K. Cicily v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938** **WP(C).No. 32142 of 2005 (B)** **----------------------------** **PETITIONER(S): -------------** **K.CICILY, SENIOR MANAGER, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., KOLLAM.** **BY ADVS.SRI.P.RAMAKRISHNAN SMT.PREETHI KESAVAN** ## **RESPONDENT(S):** **--------------** **1. STATE OF KERALA** **THE SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, SECRETARIAT, TRIVANDRUM.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIIES, TRIVANDRUM.** **3. THE KOLLAM DISTRICT CO-OPERATIVE BANK LTD., KOLLAM, REPRESENTED BY ITS GENERAL MANAGER.** **R1 & R2 BY SENIOR GOVERNMENT PLEADER SRI.C.S.SHEEJA R3 BY ADV. SMT.AYSHA YOUSEFF, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 32142 of 2005 (B) ----------------------------** ||**APPENDIX**| |---|---| |**PETITIONER(S)' EXHIBITS:**|| |**------------------------**|| |**EXT,P1:**|<br>**TRUE COPY OF THE CHARGE SHEET NO.DGM/033/87-88/W**| ||**DTD.19.1.1988.**| |**EXT.P2:**|<br>**TRUE COPY OF THE EXPLANATION BY THE PETITIONER**| ||**DTD.15.2.1988.**| |**EXT.P3:**|<br>**TRUE COPY OF THE SHOW CAUSE NOTICE NO.DGM/033/II/87-88**| ||**DTD.9.3.1991.**| |**EXT.P4:**|<br>**TRUE COPY OF THE EXPLANATION SUBMITTED BY THE**| ||**PETITIONER DTD.NIL.**| |**EXT.P5:**|<br>**TRUE COPY OF THE PROCEEDINGS NO.DGM/O33/II/87-88**| ||**DTD.19.7.1991.**| |**EXT.P6:**|<br>**TRUE COPY OF THE APPEAL PETITION DTD.17.12.1991.**| |**EXT.P7:**|<br>**TRUE COPY OF THE LETTER NO.DGM/033/II/87-13618**| ||**DTD.22.12.1995.**| |**EXT.P8:**|<br>**TRUE COPY OF THE LETTER NO.DGM/033/II/87-88/8551**| ||**DTD.4.11.2000.**| |**EXT.P9:**|<br>**TRUE COPY OF THE RESOLUTION NO.79 DTD.30.10.2000.**| |**EXT.P10:**|<br>**TRUE COPY OF THE JUDGMENT IN CC 153/1993 OF THE JUDL.**| ||**1ST CLASS MAGISTRATE COURT, SASTHAMCOTTA DTD.31.3.2000.**| |**EXT.P11:**|<br>**TRUE COPY OF THE PETITION UNDER RULE 176 OF THE RULES**| ||**FILED BY THE PETITIONER DTD.10.11.2000.**| |**EXT.P12:**|<br>**TRUE COPY OF THE ORDER NO.EM(1) 50241/2000**| ||**DTD.4.5.2001.**| |**EXT.P13:**|<br>**TRUE COPY OF THE REVISION PETITION FILED BEFORE THE**| ||**GOVERNMENT DTD.5.6.2001.**| |**EXT.P14:**|<br>**TRUE COPY OF THE GOVERNMENT ORDER GO.RT.540/02/CO-OP.**| ||**DTD.3.12.2002.**| |**EXT.P15:**|<br>**TRUE COPY OF THE GO.RT.373/05/CO-OP. DTD.17.6.2005.**| |**RESPONDENT(S)' EXHIBITS:**|| |**------------------------**|| |**EXT.R3:**|**TRUE COPY OF THE LETTER DTD.31.7.1987 OF THE PETITIONER**| ||**ADDRESSED TO THE 3RD RESPONDENT BANK.**| - **EXT.R3(a): TRUE COPY OF THE LETTER DTD.8.8.1987 OF THE PETITIONER ADDRESSED TO THE 3RD RESPONDENT BANK.** ## **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **SHAJI P. CHALY, J.** ----------------------------------------------- **W.P.(C). No.32142 of 2005 ----------------------------------------------Dated this the 23[rd] day of August, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Exts.P5, P8, P12, P14 and P15 and seeking to declare that the disciplinary action taken against the petitioner and the imposition of penalties is in violation of rule 198(1) and (3) of the Kerala Co-operative Societies Rules. 2. Material facts for the disposal of the writ petition are thus; petitioner worked in the category of Clerk/Cashier in the Karunagappally Branch of the 3[rd] respondent bank, during the period 1.12.1986 to 31.7.1987. After joining the Head Office, she was suspended from service on 24.4.1987, mainly on the allegation of misappropriation of funds, evident from Ext.P1 charge memo. Petitioner participated in the said proceedings and thereafter a domestic enquiry was conducted. In the domestic enquiry, the charge was proved and thereupon a show cause notice, evident from Ext.P3 was issued. Petitioner W.P.(C). No.32142 of 2005 2 submitted Ext.P4 explanation. However, the Executive Committee as per as per Ext.P5 imposed various punishments like reduction in rank, withholding of promotion for two years, withholding of increments with cumulative effect for 2 years, treating the period of suspension as leave on loss of pay and the liability to make good any particular loss caused to the bank, to be ascertained later. 3. Aggrieved, petitioner submitted Ext.P6 appeal before the Managing Committee. In the meanwhile, bank constituted a Sub Committee of four members for fixing liability of delinquents involved in the misappropriation case. As per Ext.P7, the Sub Committee reported to the Registrar of Co-operative Societies that, no pecuniary loss has been caused to the bank in the misappropriation case. 4. However, the appeal filed by the petitioner was dismissed as per resolution dated 30.10.2000, evident from Ext.P8 communication and Ext.P9 resolution of the Committee. Petitioner was arrayed as accused in C.C. No.153 of 1993 on the files of the Judicial Magistrate of the First W.P.