G. Krishna Kumari 'Akshaya' v Muthukulam Service Co-Operative Bank Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 14TH DAY OF JULY 2020 / 23RD ASHADHA, 1942** ## **WP(C).No.720 OF 2016(L)** **AGAINST THE JUDGMENT DT. 17.11.2015 IN APPEAL NO.30/2014 OF THE KERALA CO-OP. TRIBUNAL, THIRUVANANTHAPURAM** **-----** ## **PETITIONER:** **G KRISHNA KUMARI, AKSHAYA, MUTHUKULAM SOUTH P.O, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.P.N.MOHANAN SRI.C.P.SABARI** ## **RESPONDENTS:** **1 MUTHUKULAM SERVICE CO-OPERATIVE BANK LTD. NO.731, REPRESENTED BY SECRETARY, MUTHUKULAM SOUTH 690 506, ALAPPUZHA DISTRICT. 2 THE MANAGING COMMITTEE OF MUTHUKULAM SERVICE COOPERATIVE BANK LTD NO. 731, REPRESENTED BY PRESIDENT, MUTHUKULAM SOUTH-690 506, ALAPPUZHA DISTRICT.** **R1 BY ADV. SRI.V.G.ARUN R1 BY ADV. SRI.T.R.HARIKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-07-2020, ALONG WITH WP(C).5627/2016(C), THE COURT ON 14-07-2020 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 14TH DAY OF JULY 2020 / 23RD ASHADHA, 1942** ## **WP(C).No.5627 OF 2016** **AGAINST THE JUDGMENT DT. 17.11.2015 IN APPEAL NO.30/2014 OF THE KERALA CO-OP. TRIBUNAL, THIRUVANANTHAPURAM** ## **-----** ## **PETITIONERS:** **1 THE MUTHUKULAM SERVICE CO-OPERATIVE BANK LTD. NO.731, REPRESENTED BY ITS SECRETARY, MUTHUKULAM SOUTH.P.O., ALAPPUZHA, PIN-690 506. 2 THE BOARD OF DIRECTORS OF THE MUTHUKULAM SERVICE COOPERATIVE BANK LTD.NO.731, REPRESENTED BY ITS PRESIDENT, MUTHUKULAM SOUTH.P.O., ALAPPUZHA, PIN-690 506. BY ADV. SRI.T.R.HARIKUMAR** ## **RESPONDENTS:** **1 G. KRISHNA KUMARI 'AKSHAYA', MUTHUKULAM SOUTH.P.O., ALAPPUZHA, PIN-690 506. 2 THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM-695 001. 3 THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM-695 001. R1 BY ADV. SRI.P.N.MOHANAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-07-2020, ALONG WITH WP(C).720/2016(L), THE COURT ON 14-07-2020 DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W. P. (C) Nos.720 & 5627 of 2016 = = = = = = = = = = = = = = = = = = Dated this the 14[th] day of July, 2020** ## **JUDGMENT** W.P.(C) Nos.720 of 2016 and 5627 of 2016 are by the employee and the employer-society respectively. The challenge in these writ petitions relate to a disciplinary proceeding. 2. On 04.08.2009, the petitioner while working as a Assistant Secretary in the employer Bank, was suspended from service alleging misappropriation. Pursuant to a disciplinary proceeding, the petitioner was dismissed from service on 11.05.2011. The appeal preferred by the petitioner in terms of Rule 198(4) of the Kerala Co-operative Societies Rules before the Appeal Committee, was dismissed. The petitioner approached the Cooperative Arbitration Court in ARC 4/2012. The Arbitration Court set aside the dismissal order and directed reinstatement of the petitioner with full back wages. Aggrieved, the employer filed an appeal before the Co-operative Tribunal challenging the W. P. (C) Nos.720 & 5627 of 2016 :- 2 :- award of the Arbitration Court. The Tribunal partly allowed the appeal on the following terms:- _“a) A.R.C. partly decreed and the dismissal order of Plaintiff/Respondent from the service of Defendant/Appellant by the disciplinary subcommittee dated 11.05.2011 and the order of Board of Management dismissing the statutory Appeal under Rule 198(4) of Kerala Co-operative Societies Rules dated 18.11.2011 confirming the order of disciplinary subcommittee are set aside._ _b) The prayer of Plaintiff/Respondent to direct the Appellant/Defendant to reinstate her in service with retrospective effect with full back wages, full service benefits and continuity of service not allowed._ _c) The Defendant/Appellant is allowed to conduct fresh disciplinary enquiry against the Respondent/Plaintiff on the basis of the charge as per law if they choose and law permits such an enquiry._ _d) The Plaintiff/Respondent is at liberty to claim the prayer for reinstatement and back wages as per law after the enquiry.”_ W. P. (C) Nos.720 & 5627 of 2016 :- 3 :- 3. The Tribunal while concurring with the Arbitration Court that the dismissal of the employee is bad, left open the right of the employer to conduct fresh disciplinary proceedings. The employee was permitted to seek for reinstatement and back wages depending on the outcome of such enquiry. It is against the above said directions that both the employee and the employer has approached this Court. 4. Heard learned counsel Sri.P.N.Mohanan on behalf of the employee and Sri.Arjun Raghavan on behalf of the employer. 