M.J. Thomas and Others v. Registrar of Co-operative Societies, Thiruvananthapuram and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 6[TH] DAY OF OCTOBER 2022 / 14TH ASWINA, 1944** ## **WP(C) NO. 32470 OF 2010** ## **PETITIONERS:** 1 M.J.THOMAS (RETIRED EXECUTIVE OFFICER, KOTTAYAM DISTRICT, COOPERATIVE BANK), KALAYIL HOUSE, VALACHIRA, KADUTHURUTHY P.O., KOTTAYAM DISTRICT. 2 J.GEORGE (RETIRED EXECUTIVE OFFICER, KOTTAYAM DISTRICT, COOPERATIVE BANK), KURICHIAPARAMBIL, VELLASSERY, KADUTHURUTHY P.O., KOTTAYAM DISTRICT. 3 A.V.THOMAS (RETIRED BRANCH MANAGER, KOTTAYAM DISTRICT, COOPERATIVE BANK), AERATHEDATHU HOUSE, PONTHAMPUZHA P.O., KARIKKATTOOR,, KOTTAYAM DISTRICT. 4 SMT. MARY KURIAN (RETIRED BRANCH MANAGER, KOTTAYAM DISTRICT, COOPERATIVE BANK), MUTTAMTHARAPPADICKAL,PARAMPUZHA, KOTTAYAM-32. 5 SMT.S.LEKSHMIKUMARI (RETIRED BRANCH MANAGER, KOTTAYAM DISTRICT, COOPERATIVE BANK), VELUTHEDATHU PARAMBU HOUSE,, UDAYANAPURAM P.O., VAIKOM, KOTTAYAM DISTRICT. 6 SMT.ROSAKUTTY MATHEW (RETIRED BRANCH MANAGER, KOTTAYAM DISTRICT, COOPERATIVE BANK), THENIPLACKAL HOUSE, S.N.PURAM P.O., PAMPADY, KOTTAYAM DISTRICT. WP(C) NO. 32470 of 2010 2 7 SMT. GRACEAMMA PAUL (RETIRED EXECUTIVE OFFICER, KOTTAYAM DISTRICT, COOPERATIVE BANK), KOLAKODATHU HOUSE, SOUTH GATE P.O., VAIKOM, KOTTAYAM DISTRICT. 8 E.J.KURIACHAN (RETIRED BRANCH MANAGER, KOTTAYAM DISTRICT, COOPERATIVE BANK), ELAYANITHOTTATHIL HOUSE, KUDAKKACHIRA, PIN-686 635, KOTTAYAM DISTRICT. 9 ASHOK KUMAR P. (RETIRED BRANCH MANAGER, KOTTAYAM DISTRICT, COOPERATIVE BANK), MEDACKAL HOUSE, KARUKACHAR P.O., KOTTAYAM DISTRICT. 10 SABU SEBASTIAN EXECUTIVE OFFICER, KOTTAYAM DISTRICT CO-OPERATIVE, BANK, ERATTUPETTA MAIN BRANCH, ERATTUPETTA P.O., PALA, RESIDING AT VADASSERIL HOUSE, T.B.ROAD,, KANJIRAPPALLY P.O., KOTTAYAM DISTRICT. - 11 K.J.ROSA EXECUTIVE OFFICER, KOTTAYAM DISTRICT CO-OPERATIVE, BANK, ETTUMANOOR MAIN BRANCH, ETTUMANOOR P.O., RESIDING AT PULICKAPARAMBIL HOUSE, MANJOOR P.O., KURUPPANTHARA, KOTTAYAM DISTRICT. BY ADV SRI.SAJU JOHN ## **RESPONDENTS:** - 1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM. PIN - 695 035 - 2 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOTTAYAM. 686 001 - 3 THE KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., KOTTAYAM, REPRESENTED BY ITS GENERAL, MANAGER, PIN-686 001. WP(C) NO. 32470 of 2010 3 4 ADDL.R4: THE KERALA STATE CO-OPERATIIVE BANK LIMITED, (KERALA BANK) REPRESENTED BY ITS MANAGING DIRECTOR, POST BOX NO.6515, COBANK TOWERS, PALAYAM, THIRUVANANTHAPURAM-695 033. (IS IMPLEADED AS PER ORDER DATED 27-09-2022 IN IA 1/2020) BY ADV SRI.T.A.SHAJI ## **OTHER PRESENT:** GP K.M. FAISAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 32470 of 2010 4 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C) No.32470 of 2010 -------------------------------------Dated this the 6[th] day of October, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers:- _“i) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P10 order and quash the same to the extent it declined retrospective effect to approve the decision of the 3[rd] respondent Bank to change the staff pattern._ _ii) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P13 and similar notices issued to the petitioners 2 to 11 and quash them._ WP(C) NO. 32470 of 2010 5 _iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1[st] respondent to consider and pass appropriate order on Ext.P11 representation as expeditiously as possible and at any rate within a time limit to be fixed by this Hon’ble Court and direct the 3[rd] respondent not to take any action pursuant to Ext.P13 and similar notices till such a decision is taken by the 1[st] respondent._ _iv) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3[rd] respondent to refund the amount recovered from the petitioners 2 & 8 as evidenced by Exts.P14 and P15 within 12% interest. v) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3[rd] respondent to disburse the entire terminal benefits due to the petitioners 1, 3_ WP(C) NO. 32470 of 2010 6 _to 7 and 9 with interest at the rate of 12$ per annum forthwith._ 2. The petitioners 1 to 9 are retired employees of the 3[rd] respondent Bank and the petitioners 10 & 11 are working as Executive Officers in the Bank at the time of filing the writ petition and now the petitioners 10 & 11 have already retired from