Krishna Kumar K.R. v. Brahmamangalam Gramaswraj Service Co-operative Bank Ltd. No. 2966, Brahmamangal am P.O., Kottayam, and others

``` CR ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 24[TH] DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, ``` ``` 1944 ``` ## **`WP(C) NO. 33296 OF 2022`** ## **`PETITIONER:`** ``` KRISHNA KUMAR K.R. AGED 43 YEARS KRISHNA BHAVAN, BRAHMAMANGALAM.P.O,KOTTAYAM, SENIOR CLERK(UNDER SUSPENSION), BRAHMAMANGALAM GRAMASWARAJ SERVICE CO-OPERATIVE BANK LTD.NO.2966, BRAHMAMANGALAM.P.O, KOTTAYAM. BY ADVS. B.S.SWATHI KUMAR ANITHA RAVINDRAN HARISANKAR N UNNI NAVVYA UNNI ``` ## **`RESPONDENTS:`** - `1 BRAHMAMANGALAM GRAMASWARAJ SERVICE CO-OPERATIVE BANK LTD. NO. 2966 BRAHMAMANGALAM.P.O, KOTTAYAM, PIN-686614, REPRESENTED BY ITS SECRETARY.` - `2 THE MANAGING COMMITTEE OF THE BRAHMAMANGALAM, GRAMASWARAJ SERVICE CO-OPERATIVE BANK LTD.NO.2966, BRAHMAMANGALAM.P.O, KOTTAYAM, PIN-686614, REPRESENTED BY ITS PRESIDENT.` - `3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), CIVIL STATION, KOTTAYAM-686001.` **W.P (C) No.33296/22** **==> picture [20 x 8] intentionally omitted <==** ## `SMT.PARVATHY.K.- GP` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P (C) No.33296/22** ..3.. ## **JUDGMENT** This Writ Petition is a virtual sequel to WP(C) No.29433/2022, earlier filed by the petitioner; and which ended in Ext.P3 judgment. 2. The afore said Writ Petition was filed by the petitioner when he was placed under suspension for a period exceeding one year by the respondent Society; and he assailed it, asserting that it is in violation of Rule 198(6) of the Kerala Co-operative Societies Rules ('KCS Rules' for short). 3. Finding favour with the petitioner's contentions, Ext.P3 judgment was delivered, holding that the action of the Society in continuing the petitioner under suspension for a period of one year continuously, without the prior permission from the Statutory Authority, was in error. It was also noticed in the said judgment that, though the Society had applied for such a permission from the jurisdictional Statutory Authority, it was granted only subsequent to one year having elapsed from the date of initial suspension of the petitioner; and it was hence declared that, as per Rule 198(6) of the “KCS Rules”, he **W.P (C) No.33296/22** ..4.. could no longer be subjected to the continued rigour of suspension. While parting, this Court had also granted permission to the Society to initiate any action as may be necessary against the petitioner, however, as per law. 4. Presumably, under the sanction of the afore liberty, the Society has now issued Ext.P4 order, placing the petitioner again under suspension; and he contends that this is in egregious violation of the holdings in Ext.P3 judgment and contrary to the mandate of Rule 198(6) of the “KCS Rules”. 5. I have heard Sri.B.S.Swathi Kumar – learned counsel for the petitioner; Smt.Amrutha Vidyadharan, learned counsel appearing for the respondent Society; Smt.Parvathy.K – learned Government Pleader appearing for the official respondents; and Sri.Jacob.P.Alex, Amicus Curiae. 6. Noticing the importance of the question raised in this case, I had requested Sri.Jacob P. Alex – learned counsel of this Court, to assist me as an 'Amicus Curiae' and he has filed a detailed Note, putting forth his opinion in the manner. **W.P (C) No.33296/22** ..5.. 7. The essential question in this case is whether the Society, could have suspended the petitioner afresh, after Ext.P3 judgment had been delivered; and interestingly, both the rival parties edificed their contentions on Rule 198(6) of the “KCS Rules”. 8. While B.S.Swathi Kumar – learned counsel for the petitioner, asserts that, going by the afore Rule, no fresh order of suspension could have been issued by the Society, since it would transgress the one year period mentioned therein; Smt.Amrutha Vidyadharan – learned counsel for the Society, argued to the contrary, explaining that the afore Rule only prohibits the Society from continuing a person under suspension for one year period, but not that they cannot issue a fresh order of suspension after that limit. 