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 RAJA VIJAYARAGHAVAN V THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945 WP(C) NO. 38056 OF 2023`** ## **`PETITIONER/S:`** ``` JILSONP.T. AGED45YEARS S/OP.T.THOMAS,PANIKULANGARAHOUSE,ATTUPURAM,AYROORP.O, - ERNAKULAMDISTRICT,PIN683579. BYADVS. M.M.MONAYE M.PAULVARGHESE K.V.SANOSH ANJANASUGUNAN ``` ## **`RESPONDENTS:`** ``` 1JOINTREGISTRAROFCO-OPERATIVESOCIETIES(GENERAL) - CIVILSTATION,KAKKANAD,ERNAKULAMDISTRICT,PIN682030. 2AYROORSERVICECO-OPERATIVEBANKLTD.NO.2237, AYROORP.O,ERNAKULAMDISTRICTREPRESENTEDBYITS - SECRETARY,PIN683579. 3PRESIDENT AYROORSERVICECO-OPERATIVEBANKLTD.NO.2237,AYROORP.O, - ERNAKULAMDISTRICT,PIN683579. 4K.N.MADHAVAPAI ADVOCATE,(ENQUIRYOFFICER)SNDPBUILDING,OUSHADHI - JUNCTIONPERUMBAVOOR,ERNAKULAMDISTRICT,PIN683542. BYADVS. P.N.MOHANAN C.P.SABARI(K/973/2010) AMRUTHASURESH(K/000971/2016) GILROYROZARIO(K/399/2021) ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 14.12.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` ``` WP(C)NO.38056OF2023 ``` ``` 2 ``` ## **JUDGMENT** The petitioner, while working as a Senior Clerk in the Ayroor Service Co-operative Bank Ltd, was suspended from service pursuant to the initiation of disciplinary proceedings against him. The petitioner asserts that Ext.P1 charge memo issued by the President of the Society is in complete violation of the provisions of the Co-operative Societies Act and the Rules framed thereunder. According to the petitioner, the Rules insist that only the Managing Committee or the disciplinary Sub Committee has the authority to issue memo of charges against an employee like the petitioner herein as settled by this Court in 2023 (5)KLT 312 (Mattannur Co-Operative Rural Bank v Co Operative Arbitration Court. It is on these assertions that this writ petition is filed seeking the following reliefs:- - I. issue a writ of certiorari or any other writ, order or direction, calling for the records leading to Exts:P1 and quash the same. - II. declare that Ext: P1 charge memo is issued without jurisdiction and entire enquiry proceedings are vitiated. - III. issue a writ of mandamus or any other writ, order or direction, directing the 2nd respondent society to withdraw the Ext:P1 charge memo. - IV. dispense with the production of english translation of vernacular exhibits. V. Award the cost of this proceeding. 2. A counter affidavit has been filed by respondents 2 and 3. It is stated that the petitioner while working as Senior Clerk, has committed ``` WP(C)NO.38056OF2023 ``` ``` 3 ``` serious misconduct and dereliction of duty. Due to the urgency of the situation, the Managing Committee authorised the President of the Bank to initiate appropriate action on 4.01.2023. Subsequently, the petitioner was suspended from service on 5.1.2023. The suspension order was approved by the Managing Committee in its meeting, which was held on 25.1.2023. It is stated that thereafter, the Managing Committee, in its meeting held on 26.6.2023, approved and authorised the President of the Bank to issue the memo of charges to the petitioner, as is evident from Ext R2(a). It was in the said circumstances that the memo of charges has been issued by the President for and behalf of the Ayroor Service Co-operative Bank. According to the respondents, no prejudice would be caused to the petitioner for the reason that Exhibit P1 Memo of Charges was issued by the President of the Society. Even if another opportunity is granted, it would only be a meaningless exercise, and by adopting the “useless formality theory” the contentions raised by the petitioner are liable to be rejected. 3. Sri.M.M.Monaye, the learned counsel appearing for the petitioner, submitted that Ext.P1 memo of charges has been issued by the President of the Society as is discernible from Ext.P1. According to the learned counsel, it is settled by now that the memo of charges to the employees covered under Rule 198 of the Kerala Co-operative Societies Rules can be issued either by the Managing Committee or by the disciplinary ``` WP(C)NO.38056OF2023 ``` ``` 4 ``` sub-committee which has been constituted by the Managing Committee. It is submitted that since the charge memo has been issued by the officer who is incompetent, the whole disciplinary proceedings would be vitiated. The learned counsel would then refer to the byelaws of the Society and it is argued that as per Clause 41, the President and the Secretary are bound to affix their respective signature at the conclusion of the proceedings in the Minutes. It is submitted that the minutes produced by the respondents would disclose that the president has not signed on the same. Finally, reliance is placed on the law laid down in **Mattanur Co-operative Rural** **Bank v. Co–operative Arbitration Court** [2023 (5) KLT 312] to substantiate his contention. 