Jilson P T v. Joint Registrar of Co-operative Societies (General) and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 ``` ``` WP(C) NO. 21513 OF 2023 ``` ## **`PETITIONER/S:`** ``` JILSON P T AGED 45 YEARS S/O P T THOMAS, PANIKULANGARA HOUSE, ATTUPURAM,AYROOR P O, ERNAKULAM DISTRICT, PIN - 683579 BY ADVS. M.M.MONAYE M.PAUL VARGHESE ``` ## **`RESPONDENT/S:`** ``` 1THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),CIVIL STATION , KAKKANAD, ERNAKULAM DISTRICT-, PIN - 682030 2ASSISTANT REGISTRAR OF CO -OPERATIVE SOCIETIES OFFICE OF THE ASSISTANT REGISTRAR OF CO -OPERATIVE SOCIETIES, NORTH PARAVUR, PIN - 683513 3AYROOR SERVICE CO-OPERATIVE BANK LTD NO. 2237 REPRESENTED BY SECRETARY, AYROOR P.O, ERNAKULAM DISTRICT, PIN - 683579 4BOARD OF DIRECTORS AYROOR SERVICE CO-OPERATIVE BANK LTD NO.2237, AYROOR P.O, ERNAKULAM DISTRICT, REPRESENTED BY PRESIDENT., PIN - 683579 5PRESIDENT AYROOR SERVICE CO-OPERATIVE BANK LTD NO.2237, AYROOR P.O, ERNAKULAM DISTRICT, PIN - 683579 ``` ``` BY ADVS. P.N.MOHANAN C.P.SABARI(K/973/2010) AMRUTHA SURESH(K/000971/2016) GILROY ROZARIO(K/399/2021) ``` ``` GP SMT PRINCY XAVIER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 21513 OF 2023 2 ``` ## **BASANT BALAJI , J.** **-----------------------------W.P.(C) No.21513 of 2023 ----------------------------------Dated this the 15th day of February 2024** ## **JUDGMENT** The petitioner states that he is working as Senior Clerk in the Ayroor Service Co-operative Bank Ltd., No.2237, a Primary Agricultural Credit Society (for short, the bank). While so, he was served with Ext.P1, show cause notice dated 14.11.2022 issued by the Secretary of the bank, the 3rd respondent herein, for which, he has submitted Ext.P2 reply. Thereafter, the petitioner was placed under suspension as per Ext.P3 order dated 05.01.2023. The grievance of the petitioner is that Ext.P3 order was issued by the President of the bank, the 5th respondent herein, who has no authority or jurisdiction to pass such an order. It is in the said circumstances that the petitioner has approached this Court seeking to quash Ext.P3 and for a direction to the respondents to reinstate the petitioner in service. 2. A counter affidavit has been filed by the 3rd respondent wherein it is stated that since it is a disputed question of fact and as ``` WP(C) NO. 21513 OF 2023 3 ``` the petitioner has already a remedy under Section 69(2)(d) of the Kerala Co-operative Societies Act, this writ petition itself is not maintainable. It is contended that the petitioner while holding the post of Senior Clerk had committed various misconduct and dereliction of duty and, taking into consideration the gravity of offences, the managing committee in its meeting held on 4.1.2023 authorized the 5[th] respondent, the President of the bank to take appropriate action and accordingly, the petitioner was suspended from service on 05.1.2023. Ext.R3(a), the copy of the relevant portion of the minutes of the committee meeting held on 04.1.2023 and Ext.R3(b), the minutes of the meeting held on 25.1.2023 are also produced to substantiate the same. It is also stated in the counter affidavit that, as the reply filed by the petitioner was found unsatisfactory, a sub committee was constituted to make enquiry into the allegations. The said sub committee, after studying the reply, decided to appoint one Mr. K.N. Madhava Pai, Advocate of Perumbavoor Bar as enquiry officer and since the petitioner applied leave on medical grounds for 15 days, the enquiry was adjourned. 3. A reply affidavit has been filed by the petitioner controverting the averments made in the counter affidavit. It is ``` WP(C) NO. 21513 OF 2023 4 ``` stated in the reply affidavit that the petitioner filed a petition before the cooperative department and the unit inspector was directed to conduct an enquiry. The president who signed Ext.P3 suspension order had filed a statement to the unit inspector stating that he was forced to issue Ext.P3 by the managing committee. The said statement is produced as Ext.P7. The petitioner has, through I.A. No.1 of 2024 has filed an additional document, Ext.P10, wherein the learned Single Judge of this Court in W.P.(C) No.38056 of 2023 has quashed the charge memo issued to the petitioner. It was also made clear that it will be open to the respondents to continue with the disciplinary proceedings strictly in accordance with the provisions of the Act and Rules. 4. Heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondents. 5. The main question that arises for consideration is whether Ext.P3 issued by the President of the society is valid or not. 6. The learned counsel would rely on Sub-rule (6) of Rule 198 of the Kerala State Cooperative Societies Rules and argued that an authority competent to appoint an employee may suspend him ``` WP(C) NO. 21513 OF 2023 5 ``` pending enquiry into serious charges against such employee. No employee shall however be kept under suspension for a period exceeding six months at a time. In no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar. An employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972. Relying on Section 2(e) of the Kerala Cooperative Societies Act the learned counsel submits that a “Committee” means the governing body of a cooperative society by whatever name called, to which the management of the affairs of the society is entrusted. He would also rely on Rule 182(2) which states that the committee shall be the authority competent to appoint the employees in a cooperative society. The petitioner has also brought to the notice of this Court the bylaws of the society, in which Clause 42 deals with ‘Rights’ of the Society and Clause 16 says that any suspension or removal of any employee rests with the committee. Relying on the above, the learned counsel argues that the President is not the appointing authority and therefore, he is incompetent to suspend the petitioner. It is also contended that Rule 198(6) of the Rules specifically states ``` WP(C) NO. 21513 OF 2023 6 ``` that if the suspension of the employee is beyond the period of one year, prior permission of the Registrar is necessary. 