K. R. Pradeep Kumar v. Bharath Petroleum Company Ltd Employees Co-operative Society Ltd

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944** ## **WP(C) NO. 10559 OF 2012** ## **PETITIONER:** K.R.PRADEEP KUMAR,AGED 40 YEARS S/O.LATE RADHAKRISHNAN,BADGE NO.885, CANTEEN BOY, BPCL EMPLOYEES' CO-OPERATIVE SOCIETY LTD. NO. E- 226, KOCHI REFINERY, AMBALAMUGAL, COCHIN-682302, RESIDING AT KARINGATHURUTHU HOUSE, MARADU P.O., ERNAKULAM DISTRICT. BY ADV SRI.GEORGE SEBASTIAN ## **RESPONDENTS:** 1 BHARATH PETROLEUM COMPANY LTD. EMPLOYEES COOPERATIVE SOCIETY LTD. NO.E-226, KOCHI REFINERY, AMBALAMUGAL, COCHIN-682302, REPRESENTED BY ITS SECRETARY. 2 THE PRESIDENT BHARATH PETROLEUM COMPANY LIMITED EMPLOYEES CO-OPERATIVE SOCIETY LTD. NO. E-226, KCOHI REFINERY, AMBALAMUGAL, COCHIN-682302. 3 THE BOARD OF MANAGEMENT COMMITTEE OF THE BHRATH PETROLEUM COMPANY LIMITED EMPLOYEE'S CO-OPERATIVE SOCIETY LTD. NO. E-226, KOCHI REFINERY, AMBALAMUGAL, COCHIN- 682302, REPRESENTED BY ITS PRESIDENT. BY ADVS. SRI.BENNY P.THOMAS SRI.D.PREM KAMATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)No.10559 of 2012 2 ## **MOHAMMED NIAS. C.P.,J** - - - - - - - - - - - ## WP(C)No.10559 of 2012 - - - - - - - - - - - - - - - - - - ---- Dated this the 20th day of January, 2023 ## **JUDGMENT** The petitioner was working as a Canteen Boy in the canteen run by the 1st respondent Society from 1.11.1993. He was served with a show cause notice by the second respondent- President of the Society, alleging that during the years 2005 to 2010, he was unauthorizedly absent from duty and not satisfied with the petitioner's reply; the second respondent issued a chargesheet and a notice of enquiry. Ext.P4 enquiry report found that the days of alleged absence in the year 2010 is only 25 ½ instead of 45 ½ days mentioned in Ext.P1. The petitioner objected to the said report and subsequently, he was issued a notice by the second respondent intimating the proposal to impose a punishment of 'reversion to the lowest stage in the existing scale of pay' against which also petitioner had also preferred a representation. Without considering the above, the second respondent has passed an order imposing a punishment of 'reversion to the lowest stage in the existing scale of pay' by order dated 20.03.2012, Ext.P6. Though an appeal was filed against the same by Ext.P7, no orders were passed in WP(C)No.10559 of 2012 3 the same. It was the specific contention of the petitioner that had participated in an All India Bike expedition from 19.2.2010 to 7.4.2010 along with others to spread the message against terrorism and this was done after information in advance given to the General Manager of the Bharat Petroleum Company Limited (BPCL). The Company had even issued a cheque of Rs.10,000/- to the petitioner in that regard. The petitioner challenges Ext.P6 mainly on two grounds, namely that under Rule 198(2A) of the Kerala Co-operative Societies Rules, the Committee of the Society shall constitute a disciplinary committee for the purpose of taking disciplinary action and in the instant case it is the President who himself initiated and continued the disciplinary proceedings which is patently illegal. The second statutory violation urged is that the punishment imposed on the petitioner is not one provided for under sub-rules a to h of Rule 198. 2. A counter affidavit has been filed on behalf of respondents 1 to 3, wherein it is stated that the management had considered the gravity of misconduct and the past record of the petitioner and imposed punishment of 'reversion to the lowest stage in the existing scale of pay'. It is stated that the authority to initiate disciplinary proceedings had the jurisdiction to act and issue Ext.P6 justified the punishment meted out to the petitioner, WP(C)No.10559 of 2012 4 3. I have heard Sri.George Sebastian, the learned counsel for the petitioner and Sri.Benny P. Thomas, the learned counsel appearing for the respondents. 