service. Considering the increase in the business and opening of 9 new branches the 3[rd] respondent Bank, on 27.10.2005, decided to change the staff pattern of the Bank. Pursuant to the change of staff pattern, the petitioners were promoted to higher posts as per Exts.P2 to P7 orders. The Bank applied for approval of change of staff pattern and the 1[st] respondent, as per Ext.P10 order, has accorded sanction to the change of staff pattern. In Ext.P10, it is stated that the change of staff pattern would be having effect only from 16.07.2007. In Ext.P12 audit report, for the year 20072008, the auditor objected the salary given to the petitioner in the promoted post. On the basis of the objection the Bank decided to recover the salary paid to the petitioner in the promoted post. WP(C) NO. 32470 of 2010 7 Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the 1[st] and 2[nd] respondents. 4. When this writ petition came up for consideration, the learned counsel on both sides submitted that the issue in this writ petition is covered in favour of the petitioner in judgment dated 23.08.2016 in W.P.(C) No.4200/2009. The relevant portion of the judgment is extracted herein below:- _“9. The prime contention advanced by learned Senior Counsel in W.P.(C) No.4200 of 2009 is that, petitioners have not in any manner contributed to their promotions and receipt of the salary in the promoted post. Promotions were provided by the Bank and they have worked in accordance with the directives issued by the Bank. According to the learned Senior Counsel, Bank had to promote the petitioners consequent to opening of several branches, and in order to discharge the duties effectively in the branches, necessary promotions had to be made by the Bank. They have continuously worked in the post and in terms of the Rules they_ WP(C) NO. 32470 of 2010 8 _have received salary while occupying the said posts, which they are entitled to get as of right. It is also contended that, the respondents are not having a case that petitioners have received any salary in excess of what they are entitled to while holding the said posts._ _10. Learned Senior Counsel has also invited my attention to the judgment of the Apex Court in 'State of Punjab v. Rafiq Masih' [2015 (1) KLT 429 SC] and specifically to paragraph 12, wherein several parameters are provided in the matter of recovery of salary. The finding with respect to clause (iv) thereunder, according to the learned Senior Counsel, is vital and important with respect to the facts and circumstances in the case on hand. Clause (iv) of paragraph 12 read thus:_ _“12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the_ _(i) x x x x x x x x_ _(ii) x x x x x x x x_ _(iii) x x x x x x x x_ WP(C) NO. 32470 of 2010 9 _(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post”._ _11. Therefore, on a perusal of the said finding, it is categoric and clear that petitioners were promoted by the Bank and they have discharged their duties in the promoted post and received salary in accordance with the Rules provided under law. Therefore, according to the learned Senior Counsel, so far as the petitioners are concerned, they areinnocent in the matter. If at all the Bank had to secure priorapproval from the Bank, the Bank had to pass a resolution, the same was done by the Bank and forwarded to the Registrar. However, while the the same was granting approval, grantedonly from the date of Ext.P5 order. However, learned Government Pleader contended that the appointment can be made only after the approval provided by the Registrar. Taking note of these circumstances and also of the fact were and thatpetitioners promoted appointed consequent to opening up of branches, there were_ WP(C) NO. 32470 of 2010 10 _dearth of staff, and inorder to man the activities in the branches, necessary promotions had to be made._ _12. In that view of the matter, I am of the considered opinion that since the petitioners have worked continuously and discharged their duties, recovery of salary at a belated stage may not be conducive to the facts and circumstances ofthe case. In that view of the matter, Exts.P8 to P10 orders are set aside and hold that even though in Ext.P7 audit report,payment of salary in excess, for want of approval was directed,cannot be legally sustained. Therefore, Ext.P7 so far as concerning recovery of excess salary from the petitioners will not have any consequence at all._ _13. In view of the decision rendered by me, with respect to the action initiated against the petitioners in W.P.