High Court of KeralaSingle Judge2021-07-05Writ petition allowed; Ext.P3 set aside; Ext.P2...

M. Radhakrishnan (deceased) (Legal Heir) and others v. Secretary, Kannamk ul am Co-operative Bank Ltd., The President Kannamk ul am Co-operative Urban Bank Ltd., and The Kerala Co-operative Tribunal

Case / Petition Number:WP(C) No. 4404 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
Judgment Date: 2021-07-05
Court Decision / Holding: Writ petition allowed. Ext. P3 (common tribunal judgment) and the related conclusions set aside. Ext. P2 (Arbitration Court award) is upheld, and the petitioner is treated as having voluntarily retired in the circumstances described. The decision effectively restores the dismissal but grants relief by recognizing voluntary retirement in lieu of continued service.
Final Disposition: Writ petition allowed; Ext.P3 set aside; Ext.P2 upheld; petitioner treated as voluntarily retired; depending on the record, the relief grants validity to the voluntary retirement in lieu of ongoing inquiry.

Parties to the Case

Appellants / Petitioners

M. Rad h a d h r i s h na n ( d e c e a s e d) (Legal Heir) S/O Raghava Menon, Puthi yedath House, Tholoor, Thrissur
J. Vijayalakshmi W/o Late M. Radhakrishnan, Puthiyedathu House, Tholur PO, Thrissur District-680552
P. Rekha W/o Deepak Menon, Padmaragam, Peramangalam, Thrissur District
Roopa W/o Sarath Sukumaran, Residing at Puthiyedathu House, Tholur PO, Thrissur District
P. Reshma D/o Late M. Radhakrishnan, Puthi yedath u House, Tholur PO, Thrissur District

Respondents

The Secretary, Kannamk ul am Co-operative Bank Ltd., No.698, Kannamk ul am, Thrissur 680503
The President, Kannamk ul am Co-operative Urban Bank Ltd., No.698, Kannamk ul am, Thrissur 680503
The Kerala Co-operative Tribunal, Thiruvananthapuram 695001

Legal Representation & Advocates

Counsels for Petitioners

• Sri B.S. Swathy Kumar
• Smt. Anitha Ravindran
• Sri Ashish Mohan
• Sri O.A. Anju
• Smt. P.S. Bhagya Surabhi
• Sri Harisankar N Unni
• Sri A.K. Rajesh
• Sri Remya Murali

Counsels for Respondents

• Sri P.C. Sasidharan
• Sri P.C. Sasidharan

Case Synopsis & Summary

This writ petition arises from a challenge to an arbitration award and a common tribunal judgment concerning the alleged misappropriation of funds while the petitioner served as Secretary of the Kannamk ul am (Kannamk ul am) Co-operative Bank. The petitioner, initially a Junior Clerk, was suspended in 2004 and faced allegations of misappropriation. An Administrator, appointed after the bank’s managing committee tenure ended, spent funds without proper vouchers, and a disciplinary process was initiated by a Sub-Committee. There was no formal appointment of an Enquiry Officer, and the proceedings appeared to be conducted in parallel by the President, with limited coordination with the Sub-Committee. The Arbitration Court set aside the suspension and dismissal, and allowed the petitioner to retire voluntarily, citing irregularities in the procedure and non-compliance with Rule 198 of the Co-operative Societies Rules. Appeals (No. 33/2013 and 44/2013) followed, with a common judgment on 26.11.2013, wherein one appeal was allowed and the other dismissed, effectively setting aside Ext.P2. The petitioner contended that natural justice was violated, including lack of a charge copy, non-service of documents, and opportunity to cross-examine witnesses. The High Court, however, distinguished prior authority and ultimately allowed the writ petition in light of due-process concerns, directing that Ext.P3 be set aside and Ext.P2 upheld with the petitioner treated as voluntarily retired.