4. As noticed above, the petitioner challenges Ext.P6 on two specific grounds, namely violation of Rule 198(2A) of the Co-operative Societies Rules as well as the violation of sub-rules a to h of Rule 198. The respondents have not disputed the actions taken by the second respondent. The issue as to whether there can be an infraction of the provisions of the Kerala Co-operative Societies Act and Rules or whether the provision of Section 198(2A) can be flouted as no longer _res integra_ . An order of punishment issued without holding enquiry under the statutory regulations is liable to be interdicted for violation of mandatory procedure. It is only the managing committee who has the power to issue a charge memo and no power is conferred upon the managing committee to delegate this function to a sub committee which is constituted as a disciplinary committee. All that the sub committee can conduct is an enquiry on the basis of the charges framed by the managing committee and as the memo issued either by the President or a sub committee is nonest and ultra vires the rules, the entire disciplinary proceedings will stand vitiate. The power to take disciplinary action flows from the statutory provisions, and without the WP(C)No.10559 of 2012 5 backing of the said provisions, disciplinary action cannot be sustained as held by this Court in the decision reported in **Kodanchery Service Co-operative Bank Ltd. and others v. Joshy Varghese** (2020 KHC 5394), it has categorically held as follows:- **==> picture [44 x 9] intentionally omitted <==** The fact that Ext.P1 memo of charges was issued by the Chairman of the disciplinary sub-committee is stated therein and the said fact is discernible from Ext.P1 itself. In the light of our conclusions and findings based on the aforesaid provisions, the decisions referred supra and the aforesaid factual position, we have no hesitation to hold that the learned Single Judge was perfectly right in holding that Ext.P1 charge memo issued by the Chairman of the disciplinary sub-committee was legally invalid and in such circumstances, the whole enquiry proceedings conducted even on ratification by Managing Committee of the framing of charge subsequently, could not validate the proceedings conducted against the first respondent. 7. Obviously, the learned Single Judge has also held that the participation of the employee in the enquiry proceedings or his W.A.No.11 of 2020 13 failure to raise any objection in regard to the authority of the disciplinary sub-committee to frame and issue charge memo could not confer an authority on the disciplinary sub-committee to issue memo of charges. When the framing and issuance of charge memo itself is wholly invalid the failure on the part of the first respondent in raising objection against it or his participation in the disciplinary proceedings are all inconsequential and such action/omission could not validate WP(C)No.10559 of 2012 6 the proceedings based on the said charge memo. xxxx“ 5. In the light of what is stated above, Ext.P6 is liable to be quashed and I do so. Liberty is reserved to the Society to proceed against the petitioner, if so advised, to act, strictly in accordance with the terms of the Co-operative Societies Act and Rules. The writ petition is allowed subject to the above. **Sd/- MOHAMMED NIAS C.P., JUDGE** dlk/28.01.2023 WP(C)No.10559 of 2012 7 ## **APPENDIX OF WP(C)No.10559 of 2012** ## **PETITIONER'S EXHIBITS:** EXHIBIT P1: TRUE COPY OF THE SHOW CAUSE NOTICE DATED 12.5.2011 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P2: TRUE COPY OF THE REPLY DATED 20.5.2011 SUBMITTED BY THE PETITIONER. EXHIBIT P3: TRUE COPY OF THE CHARGE SHEET AND NOTICE OF ENQUIRY DATED 14.7.2011 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4: TRUE COPY OF THE ENQUIRY REPORT DATED 20.12.2011 EXHIBIT P5: TRUE COPY OF THE OBJECTIION DATED 9.1.2012 FILED BY THE PETITIONER. EXHIBIT P6: TRUE COPY OF THE ORDER DATED 30.03.2012 PASSED BY THE 2ND RESPONDENT. EXHIBIT P7: TRUE COPY OF THE APPEAL MEMORANDUM DATED 24.4.2012 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P8: TRUE COPY OF THE LETTER DATED 6.1.2010 ISSUED BY THE GENERAL MANAGER BPCL(HR) EXHIBIT P9: TRUE COPY OF THE LETTER DATED 31.3.2010 ISSUED BY THE SENIOR MANAGER (PUBLIC RELATIONS) BPCL. EXHIBIT P10: TRUE COPY OF THE LETTER DATED 19.11.2009 SENT BY THE PETITIONER TO THE 2ND RESPONDENT REGARDING THE ALL INDIA BIKE EXPEDITION EXHIBIT P11: TRUE COPY OF THE CERTIFICATE DATED 11.2.2010 ISSUED BY THE DISTRICT COLLECTOR, ERNAKULAM EXHIBIT P12: TRUE COPY OF THE CERTIFICATE DATED 2.1.2020 ISSUED BY THE PRESIDENT OF THE MARADU GRAMA PANCHAYATH EXHIBIT P13: TRUE COPY OF THE PAY SLIP DATED 1.6.2012 FOR THE MONTH OF MAY, WP(C)No.10559 of 2012 8 2012. EXHIBIT P14: TRUE COPY OF THE PAY SLIP DATED 30.6.2012 FOR THE MONTH OF JUNE 2012 ## **RESPONDENTS EXHIBITS:** EXHIBIT R2A: TRUE COPY OF THE LETTER DATED 21.02.2012 PROPOSING THE PUNISHMENT. EXHIBIT R2B: TRUE COPY OF THE REPLY DATED 12.3.2012 SUBMITTED BY THE PETITIONER.