K. Ajith Kumar v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 13TH DAY OF JUNE 2016/23RD JYAISHTA, 1938** **WP(C).No. 5595 of 2007 (N) -------------------------------------------** **PETITIONER(S) : -------------------------** **K. AJITH KUMAR, S/O.KRISHNAN MASTER, AGED 44 YEARS, RESIDING AT THOOMINADU, KUNJATHUR, MANJESHWAR, KASARAGOD DISTRICT, ACCOUNTANT, MANJESHWAR SERVICE CO-OPERATIVE BANK, KASARAGOD (UNDER SUSPENSION).** **BY ADVS. SRI.BECHU KURIAN THOMAS SRI.PAUL JACOB (P)** **RESPONDENT(S) :** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KASARAGOD DISTRICT.** **3. THE MANJESHWAR SERVICE CO-OPERATIVE BANK LTD.NO.C.323, REPRESENTED BY THE SECRETARY, MANJESHWAR, KASARAGOD DISTRICT.** **4. THE PRESIDENT, THE MANJESHWAR SERVICE CO-OPERATIVE BANK LTD.NO.C.323, MANJESHWAR, KASARAGOD DISTRICT.** **5. SHANKARA K., ADVOCATE, ASOK NAGAR, KASARGODE-671 121.** - **R1 & R2 BY SR. GOVERNMENT PLEADER SRI.V.VIJULAL R3 & R4 BY ADV. SRI.KODOTH SREEDHARAN R5 BY ADV. SRI.SURESH KUMAR KODOTH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 5595 of 2007 (N)** ## **-------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **EXHIBIT P1: TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 23.04.1994.** - **EXHIBIT P2: TRUE COPY OF THE REPLY ISSUED BY THE PETITIONER DATED 29.04.1994.** - **EXHIBIT P3: TRUE COPY OF THE PROCEEDINGS BEFORE THE 3RD RESPONDENT DATED 29.06.1996.** - **EXHIBIT P4: TRUE COPY OF THE MEMO OF CHARGES ISSUED BY THE 3RD RESPONDENT BANK.** - **EXHIBIT P4(A): TRUE COPY OF THE STATEMENT OF ALLEGATIONS ISSUED BY THE 3RD RESPONDENT BANK.** - **EXHIBIT P5: TRUE COPY OF THE REPLY ISSUED BY THE PETITIONER DATED 01.03.1997.** - **EXHIBIT P6: TRUE COPY OF THE COMMUNICATION DATED 26.03.1997 ISSUED BY THE SECRETARY OF THE BANK.** - **EXHIBIT P7: TRUE COPY OF THE ORDER DATED 05.04.1997 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P8: TRUE COPY OF THE ORDER DATED 09.06.1997 ISSUED BY THE PRESIDENT.** - **EXHIBIT P9: TRUE COPY OF THE ORDER DATED 03.05.2004 PASSED BY THE 2ND RESPONDENT.** - **EXHIBIT P10: TRUE COPY OF THE ORDER DATED 18.02.2005 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P11: TRUE COPY OF THE COMMON JUDGMENT IN W.P(C).NO. 8043/2005 AND W.P(C).NO. 16252/2005.** - **EXHIBIT P12: TRUE COPY OF THE NOTICE ISSUED BY THE PETITIONER DATED 19.07.2006.** - **EXHIBIT P13: TRUE COPY OF THE REPLY ISSUED BY THE 5TH RESPONDENT DATED 31.07.2006.** - **EXHIBIT P14: TRUE COPY OF THE NOTICE DATED 09.08.2006 ISSUED BY THE PETITIONER.** - **EXHIBIT P15: TRUE COPY OF THE REPLY DATED 21.08.2006 ISSUED BY THE 5TH RESPONDENT.** ## **WP(C).No. 5595 of 2007 (N)** **-------------------------------------------** **EXHIBIT P16: TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT NUMBERED AS G.O(RT)NO. 509/2006/CO-OP. DATED 09.11.2006.** **RESPONDENT(S)' EXHIBITS :** **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C). No. 5595 of 2007** **-----------------------------------------------** Dated this the 13[th] day of June, 2016 ## **JUDGMENT** This writ petition is filed by the petitioner challenging Ext.P16 order passed by the first respondent and also seeking a direction to the third respondent to reinstate the petitioner in service. 2. Brief facts for the disposal of the writ petition are as follows:- Petitioner while working as Branch Manager of the third respondent Bank was suspended alleging misappropriation. Thereafter, he was given memo of charge and statement of allegations. Petitioner denied all the allegations levelled against him. However, it is contended that without appointing an enquiry officer or without serving a copy of the enquiry report. the matter was heard by the Secretary of the Bank on 4.4.1997. On W.P.(C). No. 5595 of 2007 2 5.4.1997 the Sub Committee passed Ext.P2 order removing the petitioner from service without hearing him. 3. Being aggrieved, petitioner has preferred appeal before the Board of Directors. Board of Directors as per Ext.P3 rejected the appeal. It is the contention of the petitioner that members who participated in the sub committee also participated in the Board of Directors for deciding the appeal. Challenging Ext.P1 memo and Ext.P3 order petitioner filed petition under Rule 176 of the Co-operative Societies Rules (for short ' the Rules'). But, the same was dismissed by the second respondent. Thereupon, petitioner filed a revision before the first respondent. First respondent passed an order setting aside the order passed by the second respondent under Rule 176 of the Rules and also initiated disciplinary proceedings against the petitioner by the third respondent Bank. While passing the order Government 3 W.P.(C). No. 5595 of 2007 failed to direct the Bank to reinstate the petitioner with all the consequential benefits. Therefore, petitioner challenged the order of the Government in W.P.(C) No.16252/2005 seeking reinstatement. Third respondent filed W.P.(C)8043/2005 challenging the order of the first respondent contending that, first respondent has exceeded his power under Section 87 of the Cooperative Societies Act (for short 'the Act'). This Court vide Ext.P11 judgment relegated the parties to the first respondent holding that the petitioner was liable to substantiate the reason as to the delay caused in invoking the provisions of Rule 176 of the Rules. 