Krishna Kumar K.R v. Brahmamangalam Gramaswaraj Service Co-Operative Bank Ltd

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 7 [TH ] DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943 ``` ## **`WP(C) NO. 14092 OF 2021`** ## **`PETITIONER/S:`** ``` KRISHNA KUMAR K.R AGED 42 YEARS KRISHNA BHAVAN, BRAHMAMANGALM P.O., KOTTAYAM, SENIOR CLERK (UNDER SUSPENSION), BRAHMAMANGALAM GRAMA SWARAJ SERVICE CO-OPERATIVE BANK LTD NO.2966, BRAHMAMANGALAM P.O., KOTTAYAM ``` ``` BY ADVS. B.S.SWATHI KUMAR ANITHA RAVINDRAN HARISANKAR N UNNI SARANGADHARAN P. REMYA MURALI ``` ## **`RESPONDENT/S:`** ``` 1 BRAHMAMANGALAM GRAMASWARAJ SERVICE CO-OPERATIVE BANK LTD. NO. 2966 BRAHMAMANGALAM P.O., KOTTAYAM,PIN-686 614, REPRESENTED BY ITS SECRETARY ``` ``` 2 THE MANAGING COMMITTEE OF BRAHMAMANGALAM GRAMA SWARAJ SERVICE CO-OPERATIVE BANK LTD NO.2966, BRAHMAMANGALAM P.O., KOTTAYAM,PIN-686 614 REPRESENTED BY ITS PRESIDENT ``` ``` 3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), CIVIL STATION, KOTTAYAM BY ADVS. A.AMRUTHA VIDYADHARAN ELIZABETH ALEXANDER KURIAN ``` ``` SRI. ARUN AJAY SHANKAR, GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 14092 OF 2021 ``` ``` 2 ``` **==> picture [44 x 11] intentionally omitted <==** ## **JUDGMENT** The petitioner has approached this Court seeking a declaration that Exhibit P3 order of suspension issued by the Managing Committee of the 1st respondent Bank is illegal and arbitrary and violative of the specific directions issued by this Court in Exhibit P1 judgment. The petitioner has also sought for reinstating him in service and to permit him to continue in service as Senior Clerk by treating that he is in service from the date of completion of the earlier enquiry. 2. Brief facts are as under: The records reveal that the petitioner was employed as a Senior Clerk in the 1st respondent Bank. On 28.03.2019, he was placed under suspension by the Secretary of the Bank, pursuant to a decision of the Managing Committee. The specific allegation is that the petitioner while working as Cashier-in-Charge and one Mrs. Sini. V.D, while working as Manager-in-charge of the Kattikunnu Branch of the 1st respondent Society, were joint custodians of cash and records maintained in the Bank. On 27.03.2019, an inspection was carried out by the Unit Inspector, Vadayar and a shortage amounting to Rs. 17,78,498/- was detected. It is also found that the books and records of the branch were tampered with. A complaint was ``` WP(C) NO. 14092 OF 2021 ``` ``` 3 ``` lodged before the Vaikkom Police Station and the investigation was completed and a final report was laid. The case is now pending as C.C. No.710/2019 and the petitioner is on bail. After suspending the petitioner, a show-cause notice and memo of charges were issued by the Chairman of the disciplinary committee and thereafter an enquiry was conducted. The charges were found to be proved and he was found guilty. A show-cause notice was again issued and finally by order dated 04.06.2020, the petitioner was terminated from service of the bank. The petitioner challenged the order of termination by preferring a statutory appeal. He also approached this Court and filed W.P.(C) No. 19884/2020, challenging the order of termination, raising various legal contentions. During the pendency of the writ petition before this Court, the statutory appeal filed by the petitioner was dismissed. Immediately thereafter, the petitioner approached this Court and filed W.P.(C) No. 6133/2021 challenging the said order. A learned Single Judge of this Court, by common judgment dated 22.06.2021, taking note of the law laid down by this Court in **Kodenchery Service Co-operative Bank v. Joshy Varghese** (2020 (4) KLT 129), took the view that the jurisdiction for issuing memo of charge is vested only with the Managing Committee of the Society and the same cannot be delegated to a disciplinary subcommittee. It was held that since the memo of charges and the show cause notice was issued against the ``` WP(C) NO. 14092 OF 2021 ``` ``` 4 ``` petitioner by the disciplinary committee, which resulted in the termination order, the same was without jurisdiction. After coming to such a finding, this Court quashed the entire proceedings as invalid and the termination order was also set aside. The directions were issued to the bank to pay the entire arrears of the subsistence allowance and to reinstate the petitioner herein. However, in Para No.12 of the Judgment, this Court observed that the quashing of the proceedings would not preclude the bank from issuing a fresh memo of charges in accordance with law and to proceed against the writ petitioner if so advised. The petitioner contends that immediately on receipt of the judgment of this Court, the same was produced before the 1st respondent. The petitioner was directed to rejoin duty and he rejoined duty as Senior Clerk on 06.07.2021 at 10.00 am. He contends that on 07.07.2021 when the petitioner reached the Head Office, he was served with Exhibit P3 order suspending him from service w.e.f. 10.00 a.m on 07.07.2021. The aforesaid order is under challenge. 