7. In response, the learned counsel for the respondents submitted that, before the expiry of one year, the managing committee had already taken a decision to extend the term and requested the Registrar to give prior permission for extension of the suspension period, which is pending. It is also submitted that since the managing committee had already taken a decision and is awaiting orders from the Registrar, the suspension of the petitioner can be continued. 8. The next contention advanced by the learned counsel appearing for the petitioner is that when the charge memo itself is quashed by this Court by Ext.P10, the suspension order based on the charge memo also ends with that. It is also submitted that since the original charge has been quashed, he should be reinstated in service. 9. The learned counsel would rely on the decision of the learned Division Bench of this Court in **Mathew Joseph vs. Registrar of Co-Operative Societies** [2022 KHC 5602] wherein it was held that the suspension order cannot exist independent of the ``` WP(C) NO. 21513 OF 2023 7 ``` charge memo, whether issued simultaneously or within reasonable time thereafter. On the charge memo being set aside by a competent forum, the suspension order that is dependent on it also ceases to have force in law. 10. In that view of the matter, when the charge memo was quashed by this Court as per Ext.P10, the suspension order, Ext.P3, ceased to operate on that date i.e., on 14.12.2023. 11. With regard to the next contention that the President is not the appointing authority and is incompetent to issue Ext.P3 order, the bye laws of the society itself states that the managing committee is the authorized person to take action on the suspension as well as termination and also going by Rule 182(2) of the Rules the managing committee is the appointing authority. There is no delegation of powers on the President. 12. A reading of Ext.P3 would show that the 5th respondent, the President of the bank, has issued Ext.P3 order suspending the petitioner on the ground that he is the sole authority and by invoking his powers as the appointing authority. When the President has no authority to appoint the petitioner he has no right or authority to ``` WP(C) NO. 21513 OF 2023 8 ``` suspend the petitioner. On these grounds Ext.P3 does not stand in the eye of law. 13. Ext.P3 will stand quashed. There will be a direction to the respondents to reinstate the petitioner in service forthwith. It is also made clear that this Court has granted liberty through Ext.P10 to continue with the disciplinary proceedings strictly in accordance with the Act and Rules, the managing committee of the bank is free to proceed in accordance with law. Since Ext.P3 suspension order is not legally tenable and the petitioner has already been issued with subsistence allowances for the period under suspension, he is entitled for the salary less the subsistence allowance already granted to him. Necessary orders shall be passed in this regard within a period of six weeks from the date of receipt of a copy of this judgment. Writ petition is disposed of. Sd/- NS **BASANT BALAJI , JUDGE** ``` WP(C) NO. 21513 OF 2023 9 ``` ## **`APPENDIX OF WP(C) 21513/2023`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE SHOW CAUSE NOTICE DATED 14-11- 2022 ISSUED TO THE PETITIONER BY THE SECRETARY OF THE 3RD RESPONDENT SOCIETY Exhibit P2TRUE COPY OF THE REPLY DATED 22-11-2022 OF THE PETITIONER Exhibit P3TRUE COPY OF THE SUSPENSION ORDER ISSUED BY THE PRESIDENT OF THE SOCIETY DATED 05.01.2023 Exhibit P4TRUE COPY OF THE CHARGE MEMO ISSUED BY THE PRESIDENT AYROOR SERVICE CO-OPERATIVE BANK DATED 27.06.2023 Exhibit P5TRUE COPY OF THE NOTICE OF THE ENQUIRY OFFICER ISSUED TO THE PETITIONER DATED 17.08.2023 Exhibit P6TRUE COPY OF THE COMPLAINT FILED BY PRESIDENT,V.O .JOHNY. DATED 23.11.2022 Exhibit P7TRUE COPY OF THE STATEMENT OF V.O .JOHNY. DATED 7.10.2023 Exhibit P8TRUE COPY OF THE PETITION SEEKING INFORMATION DATED 27.06.2023 Exhibit P9TRUE COPY OF THE INFORMATION RECEIVED FROM PUBLIC INFORMATION OFFICER Exhibit P10TRUE COPY OF THE JUDGMENT IN WP(C) NO. 38056 OF 2023 DATED 14.12.2023 RESPONDENT EXHIBITS : EXHIBIT R3(a)TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE COMMITTEE MEETING DATED 04.01.2023 EXHIBIT R3 (b)TRUE COPY OF THE RELEVANT RESOLUTION OF THE MANAGING COMMITTEE APPROVING THE EXT.P3 SUSPENSION OF THE PETITIONER EXHIBIT R3 (c)TRUE COPY OF THE RELEVANT PORTION OF THE APPROVAL OF THE MEMO OF CHARGES IN THE MANAGING COMMITTEE MEETING HELD ON 26.06.2023 EXHIBIT R3(d)TRUE COPY OF THE MEMO OF CHARGES DATED 15.01.2024 ```