K.M. MOLLYKUTTY PANACKAL HOUSE, KUNNUM BHAGOM P.O., CHIRAKKADAVU, KANJIRAPPALLY v CHIRAKKADAVU SERVICE CO-OPERATIVE BANK, CHIRAKKADAVU P.O., PONKUNNAM, KANJIRAPPALLY, THE CONVENER DISCIPLINARY SUB-COMMITTEE, CHIRAKKADAVU SERVICE CO-OPERATIVE BANK LTD., THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM, AND KERALA CO-OPERATIVE ARBITRATION TRIBUNAL, THIRUVANANTHAPURAM

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 5[TH] DAY OF OCTOBER 2021 / 13TH ASWINA, 1943** **WP(C) NO. 7012 OF 2014** ## **PETITIONER/S:** K.M.MOLLYKUTTY PANACKAL HOUSE, KUNNUM BHAGOM P.O., CHIRAKKADAVU, KANJIRAPPALLY. BY ADVS. SRI.P.RAVINDRAN (SR.) SRI.SREEDHAR RAVINDRAN ## **RESPONDENT/S:** 1 CHIRAKKADAVU SERVICE CO-OPERATIVE BANK CHIRAKKADAVU P.O., PONKUNNAM, KANJIRAPPALLY, REPRESENTED BY ITS SECRETARY, 686562. 2 THE CONVENER DISCIPLINARY SUB COMMITTEE, CHIRAKKADAVU SERVICE COOPERATIVE BNAK LTD.NO.2057, CHIRAKKADAVU P.O., PONKUNNAM, KANJIRAPPALLY, 686562. 3 THE CO-OPERATIVE ARBITRATION COURT THIRUVANANTHAPURAM-695001. 4 KERALA CO-OPERATIVE ARBITRATION TRIBUNAL THIRUVANANTHAPURAM, 695001. BY ADVS. SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN SRI.L.VANCHEESWARAN D. SOMASUNDARAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 7012 OF 2014** **2** ## **JUDGMENT** Award of Arbitration Court in ARC No.108/2010 dated 10.4.2012, Ext.P7 and of appellate Tribunal dated 12.12.2013 have been challenged in the present writ petition whereby the order of compulsory retirement imposed upon the petitioner has been upheld. 2. Petitioner while working as an accountant of the respondent Bank was served with a show cause notice dated 2.3.2009 alleging certain illegalities. Reply was submitted which was not found satisfactory, resulted into memo of charges dated 9.4.2009. Respondent appointed Enquiry Officer to conduct the enquiry. Petitioner appeared before the enquiry officer and on conclusion the enquiry officer submitted his report dated 31.5.2010 proving the charges. Vide order dated 12.7.2010, petitioner was ordered to be dismissed from service with effect from 7.7.2010. However, in an Appeal before the committee, the order of dismissal was converted into compulsory retirement vide order dated 16.8.2010. Against the aforementioned order, preferred an ARC before the Arbitration Court which was dismissed vide Ext.P7 and appeal also entailed into dismissal. 3 W.P.(C) No.7012 of 2014 3. Learned counsel appearing on behalf of the petitioner in support of the aforementioned facts has raised following legal submissions: i. The order of dismissal was passed without complying principles of natural justice as it was a specific case before the authorities of having not supplied the copy of the enquiry report. ii. The Supreme Court have repeatedly directed that in cases where the disciplinary authority is not the enquiry officer, report of the enquiry should be furnished to the delinquent employee before it is accepted. iii. The Co-operative Tribunal committed a fundamental error in holding that the furnishing of a copy of the enquiry report to the delinquent is not mandatory, which is against the mandate of the Supreme Court. 4. In support of the aforementioned contentions, has relied upon the judgment of Hon'ble Supreme Court, _**Managing Director Ecil v. B.Karunakar and Others [AIR 1994 SC 1074]**_ . 5. On the other hand, the respondents submitted that the petitioner appeared in the enquiry and thereafter, intentionally stopped appearance and was proceeded ex- W.P.(C) No.7012 of 2014 4 parte, resulted into proving of charges. The enquiry officer passed an order, rejecting the application that no injury would be caused to the plaintiff in conducting the case when the Management did not engage an advocate. As far as the supply of the proceedings of the enquiry are concerned, the plaintiff in cross examination admitted of having supplied. In the judgment of the Supreme Court in _**Uttarakhand Transport Corporation and Others v. Sukhveer Singh [2017 KHC 6766]**_ , it has been held that non supply of enquiry report would not warrant reinstatement as it is incumbent upon the delinquent employee to plead and prove of having suffered a serious prejudice due to the non supply of the enquiry report. Such pleadings are wholly warranting and thus benefit of the judgment cited by the petitioner cannot be granted. The concurrent findings of the fact by the Arbitration Court as well as Tribunal cannot be interfered, until and unless there is an apparent fallacy or jurisdictional error, which is conspicuously absent as both the authorities have in detail examined the matter and found the charges have been proved and upheld the decision of the management from converting the order of dismissal into compulsory retirement and thus urged this Court for 5 W.P.