3. A detailed counter affidavit has been filed by respondents 1 and 2. After narrating the allegations levelled against the petitioner, it is stated that it was in terms of the directions issued by this Court in Exhibit P1 judgment, that the petitioner was reinstated in the service and duty was assigned. It is further stated that a total sum of Rs.3,05,786/- was paid towards subsistence ``` WP(C) NO. 14092 OF 2021 ``` ``` 5 ``` allowance for the period from 28.03.2019 till 17.04.2020, being the date of completion of domestic enquiry. The petitioner was also paid a total sum of Rs. 4,20,447/- as salary for the period. It is further stated that while quashing the proceedings against him, this Court had not precluded the respondents from proceeding against the petitioner by issuing a fresh memo of charges and it was in the said circumstances that fresh enquiry proceedings were initiated. It is also stated that the intent of the petitioner is to quash the disciplinary proceedings and to obtain reinstatement so that he could tamper with the records and other evidence. 4. Sri. B. S. Swathi Kumar, the learned counsel appearing for the petitioner submitted that the petitioner is now being placed under suspension on the very same charge levelled against him. These allegations were held to be unsustainable by this Court by Exhibit P1 judgment. It is contended that no fresh allegations have been raised in Exhibit P3. The learned counsel would rely on a decision of this Court in **Surendran K. v Government of Kerala and Others** [2008 (3) KHC 738] and it was argued that it is not a general rule that every employee should be placed under suspension pending enquiry. According to the learned counsel, the object of placing an employee under suspension pending enquiry is to enable the administration to conduct the proceedings smoothly so as to establish the allegations or the charge ``` WP(C) NO. 14092 OF 2021 ``` ``` 6 ``` against the employee. Only if there is material to justify the suspension can the employer resort to such a course. It is further submitted that the suspension order is required to be passed sparingly and only in compelling circumstances. No such circumstances arise in this case, contends the learned counsel. 5. Smt. A. Amrutha Vidyadharan, the learned counsel appearing for respondents 1 and 2 highlighted the severity of accusations levelled against the petitioner. She would point out that the police have conducted a meticulous investigation and a final report was laid. The case is pending trial. It is submitted that the proceeding against the petitioner was quashed by this court for violation of certain statutory formalities. However, full liberty was granted to the Society to initiate fresh proceedings by strictly complying with the provisions of the statute. It was on the strength of the liberty so granted that fresh proceedings were initiated against the petitioner. It is further submitted that in Exhibit P3 order of suspension, the entire aspects of the matter narrated including the need to keep the petitioner under suspension has been stated and the intention of the respondents is to ensure that the petitioner does not interfere with the disciplinary proceedings. 6. I have considered the submissions advanced and have gone through the records. ``` WP(C) NO. 14092 OF 2021 ``` ``` 7 ``` 7. This Court by Exhibit P1 judgment had quashed the proceedings against the petitioner on the ground that it was the disciplinary committee that had issued memo of charges against the petitioner relying on the law laid down in **Kodanchery Co-operative Society’s** case (Supra). While disposing of the matter, this Court had made it clear that rendering of Exhibit P1 judgment will not preclude the Bank from issuing fresh memo of charges against the petitioner and in proceeding with the matter in accordance with the law. It was on the strength of the liberty so granted by this Court that fresh proceedings were initiated against the petitioner. 