel Sri.Swathi Kumar appearing on behalf of the Society submitted that the petitioner having already opted to invoke the remedy available to him under the Industrial Disputes Act, cannot, approach this Court seeking to invoke the powers under Article 226 of the Constitution of India. To buttress the said contention, he would rely on Saji Varghese v. K. Mohammedkutty and Ors. (2009 (4) KHC 44); Mammoo v. Abdu (1990 (2) KLT 569); Reena R. P. v. R.S.Geena and Ors (2010 (2) KLT 155); and Kunjahammad Haji and Ors. v. State of Kerala and Ors (1960 KLT 930). 8. While it is true that the petitioner approached the Labour Officer for conciliation in terms of Section 2A of the Industrial Disputes Act, according to me, that need not, on the peculiar W.P.(C) No.32805 of 2019 :- 5 :- facts of this case, seal off the petitioner's right to approach this Court. Firstly, the factual and legal aspects arising in this writ petition is not in dispute viz. (a) the memo of charges was issued by the disciplinary Sub Committee; (b) it is for the Managing Committee to issue the charge memo. As noticed supra, the issue is already decided against the respondent-society in W.A 11 of 2020. Matters being so, it is not in the interests of the parties to relegate them to the alternate statutory remedy. Secondly, in terms of Section 2A of the Industrial Disputes Act if the request of the employee before the conciliation officer does not yield any result within a period of 45 days, he can approach the Labour Court or Tribunal for adjudication of the dispute. In terms of Section 2A(3) he has three years period from the date of dismissal, to approach the Labour Court as above. For the sake of convenience the Section is extracted hereunder, _“2A. Dismissal, etc., of an individual workman to be deemed_ _to be an industrial dispute.- (1) Where any employer_ W.P.(C) No.32805 of 2019 :- 6 :- _discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute._ _(2) Notwithstanding anything contained in section 10, any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such_ W.P.(C) No.32805 of 2019 :- 7 :- _adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government._ _(3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1)”_ The petitioner has not approached the labour Court for adjudication of the dispute. The three year period provided, to approach the Labour Court is not over. Both the remedies were available to him and he chose to approach this Court. I do not think that a stage has reached where, the issue raised in this writ petition is already seized by the Labour Court and the dispute is pending adjudication before that forum. At the risk of repetition, I again make mention of the fact that, in view of the judgment by Division Bench of this Court in W.A 11 of 2020, there is hardly anything left for adjudication regarding the competency of the disciplinary sub-committee to issue the charge W.P.(C) No.32805 of 2019 :- 8 :- memo. 9. The disciplinary proceedings in question having been conducted without jurisdiction, is liable to be interfered with and I do so. The impugned proceedings are set aside. However, it is made clear that the Managing Committee is at liberty to initiate the disciplinary proceedings afresh, in accordance with law. The respondents are directed to reinstate the petitioner in service or to pay full salary during the period of disciplinary proceedings if any they propose to initiate. Writ petition is allowed as above. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge **WP(C).No.32805 OF 2019(A)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE SUSPENSION ORDER ISSUED BY THE PRESIDENT OF THE SECOND RESPONDENT DATED 20.07.2017. EXHIBIT P2 TRUE PHOTOCOPY OF THE SHOW CAUSE NOTICE ISSUED BY THE THIRD RESPONDENT DATED 26.08.2017. EXHIBIT P3 TRUE PHOTOCOPY OF THE REPLY ISSUED BY THE PETITIONER TO THE THIRD RESPONDENT DATED 06.09.2017. EXHIBIT P4 TRUE PHOTOCOPY OF THE CHARGE SHEET MEMO ISSUED BY THE THIRD RESPONDENT DATED NOL. EXHIBIT P5 TRUE PHOTOCOPY OF THE REPLY TO THE CHARGE SHEET MEMO ISSUED BY THE PETITIONER TO THE THIRD RESPONDENT DATED 23.10.2017. EXHIBIT P6 TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE DOMESTIC ENQUIRY OFFICER DATED 11.11.2017 DATED. EXHIBIT P7 TRUE PHOTOCOPY OF THE TERMINATION ORDER ISSUED BY THE THIRD RESPONDENT DATED 22.09.2018. EXHIBIT P8 TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT DATED 17.06.2019. EXHIBIT P9 TRUE PHOTOCOPY OF THE JUDGMENT IN WP(C) 22228/2019 DATED 21.11.2019. RESPONDENT'S/S EXHIBITS: EXHIBIT R1 A TRUE COPY OF THE COVERING LETTER NO. A-30/2020 DATED 13/01/2020. EXHIBIT R1 B TRUE COPY OF THE CERTIFICATE NO.IR(2) 2896/2019 DATED 11/11/2019.** **-----**