Jose Philip v. Thodupuzha Taluk Co-operative Rubber Marketing Society No. E.222 and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN WEDNESDAY, THE 4TH DAY OF JULY 2018 / 13TH ASHADHA, 1940 W.A.No.705 of 2016 IN WPC.No.31764 of 2013 AGAINST THE JUDGMENT IN WP(C).No.31764/2013 OF HIGH COURT OF KERALA DATED 01-03-2016 APPELLANT/3RD RESPONDENT: JOSE PHILIP, KALLARACKAL HOUSE, KURUMANNU P.O., PALAI, KOTTAYAM - 686 554. BY ADV.SRI.GEORGE POONTHOTTAM ADV.SRI.VISHNU B. KURUP RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 2: 1. THE THODUPUZHA TALUK CO-OPERATIVE RUBBER MARKETING SOCIETY NO. E.222, REPRESENTED BY ITS MANAGING DIRECTOR, P.J.EMMANUEL, S/O.JOSEPH, AGED 56, PADINJAREKKUDIYIL, THODUPUZHA EAST. 2. THE KERALA CO-OPERATIVE TRIBUNAL THIRUVANANTHAPURAM - 695 001. 3. THE CO-OPERATIVE ARBITRATION COURT THIRUVANANTHAPURAM - 695 001. R1 BY ADV. SRI.S.SREEKUMAR (SR.) R1 BY ADV. SRI.P.MARTIN JOSE R1 BY ADV. SRI.P.PRIJITH R1 BY ADV. SRI.THOMAS P.KURUVILLA R2 & R3 BY SENIOR GOVERNMENT PLEADER SMT. K.R. DEEPA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02-07-2018, THE COURT ON 04-07-2018 DELIVERED THE FOLLOWING: ## “CR” ## V. CHITAMBARESH & SATHISH NINAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = ## W.A.No.705 of 2016 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4[th] day of July, 2018 ## Judgment ## Chitambaresh, J. 1.The appellant while working as the Factory Manager of Corubber Crumb Factory run by the first respondent society was dismissed from service with effect from 27.2.1991 for 'self abandonment of job'. Ext.P6 order dated 10.6.1991 was issued to that effect by the President of the society based on Ext.P5 resolution dated 4.6.1991 of the managing committee of the society. Ext.P7 appeal dated 10.7.1991 of the appellant to the Board of Directors was dismissed by Ext.P8 order dated 16.10.1991 indicating that there was a charge of misappropriation as well. The appellant followed it up by filing O.P.No.12825/1991 on the file of this Court WA705/2016 -: 2 :- which was disposed of by Ext.P9 judgment dated 21.5.2003 and Ext.P10 order dated 17.12.2003 on review. The appellant was directed thereunder to move the Joint Registrar of Co-operative Societies to have the resolution of the managing committee rescinded. The motion made by the appellant was pending before the Joint Registrar pursuant to a remand by the Government when the proceedings were transferred to the Co-operative Arbitration Court. It was so done pursuant to Ext.P12 judgment dated 18.3.2008 in W.P(C).No.9219/2008 filed by the appellant in view of the constitution of the Co-operative Arbitration Court. 2.The Co-operative Arbitration Court by Ext.P14 award dated 7.8.2012 in A.R.C.No.117/2008 non-suited the appellant on the ground that he has abandoned his job and there is no ground to interfere in the order of dismissal. It was inter alia held as follows: WA705/2016 -: 3 :- “The observance of the procedure like framing of charge, conduct of enquiry, formation of subcommittee are not necessary in the facts and circumstances of this case. This is a clear case of abandonment by the plaintiff himself and the plaintiff is miserably failed to prove to the contrary.” The Kerala Co-operative Tribunal by Ext.P15 judgment dated 31.8.2013 in Appeal No.88/2012 set aside the order of dismissal of the appellant and directed the disbursement of all service benefits from 27.2.1991. It was inter alia held therein as follows: “When serious allegations as stated above are raised against an employee, the employer can pass order of dismissal only after following the procedure established by law i.e. defendant WA705/2016 -: 4 :- society had to be complied with rule under 198 of Kerala Co-operative Societies Rules. In the instant case, the defendant society has admitted that it had not framed any charge against the plaintiff, not conducted a domestic enquiry into the above said serious allegations levelled against the plaintiff and had not constituted a Disciplinary Sub Committee. Without following the above said legal procedures, the defendant is seen to have passed only a resolution dismissing the plaintiff from the service.” Thus both the authorities have concurrently found that the procedure contemplated under Rule 198 of the Kerala Cooperative Societies Rules, 1969 ['the Rules' for short] was not complied with preceding the order of dismissal. WA705/2016 -: 5 :- - 3.The learned single Judge by the impugned judgment dated 1.3.2016 allowed W.P(C).No.31764/2013 filed by the society setting aside Ext.P15 judgment of the Tribunal and restoring Ext.P14 award of the Arbitration Court. The learned single Judge in so doing observed as follows: - “27. Rule 198 of the Rules, of course indicates that the Managing Committee can conduct an enquiry into the matter. But in a case of a person abandoning service without any valid explanation, the law laid down by the Supreme Court in the cases referred above, especially the judgment in Viveka Nand Sethi's case (supra) is authority enough to indicate that a limited enquiry as to whether the employee concerned has sufficient explanation for not reporting for duty, after the period of leave had expired or failure on his part on being asked so to do WA705/2016 -: 6 :- amounts to sufficient compliance with the requirements of principles of natural justice.” The appellant challenges the judgment aforesaid contending inter alia that the disciplinary action envisaged under Rule 198 of the Rules could not have been dispensed with before the order of dismissal. 4.We heard Mr.Vishnu B. Kurup, Advocate representing Mr.George Poonthottam, Advocate for the appellant and Mr.S.Sreekumar, Senior Advocate on behalf of the society. 