9. Pertinently, the specific contention of Smt.Amrutha Vidyadharan was to the effect that, even though her client had obtained permission from the statutory Authority to continue the suspension of the petitioner beyond one year, this Court had found against them in Ext.P2 for no fault of theirs, but **W.P (C) No.33296/22** ..6.. solely because said Authority had granted such permission beyond that period, though effective from a retrospective date. She pointed out from Ext.P2, that this Court had only concluded that the grant of permission by the Authority from a retrospective date was without legal force; and that it is solely in such circumstances that the suspension of the petitioner was quashed. She thus vehemently argued that Ext.P4 is without error and prayed that this writ petition be dismissed. 10. Sri.Jacob Alex - learned Amicus Curiae, brought to my attention several judgments, including _**Chandramathi v. Vadakkumpad Service Co-operative Bank**_ [1998(2) KLT SN 37 (Case No.44)]; _**Leelamma v. Kerala State Co-operative Rubber Marketing Federation**_ [2008(2) KLT 608]; _**Indrasenan v. Joint Registrar**_ [2009(2)KLT 599] and _**Ajay Kumar Choudhary v. Union of India**_ [(2015) 7 SCC 291], in support of his opinion that Ext.P4 is in error and that petitioner could not have been placed under a fresh round of suspension, after this Court had delivered Ext.P3 judgment finding that such continuation was impermissible. He then cited _**Taylor v.**_ **W.P (C) No.33296/22** ..7.. _**Taylor**_ (1875) LR 1 Ch D 426) to assert that if a Rule requires something to be done in a particular manner, it should be done either in the same manner or not at all; and showed me that this Principle has been followed by the Hon'ble Supreme Court in various judgments, including _**Dharani Sugar & Chemicals v. Union of India**_ [(2019) 5 SCC 480]; _**Public Interest Foundation v. Union of India**_ [(2019) 3 SCC 224]; _**Municipal Corporation of Greater Mumbai v. Abhilash Lal**_ [(2020) 13 SCC 234] and _**UP v. Singhara Singh**_ [AIR 1964 SC 358]. 11. Sri.Jacob P. Alex then went on to predicate that the unmistakable tenor of the expression “prior approval” in Rule 198 (6) of the KCS Rules makes it evident that such approval is compulsory and that it is different from “approval” simpliciter. He further explained that the provisions of Rule 198(6) of the KCS Rules is concluded in a negative phraseology, which is indicative of the fact that it is to be followed strictly in the prescribed manner and cited _**Hussein Ghadially v. State of Gujarat**_ [(2014) 8 SCC 425] in substantiation. **W.P (C) No.33296/22** ..8.. 12. Sri.Jacob P. Alex thus impelled his firm opinion that, after the period of completion of one year continuous suspension, it will come to an end by operation of law, unless “prior approval” of the Registrar is obtained; and that this cannot be saved even by a subsequent ratification by said Authority. He concluded saying that, therefore, when no such “prior approval” had been granted by the competent Authority to allow continuation of the petitioner on suspension beyond one year period, it would be anachronistic to approve the said action after such period, citing it to be a fresh round of suspension, particularly if it is edificed on the same set of allegations, as has been shown in this case. 13. When one examines Rule 198 (6) of the “KCS Rules”, it becomes manifest that it is intended for the benefit of the employee, to ensure that he/she is not continued under suspension _ad infinitum._ The way the said Rule is phrased, would make this indubitable; and hence, for its reading, I extract _ut infra_ : “ _Rule 198(6): An authority competent to appoint an employeee may suspend him pending enquiry into_ **W.P (C) No.33296/22** ..9.. _serious charges against such employee. No employee shall however be kept under suspension for a period exceeding six months at a time. In no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar.[An employee under suspension shall be entitled to susbsitence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972(27 of 1973)]_ _[Provided that an employee not coming under the purview of the Kerala Payment of Subsistence Allowance, Act, 1972(27 of 1973) shall be entitled to subsistence allowance at the rate admissible to State Government Employees as prescribed under the Kerala Service Rules]_ ” 14. Testing the afore provisions from the specific facts of this case, the petitioner was originally placed under suspension for six months by the Society and then continued in such position for another six months, within which time, they had applied to the competent statutory Authority for permission to continue him in such status further. However, the statutory Authority did not grant permission until much after the one year period had expired and then issued an order, allowing it to operate from a retrospective plate. It was this order which was challenged by the petitioner in the first round of litigation, which culminated in Ext.P3 judgment, wherein, this Court held unequivocally that such an order would not be protected in **W.P (C) No.33296/22** ..10.. law, particularly, when the specific tenor of the Rule is to the effect that no employee could have been continued under suspension beyond a continuous period of one year, unless “prior approval” of the Authority had been obtained. As said above, the Society was, however, allowed to continue with the disciplinary action against the petitioner, which the learned Amicus Curiae also submits was permissible, except that he ought to have been reinstated in service, pending such proceedings. 15. In the afore context, when one examines the present action of the Society in having issued Ext.P4, it is perpicuous that they are attempting to do what they could not do directly, through an indirect modus. This is because, when this Court has already quashed the continuance of the petitioner under suspension for want of “prior approval” of the statutory Authority, issuance of a fresh order - as if it is a new spell of suspension - would be hit by the sweep of Rule 198 (6) of the “KCS Rules”. To hold otherwise, would forge a scenario where a Society would be empowered to place the employee **W.P (C) No.33296/22** ..11.. under suspension for one year and then to issue fresh order after a day, asserting it to be a new action, even with the same set of allegations projected. 16. That said, hypothetically, had this been a case where the second suspension order was based on a different set of allegations, perhaps, this Court would have considered it in another light; but it being affirmately conceded to be not, I do not think it is necessary for this Court to answer the same in any manner whatsoever. 17. The conspectus of my observations above renders it irresistable that Ext.P4 cannot find jural favour, though the Society can certainly continue with the disciplinary action against the petitioner, after he is reinstated in service. 18. It is also needless to say that none of my observations in this judgment or in Ext.P2 would trammel or prejudice the rights of the Society to proceed against the petitioner to the fullest warrant of law as per the applicable procedure, and hence, there cannot be a case of prejudice for the Society either. **W.P (C) No.33296/22** ..12.. 19. Before I part, I certainly must place my deepest commendation for Sri.Jacob.B.Alex for the incisive manner in which he has dealt with the issues impelled in this case and for the assistance offered, without which, it would have been difficult for this Court to enter into an opinion as easily as has been done now. In the result, this writ petition is allowed and Ext.P4 is set aside; however, with the afore clarification. Sd/- ## **DEVAN RAMACHANDRAN, JUDGE** ACR **W.P (C) No.33296/22** ..13.. ## **`APPENDIX OF WP(C) 33296/2022`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE ORDER NO.475/2021 DATED 7-7-2021 OF THE 2ND RESPONDENT. Exhibit P2TRUE COPY OF THE ORDER NO.EM(2)2007/2022 DATED 11-8-2022 OF THE 3RD RESPONDENT. Exhibit P3TRUE COPY OF THE JUDGMENT IN W.P(C)NO.29433/2022 DATED 28-9-2022. Exhibit P4TRUE COPY OF THE ORDER NO.253/2022 DATED 10-10-2022 OF THE 1ST 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 Common Judgment passed in W.P.(C) No.19884 of 2021 and 6133 of 2021 by this Hon'ble Court Exhibit R2(d)A true copy of judgment passed in W.P. (C) No.14092 of 2021 Exhibit R2(e)A true copy of judgment passed in W.A.No.386/2022. Exhibit R2(f)A true copy of the order dated 11/08/2022 sanctioning to extend the period of suspension from 07/07/2022. Exhibit R2(g)A true copy of Judgment passed in W.P. (C) No.29433 of 2022 dated 28/09/2022. ```