(C)No.4200 of 2009 and quashed Exts.P8 to P10, petitioners in W.P.(C) No.4513 of 2010 are given the liberty to file objection to Exts.P7 and P9 by producing this judgment and canvass for the proposition that they are not liable to be proceeded with under Sec.68 of the Kerala Co-operative Societies Act._ WP(C) NO. 32470 of 2010 11 _14. It is also clear from the discussions made above, since petitioners have worked in the promoted post, the Bank may not have suffered any loss. The said aspects also will be taken note of by the 2[nd] respondent. If the petitioners in W.P.(C) No.4513 of 2010 files objection against Exts.P7 and P9 notices, within three weeks from the date of receipt of a copy of this judgment, the same shall be considered by the 2nd respondent taking note of the fact that this Court has quashed the recovery proceedings against the petitioners in W.P. (C)No.4200 of 2009 and other matters deliberated above including the contention, Bank has not suffered any loss consequent to the promotion of the petitioners, since they have worked in that posts during pendency of the application for approval of the staff pattern._ _Writ petitions are disposed of accordingly.”_ In the light of the same there cannot be any recovery from the petitioners. The counsel for the petitioners submitted that the petitioners 10 and 11 were working at the time of filing the writ petition and there was a stay in their favour. As far as the WP(C) NO. 32470 of 2010 12 other petitioners are concerned the amount was recovered from their retirement benefits. If any amount is recovered from the retirement benefit of respondents No.1 to 9 the same should be refunded to them immediately. Therefore, this writ petition is disposed of with following directions:- 1. The recovery initiated based on Exhibit P12 audit objection against the petitioners are quashed. 2. If any amount is already recovered from the pensionary benefits of the petitioners 1 to 9, the same should be refunded to them forthwith. Sd/- **P.V.KUNHIKRISHNAN JUDGE** TR WP(C) NO. 32470 of 2010 13 ## **APPENDIX OF WP(C) 32470/2010** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE RESOLUTION DATED 25.11.2005 PASSED BY THE BOARD OF DIRECTORS OF THE BANK. - Exhibit P2 TRUE COPY OF THE ORDER NO. EST/854/20052006 DATED 9.12.2005 OF THE GENERAL MANAGER OF THE BANK PROMOTING THE 7TH PETITIONER AS EXECUTIVE OFFICER FROM THE POST OF BRANCH MANAGER. - Exhibit P3 TRUE COPY OF THE ORDER NO. EST/854/20052006 DATED 9.12.2005 OF THE GENERAL MANAGER OF THE BANK PROMOTING THE PETITIONERS 11,1,10,9,3 AND 8 AS BRANCH MANAGERS. - Exhibit P4 TRUE COPY OF THE ORDER NO. EST/1182/2005-2006 DATED 14.1.2006 OF THE GENERAL MANAGER OF THE BANK PROMOTING THE 6TH PETITIONER AS BRANCH MANAGER. - Exhibit P5 TRUE COPY OF THE ORDER NO. EST/163/20062007 DATED 1.6.2006 OF THE GENERAL MANAGER OF THE BANK PROMOTING THE 2ND PETITIONER AS EXECUTIVE OFFICER. - Exhibit P6 TRUE COPY OF THE ORDER NO. EST/16/20072008 DATED 5.4.2007 OF THE GENERAL MANAGER OF THE BANK PROMOTING THE 5TH PETITIONER AS BRANCH MANAGER. - Exhibit P7 TRUE COPY OF THE ORDER NO. EST/345/20072008 DATED 7.7.2007 OF THE GENERAL MANAGER OF THE BANK PROMOTING THE 4TH PETITIONER AS BRANCH MANAGER. - Exhibit P8 TRUE COPY OF THE APPLICATION DATED WP(C) NO. 32470 of 2010 14 - 15.6.2006 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT. - Exhibit P9 TRUE COPY OF THE LETTER OF THE 3RD RESPONDENT ADDRESSED TO THE 2ND RESPONDENT. - Exhibit P10 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT. - Exhibit P11 TRUE COPY OF THE REPRESENTATION DATED 6.10.2007 SUBMITTED TO THE 1ST RESPONDENT. - Exhibit P12 TRUE COPY OF THE ANNUAL REPORT DATED 3.9.2008. - Exhibit P13 TRUE COPY OF THE NOTICE DATED 10.11.2008 ISSUED TO THE 1ST PETITIONER. - Exhibit P14 TRUE COPY OF THE CERTIFICATE DATED 16.7.2010 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER. - Exhibit P15 TRUE COPY OF THE CERTIFICATE DATED 29.9.2010 ISSUED BY THE 3RD RESPONDENT TO THE 8TH PETITIONER. Exhibit P16 TRUC COPY OF THE ORDER DATED 2.2.2010 OF THIS HON'BLE COURT IN W.P. (C)NO.3378/2010.