Provisions of Law Cited

Rule 198 of the Co-operative Societies RulesRule 198(2A) of the Co-operative Societies Rules

Legal Doctrines & Maxims

Principles of natural justice
Due process

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that no proper procedure under Rule 198 of the Co-operative Societies Rules was followed, with no designated enquiry officer and no proper cross-examination opportunities; the Sub-Committee’s determination and the subsequent parallel proceedings by the Administrator violated natural justice; the petitioner was not served with the charge or documents relied upon, causing hardship. They argue that the admission of guilt cannot bypass prescribed procedures, especially since a new Administrator was appointed when the alleged misappropriation occurred, and there was no adequate opportunity to defend during a regular enquiry. They rely on Jose Philip v. Thodupuzha Taluk Co-operative Rubber Marketing Society (2018) (3) KLT 251 to support their position that due process was not observed.

Contentions of Respondents

The respondents defend the procedure, asserting there was admission of guilt evidenced by letters and notices (e.g., Exts. R1(a), R1(c), R1(d)). They argue that a Disciplinary Sub-Committee conducted a proper inquiry with substantial opportunities and that the order of dismissal was issued by a competent authority. They assert Rule 198 and its sub-rule 2A were followed, with the conclusions consistent with the evidence, and that the Arbitration Court’s concerns were not fatal to the validity of the process. They contend that the petitioner's admission and subsequent actions by the new committee established a fair process under the rules and that the tribunal’s reasoning should be upheld.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Jose Philip v. Thodupuzha Taluk Co-operative Rubber Marketing Society	(2018) 3 KLT 251	Distinguished	The court held that the ratio in Jose Philip was not applicable here because, unlike the cited case, there was a constitution of a disciplinary committee or required procedures were not properly followed in the current matter; hence the cited case was distinguished.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943** ## **WP(C) NO. 4404 OF 2014** ## **PETITIONER/S:** 1 M.RADHAKRISHNAN (DECEASED),(Legal Heir) S/O.RAGHAVA MENON,PUTHIYEDATH HOUSE,THOLOOR,THRISSUR 2 SUPPL.P2.J.VIJAYALAKSHMI , W/O LATE M.RADHAKRISHNAN, PUTHIYEDATHU HOUSE, THOLUR PO, THRISSUR DISTRICT-680552. 3 SUPPL.P3. P.REKHA , W/O DEEPAK MENON, PADMARAGAM, PERAMANGALAM, THRISSUR DISTRICT. 4 SUPPL.P4. ROOPA , W/O SARATH SUKUMARAN, RESIDING AT PUTHIYEDATHU HOUSE, THOLUR PO, THRISSUR DISTRICT. 5 SUPPL.P5. P.RESHMA , D/O LATE M.RADHAKRISHNAN, PUTHIYEDATHU HOUSE, THOLUR PO, THRISSUR DISTRICT. (SUPPLEMENTAL PETITIONERS ARE IMPLEADED AS PER ORDER DATED 29/11/2018 IN IA.14378/2018) BY ADVS. SRI.B.S.SWATHY KUMAR SMT.ANITHA RAVINDRAN SRI.ASHISH MOHAN SRI.O.A.ANJU SMT.P.S.BHAGYA SURABHI SRI.HARISANKAR N UNNI SRI.A.K.RAJESH SRI.REMYA MURALI **2** ## **WP(C) NO. 4404 OF 2014** ## **RESPONDENT/S:** 1 THE SECRETARY, KANNAMKULAM CO-OPERATIVE BANK LTD. NO.698, KUNNAMKULAM THRISSUR 680 503. 2 THE PRESIDENT KUNNAMKULAM CO-OPERATIVE URBAN BANK LTD NO 698,KUNNAMKULAM THRISSUR 680 503 3 THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM 695 001 BY ADVS. SRI.P.C.SASIDHARAN SRI.P.C.SASIDHARAN ## **OTHER PRESENT:** GP SRI B HARISH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.06.2021, THE COURT ON 5.7.2021 DAY DELIVERED THE FOLLOWING: **WP(C) NO. 4404 OF 2014** **3** ## **JUDGMENT** Challenge has been laid to orders Exts.P2 and P3, ie., the award in ARC No.30/2011 dated 22.2.2013 of the Cooperative Arbitration Court, Kozhikode and common judgment in Appeal Nos.33/2013 and 44/2013 dated 26.11.2013. 2. The facts leading to filing of the writ petition are that the petitioner was initially appointed as Junior Clerk, thereafter, promoted as Senior Clerk and then to the post of Accountant. While working as Accountant in the Kunnamkulam Co-operative Urban Bank Ltd., he was assigned the charge of Secretary till 4.6.2004. On the said date he was served with an order of suspension from service and thereafter served with a notice alleging misappropriation of the funds ,which, was duly replied. 