4. Petitioner had produced Exts.P12 and P15 before first respondent to substantiate the delay that was caused in filing petition before the second respondent. But, however, first respondent has dismissed the revision as per Ext.P16 order. It is thus challenging Ext.P16 petitioner has filed this writ petition W.P.(C). No. 5595 of 2007 4 before this Court. 5. Second respondent has filed a counter affidavit refuting the allegations , claims and demands raised by the petitioner. That apart, it is contended that while working as Branch Manager of the third respondent, petitioner indulged in irregularities and misappropriations in the Bank during the period 1.7.1996 to 10.1.1997. When it has came to the notice of the Bank, Bank conducted enquiry through its officer and submitted report to the President and charge memo was issued to the petitioner by the President, and he was suspended from service as per the proceedings of the President dated 10.1.1997. Petitioner submitted reply to the charge memo denying allegations made against him. Board of Directors of Bank constituted a sub committee for enquiry. The sub committee after enquiry found that charges levelled against the petitioner is valid and hence recommended termination W.P.(C). No. 5595 of 2007 5 of his service from the Bank. Based on this on 5.4.1997 Bank removed the petitioner from the service of the Bank. 6. That apart it is contended that, third respondent Bank while conducting enquiry had provided opportunity to the petitioner to defend himself. Charges were framed, show cause notice was issued and petitioner was given opportunity to peruse relevant records and take down extracts from the records. But the petitioner did not avail any such opportunity, at last the sub committee and Board of Directors passed orders considering the documentary evidence and explanations offered by the petitioner. It is also urged that third respondent Bank as per resolution No.782 dated 4.3.1997 has constituted a sub committee to enquire into the subject matter of allegations against the petitioner in the Bank. The sub committee examined the charges against the petitioner and defence produced by W.P.(C). No. 5595 of 2007 6 him and the committee was of the opinion that the charges against the petitioner is valid and accordingly unanimously resolved to remove the petitioner from the service of the Bank. On the basis of the said decision, President of the Bank as per proceedings dated 5.4.1997 removed the petitioner from service with effect from 10.1.1997. Petitioner filed appeal before Board of Directors against the said order. Board of Directors on 5.6.1997 as per resolution No. 970 rejected the appeal on the ground that petitioner has not made out any fresh grounds for appeal other than the contentions raised earlier before the sub committee. It is also stated that all the members of the sub committee were present in the board meeting. 7. That apart it is stated that both the sub committee and Board of Directors were of the unanimous opinion that all charges levelled against the petitioner are proved with evidence. Therefore, it is W.P.(C). No. 5595 of 2007 7 contended that on the basis of the enquiry report, memo of charge with statement of allegations were issued to the petitioner. Therefore, it is contended that the entire action of the third respondent was in accordance with law and observing the principles of natural justice. 8. It is also the contention of the second respondent that petitioner filed appeal against the termination before the second respondent invoking Rule 176 of the Rules after a lapse of six years from his termination from service, on 29.3.2003. That apart, it is also stated that petitioner has filed the petition before the second respondent, pursuant to which the second respondent issued notice under registered post with acknowledgement card to the President of the Bank and the petitioner. But, notice issued to the petitioner was returned on 30.4.2003 with an endorsement 'addressee left India'. Third respondent Bank filed objection and the W.P.(C). No. 5595 of 2007 8 petitioner was absent for hearing. Accordingly, second respondent considered the claim on merit and dismissed it as per order dated 3.5.2004. 9. Pursuant to the order passed by this Court in W.P.(C)No.8043/2005, first respondent conducted hearing on 25.10.2006 by giving notice to the petitioner and second and third respondents. After a detailed consideration first respondent dismissed the revision submitted by the petitioner and confirmed the proceedings of the second respondent on 3.5.2004. Petitioner was removed from service of the third respondent on 5.4.1997 with effect from 10.1.1997. Thereafter, nothing was heard from the petitioner till he preferred an appeal against the termination order after a period of six years. Therefore, it is contended that the entire action pursuant to the order passed by the second respondent and the first respondent are in order, that the same were passed after verifying the facts and W.P.(C). No. 5595 of 2007 9 circumstances and law involved in the subject matter. 