(C) No.7012 of 2014 dismissal of the writ petition. 6. I have heard the learned counsel for the parties and appraised the paper book. It is a matter of fact that the petitioner while working as an Accountant was served with a show cause notice alleging certain charges on 2.3.2009 which was duly replied. Since the reply was not satisfactory, resulting into service of charge sheet on 9.4.2009. On appointment of the enquiry officer, the petitioner attempted to delay the proceedings by moving series of application for providing legal representative of the Union which were rejected and all the proceedings of the enquiry report as per the submission of the plaintiff were supplied. Copy of the enquiry report was also supplied to him. On receipt of the enquiry report dated 31.5.2010, was served with a show cause notice dated 15.6.2010 which was duly replied resulted into impugned punishment of dismissal dated 12.7.2010. 7. Supreme Court in the judgment cited _**Uttarakhand Transport Corporation and Others**_ (supra) held as under: 4. It is contended on behalf of the Appellants that the impugned judgment is contrary to the law laid down in Managing Director ECIL Hyderabad & Ors. v. B. Karunakar & Ors. (supra). It is further submitted that a copy of the inquiry report was in fact supplied to the Respondent. The other point that was canvassed by the Appellants is that the 6 W.P.(C) No.7012 of 2014 Respondent neither pleaded nor proved that any prejudice was caused to him by the non-supply of the inquiry report prior to the issuance of show cause notice. The counsel for the Respondent supported the judgment of the High Court by submitting that it was incumbent upon the disciplinary authority to supply the inquiry report prior to the issuance of the show cause notice as per the judgment of this Court in 1 (1993) 4 SCC 727 Managing Director ECIL Hyderabad & Ors. v. B. Karunakar & Ors. (supra). He also relied upon certain findings in the inquiry report which were in favour of the Respondent. He finally submitted that the punishment of dismissal from service is disproportionate to the delinquency. 5. The award of the labour court was set aside by the High Court on the sole ground that non-supply of the inquiry report prior to the show cause notice vitiated the disciplinary proceedings. The High Court, in our opinion, committed an error in its interpretation of the judgment in Managing Director ECIL Hyderabad & Ors. v. B. Karunakar & Ors. (supra). It is no doubt true that this Court in the said judgment held that a delinquent employee has a right to receive the report of the inquiry officer before the disciplinary authority takes a decision regarding his guilt or innocence. Denial of a reasonable opportunity to the employee by not furnishing the inquiry report before such decision on the charges was found to be in violation of principles of natural justice. In the instant case, the disciplinary authority communicated the report of the inquiry officer to the Respondent along with the show cause notice. There is no dispute that the Respondent submitted his reply to the show cause notice after receiving the report of the inquiry officer. On considering the explanation submitted by the Respondent, the disciplinary authority passed an order of dismissal. Though, it was necessary for the Appellants to have supplied the report of the inquiry officer before issuance of the show cause notice proposing penalty, we find no reason to hold that the Respondent was prejudiced by supply of the inquiry officer’s report along with the show cause notice. This is not a case where the delinquent was handicapped due to the inquiry officer’s report not being furnished to him at all. In Managing Director ECIL Hyderabad & Ors. v. B. Karunakar & Ors. (supra) this Court, while considering the effect on the order of punishment when the report of the inquiry officer was not furnished to the employee and the relief to which the delinquent employee is entitled, held as under: 7 W.P.