8. Serious contentions were raised by the learned counsel appearing for the petitioner relying on **Surendran K. V. Govt. of Kerala** (2008(3) KHC 738). In Surendran (supra), a Division Bench of this Court had held that the power to suspend is discretionary and there should be material to justify the suspension. The order should be free from the taint of mala fides, arbitrariness and extraneous considerations. The subjective satisfaction regarding suspension should be based on objective considerations and relevant circumstances. It was also held that if there is no possibility of tampering with the evidence, suspension need not be made. 9. A perusal of Exhibit P3 order of suspension issued by the Managing Committee would reveal that the Committee took note of the fact ``` WP(C) NO. 14092 OF 2021 ``` ``` 8 ``` that the petitioner had actively involved in the misappropriation of a sum of Rs.17,78,498/- from the Society. Criminal proceedings and disciplinary proceedings were pending against him. It is also stated that as the bank is an institution wherein monetary transactions take place, it would be against the interest of the bank to permit the petitioner to take part in the business activities in view of the gravity of the allegations levelled against him. The said decision has been arrived at after satisfying that the presence of the petitioner would be detrimental to the interests of the Bank. 10. In **Director, U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan JT** [1993 Suppl. (3) SCC 483], while overturning the judgment of a Division Bench of the Allahabad High Court revoking the order of suspension, it was held that whether the employees should or should not continue in their office during the period of inquiry is a matter to be assessed by the concerned authority and ordinarily the Court should not interfere with the orders of suspension unless they are passed mala fide and without there being even a prima facie evidence on record connecting the employees with the misconduct in question. When the management committee arrives at a conclusion on the basis of the materials in their possession, no conclusions can be drawn by the Court otherwise. In the case on hand, the petitioner has no case that the order of suspension was passed mala fide and without any ``` WP(C) NO. 14092 OF 2021 ``` ``` 9 ``` prima facie materials. The Supreme Court went on to observe that in cases involving embezzlement of money, it is advisable that the concerned employee is kept out so that they may not be able to perpetrate any further mischief. ## 11. **State of Orissa v. Bimal Kumar Mohanty** [(1994) 4 SCC 126], it was held thus by the Hon’ble Supreme Court. It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on an application of the mind by the disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words, it is to refrain him to avail further opportunity to perpetuate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the ``` WP(C) NO. 14092 OF 2021 ``` ``` 10 ``` action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge. 12. In view of the principles above, an order of suspension pending enquiry is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. The purpose is to prevent the employee from perpetuating the alleged misconduct again. An order of suspension would inure to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away while the enquiry is pending. The imposition of such an order is intended to ensure that the delinquent officer does not scuttle the inquiry or investigation or influence the witnesses. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The public interest of the impact of the delinquent continuing in the office while facing departmental enquiry or trial on the basis of a criminal charge is also a consideration that has to be borne in mind. The Appointing authority or the disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. 13. Having considered the entire facts, on the basis of the principles above, I am of the considered opinion that the entire aspects including the ``` WP(C) NO. 14092 OF 2021 ``` gravity of the allegations and the need to keep the petitioner in suspension were taken note of by the Committee before passing Exhibit P3 order. The said order cannot be said to be mala fide, arbitrary or one passed with ulterior purpose warranting interference by this Court. I am afraid that the petitioner has not made out any grounds for interfering with the impugned order. This Writ petition will stand dismissed. **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` WP(C) NO. 14092 OF 2021 ``` ``` 12 ``` ## **`APPENDIX OF WP(C) 14092/2021`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WPC NO.19884/2020 DATED 22.6.2021 ``` ``` EXHIBIT P2 TRUE COPY OF THE LETTER DATED 30.6.2021 FROM THE PETITIONER TO THE PRESIDENT OF THE 1ST RESPONDENT ``` ``` EXHIBIT P3 TRUE COPY OF THE ORDER NO.475/2021 DATED 7.7.2021 OF THE 2ND RESPONDENT ``` ``` EXHIBIT P4 TRUE COPY OF THE MEMORANDUM OF CHARGE NO.731/19 DATED 13.5.2019 ISSUED BY THE 4TH RESPONDENT ``` ## **`RESPONDENT EXHIBITS`** ``` EXHIBIT R2(a) A TRUE COPY OF THE REPORT OF THE VADAYAR UNIT INSPECTOR DATED 27.03.2019 ``` ``` EXHIBIT R2(b) A TRUE COPY OF THE APPLICATION FILED AS ARC NO.36/2019 BEFORE THE CO-OPERATIVE ARBITRATION COURT ``` ``` EXHIBIT R2(c) A TRUE COPY OF THE OFFICE ORDER SHOWING THAT THE PETITIONER JOINED SERVICE AND WAS ALSO ASSIGNED DUTY ``` ``` EXHIBIT R2(d) A TRUE COPY OF THE ACQUITTANCE ROLL PAYING AMOUNTS IN COMPLIANCE OF EXT.P1 JUDGMENT. ```