4. In response, Sri. P.N. Mohanan, the learned counsel appearing for the respondent, would refer to Ext.R2(a), and it is submitted that a decision to issue memo of charges was taken in the Committee meeting held on 26.6.2023, and the President was authorised to issue the same. The charges were accordingly issued for and on behalf of the Society by the President. He would reiterate that the technical contentions raised by the petitioner is only to delay the proceedings and nothing more. The learned counsel submitted that the petitioner has been under suspension since 5.1.2023, and any delay in concluding the enquiry would seriously prejudice the respondents. ``` WP(C)NO.38056OF2023 ``` ``` 5 ``` ## 5. I have considered the submissions advanced and submissions made across the bar. 6. The records made available before this court would disclose that Ext.P1 memorandum of charges has been issued by the President of the Bank, for and on behalf of the bank. The respondents have placed on record Ext.R2(a), which is a copy of the Minutes of the meeting held on 26.06.2023. The relevant portion of the Minutes reads as under: ബാ�് ഭരണസമിതി�െട 26 /6 /2023 െല 6-ആം ന�ർ തീ�മാന�കാരംബാ�ിെലജീവന�ാര�ം 05 /01 /2023 �തൽ അേന�ഷണ വിേധയൻ ആയിസ�െപ�ഷനിൽ കഴി��സീനിയർ �ാർ�് �ീജിൻസൺ പി ടിെ�തിെരഅ�ട�നടപടികൾ സ�ീകരി�ാൻ തീ�മാനി�. ആയതിനാൽ ടി ' ' ജീവന�ാർ�് െമേ�ാറാ�ംഓഫ്ചാർജ് ന�ാൻ ബ�.ബാ�്�സിഡ�്െന �മതലെ���ിതീ�മാനി�. ആയ��കാരംതാെഴേചർ�ു� െമേ�ാറാ�ം ഓഫ്ചാർജ് േമൽ ജീവന�ാർ�് നൽകുവാൻ തീ�മാനി�. ആയത്�കാരംതാെഴ േചർ�ു� െമേ�ാറാ�ം ഓഫ് ചാർജ് േമൽ ജീവന�ാരന് നൽകുവാൻ . തീ�മാനി� െമേ�ാറാ�ംഓഫ് ചാർജ് �ീ. പി.ടി. ജിൽസൺ, സീനിയർ �ാർ�് (സ�െപ�ഷനിൽ) അയി�ർ സർവീസ് സഹകരണബാ�് (�ി�ം)ന�ർ 2237 പി.ഓ. അയി�ർ പിന് 683579 എ�യാൾ�് എതിെര��െമേ�ാറാ�ംഓഫ്ചാർജ് ## 7. A reading of the Minutes would disclose that the managing committee has decided to initiate disciplinary proceedings against the petitioner. It is stated therein that the President has been authorised to ``` WP(C)NO.38056OF2023 ``` ``` 6 ``` issue the memo of charges. It is in pursuance to the same that the President has issued Ext.P1 charges. In other words, the Managing Committee, instead of framing the memo of charges and authorizing the president to issue the same, has in the instant case, delegated the power to the President to frame the memo of charges and issue the same to the delinquent employee. It is in pursuance to the authorization given by the Managing Committee that the President has issued Ext.P1. A Full Bench of this Court in **Mattanur** (supra) has held that the Managing Committee (appointing authority) of a co-operative society and the disciplinary sub-committee envisaged in terms of sub-rule (2A) of Rule 198 of the KCS Rules, which is designated as the penalty authority will have the jurisdictional competence to issue memo of charges to delinquent employees. In that view of the matter, I am of the considered opinion that Ext.P1 is clearly vitiated and the same is liable to be quashed. 8. I am unable to accept the contention of the learned counsel appearing for the respondents that no purpose would be served in quashing Ext.P1 as it would be a meaningless exercise. The Apex Court in Union of India and Ors. v. B.V.Gopinath [(2014)1 SCC 351] has held that the charge memo issued by the Officer other than the specified authority would be wholly without jurisdiction and would vitiate the disciplinary proceedings. The respondents were bound to act strictly in terms of the provisions of the ``` WP(C)NO.38056OF2023 ``` ``` 7 ``` Rules. 9. In view of the discussion above, this petition will stand allowed. Ext.P1 will stand quashed. It is made clear that it would be open to the respondents to continue with the disciplinary proceedings strictly in accordance with the provisions of the Co-operative Societies Act and the Rules framed thereunder. ``` Sd/- ``` **RAJA VIJAYARAGHAVAN V JUDGE** ``` Sru ``` ``` WP(C)NO.38056OF2023 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 38056/2023`** ``` PETITIONER’SEXHIBITS ExhibitP1 ``` ``` THETRUECOPYOFTHEMEMOOFCHARGESDATED 27.06.2023OFTHEPRESIDENT. ``` ``` ExhibitP2 ``` ``` THETRUECOPYOFTHEREPLYTOTHECHARGES SUBMITTEDBYTHEPETITIONERDATED29.07.2023. ``` ``` ExhibitP3 ``` ``` THETRUECOPYOFTHEPETITIONFORDOCUMENTS SUBMITTEDBYTHEPETITIONERDATED17.08.2023. ``` ``` ExhibitP4THETRUECOPYOFTHENOTICEOFTHEENQUIRY OFFICERDATED17.8.2023. ``` ``` ExhibitP5THETRUECOPYOFTHEPETITIONBEFORETHE ENQUIRYOFFICERSUBMITTEDBYTHEPETITIONER DATED11.11.2023. ``` ``` RESPONDENTSEXHIBITS EXHIBITR2(a) ``` ``` TRUECOPYOFTHERELEVANTPORTIONOFTHE APPROVEDMEMOOFCHARGESINTHEMANAGING COMMITTEEMEETINGHELDON26.06.2023. ```