10. Heard learned counsel for the petitioner, learned Government Pleader and perused the pleadings and documents on record. 11. The question to be considered in this case is whether any manner of interference is required in Ext.P16 order passed by the first respondent. After conducting enquiry petitioner was removed from the service of Bank on 5.4.1997 with effect from 10.1.1997. However, petitioner did not take any action against the order of termination for a period of six years. It was only on 29.3.2003 petitioner has invoked the power of the second respondent under Rule 176 of the Rules. Petitioner did not offer any proper explanation for the delay caused in invoking the said provision. However, Government in the first round interfered with the said order and set aside the proceedings and as well as the order of the second respondent. However, in a writ 10 W.P.(C). No. 5595 of 2007 petition filed by the third respondent, matter was remanded to the first respondent for reconsideration and on remand, first respondent found that there was no explanation offered by the petitioner with respect to the huge delay occurred in invoking the power of the second respondent under Rule 176 of the Rules. It was under the said circumstances the revision filed by the petitioner was dismissed by the Government. 12. That apart, yet another legal issue arises in this case. By the time petitioner has invoked the jurisdiction of the second respondent on 29.3.2003, Chapter IX was introduced in the Co-operative Societies Act and as provided under Section 69 of the Act, the remedy available to the petitioner is to prefer a suit. Section 69 of the Act opens with a non obstante clause thus prohibiting any other action other than invoking the power under Section 69 of the Act against the matters/disputes enumerated thereunder. On a reading W.P.(C). No. 5595 of 2007 11 of Section 69 it is categoric and clear that the subject issue is a dispute between the society and an officer of the third respondent Bank. Therefore, the remedy available to the petitioner was under Section 69(1)(c) of the Act. Petitioner did not invoke the same. Petitioner has invoked the power of second respondent under Rule 176 of the Rules. But, as stated earlier consequent to the introduction of Section 69, second respondent did not have any power to entertain the petition filed by the petitioner under Rule 176. Therefore, the entire action initiated by the petitioner and considered by respondents 1 and 2 are void under law. The said question was considered by this Court in **Thrissur Taluk Cooperative College Educational Society Ltd v. Joint Registrar** [2012(1) KLT 503] and **Cheranallur Service Co-operative Bank Ltd. v. State of Kerala and Others** [ 2012(3) KHC 834]. Going by the principles laid down by this Court in the said judgments it can be seen W.P.(C). No. 5595 of 2007 12 that no power is vested under the second respondent as per Rule 176 of the Rules with respect to matters provided under Section 69 of the Act. 13. However, learned counsel for the petitioner even though is compelled to concede the legal position, had made a fervent plea, contending that there was no proper enquiry conducted against the petitioner by providing him opportunity to contest the enquiry proceedings an opportunity may be provided in that regard. However, the same is a factual circumstance. Second respondent has filed a counter affidavit before this Court stating that sufficient opportunity was provided to the petitioner to contest the enquiry proceedings. Obviously, the second respondent has perused the files with respect to the enquiry conducted by the third respondent Society and therefore, it can only be found that the contentions contained in the counter affidavit filed are on the basis of true facts and W.P.(C). No. 5595 of 2007 13 ## circumstances involved in the matter. 14. That apart, there is no reply filed by the petitioner controverting the statements contained in the counter affidavit filed by the second respondent. Therefore, it cannot be said that the third respondent has not provided an opportunity to the petitioner in the enquiry proceedings. Therefore, submissions made by the learned counsel for the petitioner that no proper opportunity has been provided to the petitioner in the enquiry proceedings cannot be sustained. The totality of the facts and circumstances reveal that the enquiry was conducted by observing the principles of natural justice. Therefore, even though learned counsel for the petitioner has raised a contention leave open liberty to the petitioner to challenge the enquiry proceedings, I do not think it proper to do so at a distance of nearly 20 years from the date of issue in question. cannot be sustained. W.P.(C). No. 5595 of 2007 14 15. Taking into account the entire cumulative facts and circumstances and law involved I am of the considered opinion that there are no circumstances made out by the petitioner in Ext.P16 order warranting interference of this Court under Article 226 of the Constitution of India exercising the power of judicial review. Resultantly, writ petition fails and accordingly the same is dismissed. ## **Sd/-** **SHAJI P. CHALY, JUDGE** dlk/15/6/