3. Respondents 1 and 2 did not accept the reply and decided to conduct an enquiry by the Sub Committee. The **WP(C) NO. 4404 OF 2014** **4** petitioner was summoned to appear for enquiry before the committee though no enquiry officer was appointed. During the period of alleged misappropriation, the tenure of managing committee of the Bank was over and an Administrator was appointed in its place. Various amount was spent as per the order of the Administrator without issuing any vouchers and the petitioner was made a scapegoat. Thereafter the petitioner was served with a showcause notice on the basis of the enquiry conducted by the sub committee dated 11.4.2005 which was duly replied on 19.4.2005 resulting into dismissal on 30.4.2005 which was assailed before the Arbitration Court. The Arbitration Court vide order Ext.P2 dated 22.2.2013 considering the material on record noticed that the Bank had not properly followed the provisions of Rule 198 of the Co-operative Societies Rules and no enquiry officer was appointed and a parallel proceeding was conducted by the President much less there were no co-ordination between the Disciplinary SubCommittee and the proceedings taken by the President , **WP(C) NO. 4404 OF 2014** **5** resultantly, set aside the orders of suspension and dismissal and allowed petitioner to retire voluntarily from the services of the Bank 4. Against the aforementioned order two Appeals bearing No.44/2013 and 33/2013 were filed by the petitioner and the Management respectively. On 26.11.2013 the Tribunal passed a common judgment allowing appeal No.33/2013 and dismissed appeal No.44/2013 ultimately set aside Ext.P2 order. 5. Learned counsel appearing on behalf of the petitioner in support of the writ petition has raised the following submissions: - i. No proper procedure as envisaged under Rule 198 of - the Co-operative Societies Rules was followed - ii.No enquiry officer was appointed, nor any enquiry was conducted and that the Chairman of the Subcommittee decided on his own that the petitioner was guilty. iii.The petitioner was not given any chance to cross **WP(C) NO. 4404 OF 2014** **6** examine the witnesses nor any adherence or reference of the said witnesses. - iv.The alleged admission of the guilt cannot permit the authorities to bypass the rules or procedure prescribed as it was under a caution. - v.The authorities were required to go into the defence of the petitioner regarding the fact that during the period of alleged misappropriation new Administrator was appointed as the tenure of managing committee of the Bank was over. - vi. The petitioner was not served with the copy of the charge and copy of all documents relied upon, _resulting into much hardship_ , suffering and amounted to violation of the principles of natural justice. 6. In support of the aforementioned contentions, the judgment of this Court in **Jose Philip v. Thodupuzha** ## **Taluk Co-operative Rubber Marketing Society (2018** - **(3) KLT 251)** has been relied. **WP(C) NO. 4404 OF 2014** **7** 7. Counsel representing the respondents supported Ext.P3 judgment in Appeal on the premise that the petitioner had admitted the guilt as evidenced from Ext.R1(a ) and R1(c). On 21.6.2004 a memo was given by the Administrator to the petitioner for which he acknowledged and admitted the guilt, Ext.R1(d). The newly elected the committee had taken the charge on 27.6.2004. A Disciplinary Sub Committee and two other members was constituted by the newly elected board to enquire into the matter which resulted into an issuance of a notice dated 30.11.2004 to appear before the Sub Committee on 10.12.2004. The petitioner acknowledged the receipt of the same and without any objection participated in the enquiry. The Sub Committee conducted an enquiry into the charges by giving sufficient opportunity in the enquiry and on 30.4.2005 passed the order of dismissal. The Arbitration Court could not have ignored the misappropriation by taking the aid of non-adherence of Rules 198 as Sub Rule 2A also envisages the constitution of the Sub Committee to **WP(C) NO. 4404 OF 2014** **8** hold the enquiry at their level which has been adhered to and order of dismissal was also passed by the competent authority and thus reiterating the order of Ext.P3 urged this Court for dismissal of the writ petition. 