5.The relevant part of Rule 198 of the Rules is as under: “ 198. Disciplinary Action:- (1) Any member of the establishment of a Co-operative Society may, for good and sufficient reasons, be punished by imposing any of the following WA705/2016 -: 7 :- penalties, namely:- - (a) Censure; - (b) Fine (in the case of employees in the last grade); - (c) Withholding of increments with or - without cumulative effect; - (d) Withholding of promotion; (e) Recovery from pay of the whole or part of any pecuniary loss caused to the society, by negligences or breach of orders or otherwise; - (f) Reduction to a lower rank; - (g) Compulsory retirement; - (h) Dismissal from service. (2) No kind of punishment shall be awarded to an employee unless he has been informed in writing of the grounds on which it is proposed to take action against and he has WA705/2016 -: 8 :- been afforded an opportunity including a personal hearing to defend himself. Every order awarding punishment shall be communicated to the employee concerned in writing stating the grounds on which the punishment has been awarded. (2A) The committee of a society shall constitute a disciplinary sub-committee consisting of not more than three of its members, of whom one shall be designated as Chairman, but the President of the committee of the society shall not be a member in the disciplinary sub-committee. (2B) The disciplinary sub-committee so constituted shall inquire into the charges against the employee either by themselves or by engaging an external agency.” (emphasis supplied) WA705/2016 -: 9 :- The word 'shall' appearing in sub-rules (2), (2A) and (2B) of Rule 198 of the Rules implies that it is mandatory to conform to the procedure before imposing the penalty of 'dismissal from service' of any member of the establishment. Any exchange of notices without informing the employee in writing of the grounds on which action is proposed to be taken or without affording him an opportunity to defend is not a substitute. Similar is the necessity to constitute a disciplinary sub-committee who of course can enquire into the charges against the employee by themselves or by engaging an external agency. All the procedure aforestated should precede Ext.P6 order of 'dismissal from service' which in the instant case was concededly not done rendering the proceedings nonest in law. 6.The learned single Judge was swayed by the fact that the WA705/2016 ## -: 10 :- appellant was earlier served with Ext.P2 show cause notice dated 8.2.1991 and Ext.P4 notice dated 18.5.1991 issued on behalf of the society. It was further noted that the appellant did not report for duty within the period of eight days stipulated in Ext.P4 notice which exhibited his conduct of abandonment from service. May be these are valid points to be taken note of by the disciplinary sub-committee had it been constituted under Rule 198 of the Rules and not one to be noticed de hors a disciplinary enquiry. The decision in Viveka Nand Sethi v. Chairman, J & K Bank Ltd. [(2005) 5 SCC 337] relied on by the learned single Judge is rested on a bipartite settlement between the parties. The said bipartite settlement obliges the management to issue a notice calling upon the employee to report for duty and it is for the employee to turn up or offer his explanation. The failure to do so would attract the legal fiction of 'abandonment from service' as per the bipartite settlement which in the instant case is wholly absent. There was no justification to draw a WA705/2016 -: 11 :- parallel from Viveka Nand Sethi's case (supra) to hold that Ext.P4 notice dispenses with a disciplinary enquiry as contemplated under Rule 198 of the Rules. 7.We are fortified in this conclusion by the decision in Chamoli - District Co operative Bank Ltd. v. Raghunath Singh Rana and others [AIR 2016 SC 2510] which arose under the U.P.Co-operative Societies Act, 1966. It was held that an order of dismissal issued without holding an enquiry under the statutory Regulations is liable to be interdicted for violation of mandatory procedure. The appellant has a case that he suffered a Myocardial Infarction on 9.11.1990 and had put in Ext.P1 application dated 1.12.1990 for leave initially for a period of three months. The appellant had also produced medical discharge notes and examination reports along with Ext.P3 reply dated 21.12.1991 to Ext.P2 show cause notice to avert disciplinary action. Whether the absence from duty was wilful or due to compelling WA705/2016 -: 12 :- circumstances like illness, hospitalisation etc. is to be established in a disciplinary enquiry. The following excerpt from Krushnakant B. Parmar v. Union of India and another [(2013) 3 SCC 178] which also related to unauthorised absence is apposite: “17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour WA705/2016 -: 13 :- ## unbecoming of a government servant.” The society in the instant case hardly waited for three months after the expiry of the period of leave before slapping the appellant with an order of dismissal from service notwithstanding his earlier ailment. 8.Ext.P15 judgment of the Kerala Co-operative Tribunal setting aside Ext.P6 order of dismissal from service of the appellant and directing disbursement of service benefits from 27.2.1991 is justified in law. The period of three months for which the appellant put in Ext.P1 leave application expired on 27.2.1991 and hence the cut off date adopted by the Co-operative Tribunal. The appellant has since retired from service and is entitled to retiral benefits from the date of his superannuation as is admissible to other employees of his rank. We set aside the impugned judgment and restore Ext.P15 judgment of the Kerala Co- WA705/2016 -: 14 :- operative Tribunal and further direct that the benefits shall be disbursed to the appellant within three months. The writ appeal is allowed. No costs. Sd/V. CHITAMBARESH, JUDGE Sd/SATHISH NINAN, JUDGE Sha/300618 -true copy- PS to Judge