(C). No.32142 of 2005 3 Class, Sasthamkotta on the very same allegations of misappropriation. However, as per Ext.P10 petitioner was acquitted. Challenging the disciplinary proceedings and the resultant orders, petitioner filed Ext.P11 before the 2[nd] respondent specifically complaining that, the procedure adopted by the President and Executive Committee by imposing various penalties is not correct. During the pendency of Ext.P11, petitioner has filed O.P.No.30848/2000 before this court and secured a direction to the Registrar of Co-operative Societies to pass orders on Ext.P11. Thereafter, the Registrar heard the matter and rejected the same as per Ext.P12 order dated 4.5.2001. Being aggrieved by Ext.P12, petitioner submitted Ext.P13 revision before the Government. But the revision was disposed of, according to the petitioner, without hearing her as per order dated 3.12.2002, evident from Ext.P14. Since the order was passed without hearing, petitioner, filed an application for re-hearing and accordingly a personal hearing was conducted on 4.4.2005. However, Ext.P14 order was confirmed as per Ext.P15 dated 4.4.2005. W.P.(C). No.32142 of 2005 4 It is thus challenging the aforesaid orders, petitioner has filed this writ petition. 5. Third respondent has filed a counter affidavit refuting the allegations and claims and demands made by the petitioner. According to the 3[rd] respondent, the entire action initiated by the 3[rd] respondent was in accordance with law and the respective authorities have passed orders after providing sufficient opportunity to the petitioner and taking into account the relevant aspects put forth by the petitioner. It is also stated that, petitioner has not made out a case warranting interference of this court by exercising the power of judicial review with the orders passed by the respective statutory authorities. It is also stated that petitioner was reinstated in service of the bank on 19.7.1991 itself and she is continuing as such. According to the 3[rd] respondent bank, punishment imposed on various counts is in accordance with law and therefore, petitioner is not entitled to succeed in this writ petition. 6. Heard learned counsel for the petitioner, learned W.P.(C). No.32142 of 2005 5 Senior Government Pleader and perused the pleadings and the documents produced along with the writ petition. 7. The prime contention raised by the learned counsel for the petitioner is that, the punishment is imposed by the Executive Committee and the President has discharged the functions on behalf of the Executive Committee. As provided under law, since the petitioner was a Clerk at that point of time, the punishment can be imposed only by the Secretary of the organization and not by the Executive Committee or the President. That apart it is also contended that, when Ext.P15 order was passed by the Government, Section 69 of the Act was brought into the statute, by which, the Arbitration Court alone is vested with powers to consider the issue in question. Therefore, the 1[st] respondent ought to have referred the matter to the Arbitration Court in spite of exercising the power. It is also brought to my notice, as per Section 69 of the Act, the Arbitration Court alone is vested with powers. Since the subject matter is pending before the Government, it ought to have referred the matter to the Arbitration Court for W.P.(C). No.32142 of 2005 6 appropriate consideration. The said issue with respect to the pendency of the proceedings before the statutory authority vis-a-vis Section 69 of the Act was considered by a Division Bench of this court reported in **Thrissur Taluk Co-operative 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] and held that, consequent to the introduction of Section 69, there was no authority or powers vested with any other statutory authority to consider a service matter. 8. Taking into account the law laid down by this court in this regard and reckoning the facts and legal circumstances, I am of the considered opinion that Exts.P14 and P15 orders passed by the Government are liable to be set aside and there will be a direction to consider Ext.P13 revision submitted by the petitioner. It is also made clear that, the 1[st] respondent will be at liberty to refer the matter to the concerned Arbitrator taking into account the statutory stipulations contained under Section 69 of the Kerala Co-operative W.P.(C). No.32142 of 2005 7 ## Societies Act. The writ petition is allowed accordingly and the 1[st] respondent is directed to take a decision on Ext.P13 in accordance with law and taking into account the parameters provided under Section 69 of the Act within two months from the date of receipt of a copy of this judgment. Sd/- **SHAJI P. CHALY JUDGE** smv 23.08.2016