(C) No.7012 of 2014 [v] ……..When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice. 6. The question of the relief to be granted in cases where the report of the inquiry officer was not supplied to the delinquent employee came up for consideration of this Court in Haryana Financial Corpn. v. Kailash Chandra Ahuja2 in which it was held as follows: ## 21. From the ratio laid down in B. Karunakar [(1993) 4 SCC 727] it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and 2 (2008) 9 SCC 31 the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside. 8 W.P.(C) No.7012 of 2014 After a detailed examination of the law on the subject, this Court concluded as follows: 44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show “prejudice”. Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down. 7. It is clear from the above that mere non-supply of the inquiry report does not automatically warrant re-instatement of the delinquent employee. It is incumbent upon on the delinquent employee to plead and prove that he suffered a serious prejudice due to the nonsupply of the inquiry report. We have examined the writ petition filed by the Respondent and we find no pleading regarding any prejudice caused to the Respondent by the non-supply of the inquiry report prior to the issuance of the show cause notice. The Respondent had ample opportunity to submit his version after perusing the report of the inquiry officer. The Respondent utilised the opportunity of placing his response to the inquiry report before the disciplinary authority. The High Court committed an error in allowing the writ petition filed by the Respondent without examining whether any prejudice was caused to the delinquent employee by the supply of the inquiry officer’s report along with the show cause notice. We are satisfied that there was no prejudice caused to the respondent by the supply of the report of the inquiry officer along with the show cause notice. Hence, no useful purpose will be served by a remand to the court below to examine the point of prejudice. 8. The Respondent contended that the punishment of dismissal is disproportionate to the delinquency. It is submitted that he was working as a driver and the irregularity in issuance of tickets was committed by the conductor. We are in agreement with the findings of the inquiry officer which were accepted by the disciplinary authority and approved by the appellate authority and the 9 W.P.(C) No.7012 of 2014 labour court that the Respondent had committed the misconduct in collusion with the conductor. It is no more res integra that acts of corruption/misappropriation cannot be condoned, even in cases where the amount involved is meagre. (See - U.P.SRTC v. Suresh Chand Sharma3). No explanation has come forward in not participating the proceedings much less of having remained absent, resulting into ex-parte proceedings. All points raised have been thoroughly examined by the arbitration Court as well as the Tribunal. The power of judicial review, until and unless any illegality or perversity is pointed out, cannot be invoked under Article 226 of the Constitution of India to form a different opinion than the one arrived at. No ground for interference is made out. Writ petition is accordingly dismissed. ## **Sd/-** sab **AMIT RAWAL JUDGE** W.P.(C) No.7012 of 2014 10 ## **APPENDIX OF WP(C) 7012/2014** PETITIONER EXHIBITS EXHIBIT-P1: TRUE COPY OF THE SHOW CAUSE NOTICE DATED 13.03.2009. EXHIBIT-P2: TRUE COPY OF THE REPLY DATED 30.03.2009. EXHIBIT-P3: TRUE COPY OF THE MEMO OF CHARGES DATED 09.04.2009. EXHIBIT-P4: TRUE COPY OF THE NOTICE DATED 31.05.2010. EXHIBIT-P5: TRUE COPY OF THE PLAINT IN ARC NO.108/2010 DATED 4.10.2010. EXHIBIT-P6: TRUE COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENTS 1 AND 2 DATED 18.01.2011. EXHIBIT-P7: TRUE COPY OF THE AWARD OF THE ARBITRATION COURT IN ARC NO.108/2010 DATED 10.4.2012. EXHIBIT-P8: TRUE COPY OF THE APPEAL BEFORE CO-OPERATIVE TRIBUNAL THIRUVANANTHAPURAM, A.P.NO.65/2012. EXHIBIT-P9: TRUE COPY OF THE ORDER OF THE APPELLATE TRIBUNAL IN APPEAL NO.65/2012 DATED 12.12.2013.