5. The disciplinary proceeding in question was rightly interfered with by the Arbitration Court as well as by the Tribunal. As noticed by the said authorities, the proceeding suffer from various irregularities including, that the convener of the disciplinary Sub Committee was the witness for the management in the enquiry and also that the appeal committee lacked quorum. Apart from the above, as pointed out by the learned counsel for the employee, the very proceeding is bad for the reason W. P. (C) Nos.720 & 5627 of 2016 :- 4 :- that the memo of charges was issued by the disciplinary sub committee which is not the competent authority, as held by a Division Bench of this Court in _**Kodanchery Service Co-operative Bank Ltd v. Joshy Varghese 2020 (4) KLT 129**_ . The Division Bench held that the enquiry conducted on a charge issued by an incompetent authority is bad in law. At any rate, the interference with the disciplinary proceedings made by the authorities warrants no interference. 6. As regards the liberty given to initiate fresh proceedings and also with regard to reinstatement and back wages, it is to be noticed that, pending the writ petitions, the employee retired from the services of the employer on 31.05.2017. Therefore, question of initiating a fresh disciplinary proceeding against the employee does not arise. The employer, if aggrieved, is to move under Section 69 of the Co-operative Societies Act. 7. What remains is regarding the relief to be granted to the employee. The disciplinary W. P. (C) Nos.720 & 5627 of 2016 :- 5 :- proceedings having been found to be bad in law, and the employee having retired from the services, there is no reason why the pensionary benefits should be denied to the employee. As regards the back wages, no doubt, whether full back wages is to be granted or not depends on the facts of each case. In the case at hand, even while drawing the subsistence allowance as well as in the subsequent proceedings, it was the employee's case that she was not gainfully employed elsewhere. The same was not controverted by the employer at any point of time. Noticeably, even in WP(C) No.5627/2016 filed by the employer, there is no case that the employee was gainfully employed elsewhere during the period she was out of service. Incidentally it is also to be noticed that, along with the employee who was the Assistant Secretary, disciplinary proceedings were taken against the Secretary also. As per the bye-laws, Secretary is the person primarily responsible for cash and other valuables. However, on his retirement from service on superannuation, the disciplinary proceeding against him was dropped W. P. (C) Nos.720 & 5627 of 2016 :- 6 :- and all retirement benefits payable to him were released. No punishment was imposed on him. On the facts obtaining, I do not find any circumstance to deny the back wages or any part of it, to the employee. In the result, these writ petitions are disposed of with the following directions:- - (i) The order of the Tribunal setting aside the disciplinary proceedings against the employee, is affirmed. - (ii) The employee shall be entitled for entire back wages and all service and pensionary benefits during the period she was kept out of service. - (iii) The subsistence allowance paid is liable to be deducted from the amounts payable. - (iv) The back wages, as above, shall be paid within 2 months from today. **Sd/SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF WP(C) 720/2016** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 EXHIBIT P1. COPY OF THE SUSPENSION ORDER DATED 4.8.09 OF THE PETITIONER.** **EXHIBIT P2** - **EXHIBIT P2. COPY OF THE CHARGE MEMO NIL DATED.** - **EXHIBIT P3 EXHIBIT P3. COPY OF THE REPLY DATED 30.12.09 FILED BY THE PETITIONER.** - **EXHIBIT P4 EXHIBIT P4. COPY OF THE DETAILED STATEMENT OF THE AMOUNT DUE TO THE PETITIONER.** - **EXHIBIT P5 EXHIBIT P5. COPY OF THE ENQUIRY REPORT DATED 31.3.11 OF THE ENQUIRY OFFICER** - **EXHIBIT P6 EXHIBIT P6. COPY OF THE ORDER DATED 11.5.11 ALONG WITH THE RESOLUTION OF THE SUB COMMITTEE.** - **EXHIBIT P7 EXHIBIT P7. COPY OF THE ORDER DATD 18.11.11 OF THE APPEAL COMMITTEE.** - **EXHIBIT P8 EXHIBIT P8. COPY OF THE AWARD DATED 17.1.14 IN ARC 4/12.** - **EXHIBIT P9 EXHIBIT P9. COPY OF THE JUDGMENT DATED 17.11.15 IN APPEAL 30/14 OF THE CO-OPERATIVE TRIBUNAL.** ## **APPENDIX OF WP(C) 5627/2016** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 P1- A TRUE COPY OF THE ORDER OF SUSPENSION ISSUED TO THE 1ST RESPONDENT DATED 04.08.2009.** **EXHIBIT P2 P2- A TRUE COPY OF THE SUB COMMITTEE DECISION DATED 11.05.2011.** **EXHIBIT P3 P3- A TRUE COPY OF THE ORDER OF THE APPEAL COMMITTEE DATED 18.11.2011.** APPNENDIX-W. P. (C) Nos.720 & 5627 of 2016 -2- **EXHIBIT P4** **EXHIBIT P5** **P4- A TRUE COPY OF THE AWARD DATED 17.01.2014 IN ARC NO.4/2012. P5- A TRUE COPY OF THE JUDGMENT DATED 17.11.2015 IN APPEAL NO.30/2014.** ---------