8. I have heard the learned counsel for the parties and appraised the paper book. At the outset, the judgment cited pertains to a case where there was no constitution of committee or service of any charge sheet upon the delinquent employee. Thus, the ratio in the aforementioned judgment would not be applicable. Coming to the facts as aforementioned, it is a matter of record that the petitioner was suspended in June 2004 by the earlier disciplinary authority wherein certain alleged admissions have been taken aid of but the fact of the matter is the newly elected committee as per the stand in the counter had taken charge on 27.6. 2004 and sufficient opportunity of hearing was given on 30.11.2004. After the Sub Committee had found the petitioner to be guilty, the petitioner was again served with a show cause notice on 11.4.2005 which was duly **WP(C) NO. 4404 OF 2014** **9** replied on 19.4.2005 resulted into dismissal on 30.4.2005. However, the reply is bereft of any material, whether the newly elected committee had examined the witnesses and given an opportunity to the petitioner to cross examine. It is also intriguing as to whether any Enquriy Officer or assistance of any external agency was taken. The documents so relied upon to arrive at a just and equitable finding of misappropriation have to be confronted and given a chance to rebut, in accordance with law. All the sufficient materials are conspicuously absent in the counter nor have been placed on record during the writ petition remained pending. It is not a case of the judgment on admission where the petitioner had admitted his guilt resulting into deposit, the disciplinary committee had done away with holding of regular enqiry. Rule 198 2A do not envisage such a situation. The principle of justice therefore has not been adhered to. It was a farcical exercise in issuing show cause, seeking reply and then again for the purpose of granting a personal hearing with regard to the punishment, the **WP(C) NO. 4404 OF 2014** **10** procedure can be said to have been followed. This Court cannot remain unmindful of the fact that the petitioner in one of the contents of letter had sought voluntary retirement. Though in the present writ petition order Ext.P2 treating the petitioner who have been voluntarily retired has also been assailed. The fact remains that the petitioner had admitted the guilt and deposited the money but in the absence of any regular enquiry, I deem it appropriate to set aside the order Ext.P3 and uphold the order Ext.P2 by treating the petitioner to have been voluntarily retired. The writ petition is allowed in terms of the aforementioned observations. Sd/- sab **AMIT RAWAL** **JUDGE** **WP(C) NO. 4404 OF 2014** **11** ## **APPENDIX OF WP(C) 4404/2014** PETITIONER ANNEXURE EXHIBIT P1 TRUE COPY OF THE REPLY FILED BY THE PETITIONER BEFORE THE CHAIRMAN OF THE DISCIPLINARY COMMITTEE DATED 19-042005 - EXHIBIT P2 TRUE COPY OF THE AWARD IN ARC 30/2011 DATED 22-02-2013 OF THE COOPERATIVE ARBITRATION COURT,KOZHIKODE - EXHIBIT P3 TRUE COPY OF THE COMMON JUDGMENT IN APPEAL NOS 33/2013 AND 44/2013 OF THE 3RD RESPONDENT DATED 2611-2013 - EXHIBIT R1 TRUE COPY OF THE LETTER DATED 04/06/2004 SUBMITTED BY THE PETITIONER TO THE ASSISTANT REGISTRAR, THALAPPALLY. - EXHIBIT R1 TRUE COPY OF THE COMMUNICATION DATED 04/06/2004. - EXHIBIT R1 TRUE COP0Y OF THE SAID LETTER DATED 05/06/2004. - EXHIBIT R1 TRUE COPY OF THE LETTER DATED 23/06/2004. - EXHIBIT R1 TRUE COPY OF THE SAID NOTICE DATED 30/11/2004. - EXHIBIT R1 TRUE COPY OF THE SHOW CAUSE NOTICE. - EXHIBIT R1 TRUE COPY OF THE ORDER IMPOSING PUNISHMENT. - EXHIBIT R1 TRUE COPY OF THE NOTICE OFFERING PERSONAL HEARING. **WP(C) NO. 4404 OF 2014** **12** |EXHIBIT R1|TRUE COPY OF THE SUBMISSION MADE BY THE| |---|---| ||PETITIONER DURING HEARING OF THIS| ||APPEAL.| |EXHIBIT R1|TRUE COPY OF THE ORDER PASSED IN HIS| ||APPEAL.| |EXHIBIT R1|TRUE COPY OF THE ENQUIRY REPORT.|