Ollur Town Co-operative Society Ltd. v Kerala Co-operative Tribunal; Derly K.J. v Ollur Town Co-operative Society Ltd. & Kerala Co-operative Tribunal

W.A.Nos.445 of 2020 and 331 of 2021 and W.P(C).No.22754 of 2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 26[TH] DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944** **WA NO. 445 OF 2020** **AGAINST THE ORDER/JUDGMENT IN WP(C) 1405/2020 OF HIGH COURT OF** **KERALA** ## **APPELLANT/PETITIONER:** OLLUR TOWN CO-OPERATIVE SOCIETY LTD.NO.R 1120 REPRESENTED BY ITS SECRETARY, COMPANYPADY.P.O, OLLUR, THRISSUR DISTRICT,PIN-7680 306 BY ADVS. T.R.HARIKUMAR SRI.ARJUN RAGHAVAN ## **RESPONDENTS/RESPONDENTS:** 1 THE KERALA CO-OPERATIVE TRIBUNAL, REPRESENTED BY IS SECRETARY, THIRUVANANTHAPURAM,PIN-695 001 2 DERLY.K.J., W/O.JOSEPH, KATTUKARAN HOUSE, MARATHAKKARA P.O., LLUR, THRISSUR,PIN-680 306 BY ADV SRI.JELSON J.EDAMPADAM THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.09.2022, ALONG WITH WP(C).22754/2020, 331/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.Nos.445 of 2020 and 331 of 2021 and W.P(C).No.22754 of 2020 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 26[TH] DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944** **WP(C) NO. 22754 OF 2020** ## **PETITIONER:** DERLY K.J, AGED 48 YEARS, W/O JOSEPH, KATTUKARAN HOUSE, MARATHAKARA P O, OLLUR, THRISSUR-680306. BY ADV JELSON J.EDAMPADAM ## **RESPONDENTS:** 1 THE KERALA CO-OPERATIVE TRIBUNAL THIRUVANANTHAPURAM-695001, REP BY ITS SECRETARY. 2 OLLUR TOWN CO-OPERATIVE SOCIETY LTD NO.R 1120, REP BY ITS SECRETARY, COMPANYPADY P.O, OLLUR, THRISSUR DISTRICT-680306. 3 THE MANAGING COMMITTEE OLLUR TOWN CO-OPERATIVE SOCIETY LTD. NO.R 1120, REPRESENTED BY ITS PRESIDENT, COMPANYPADY P O, OLLUR, THRISSUR-680306. BY ADVS. SRI.T.R.HARIKUMAR SRI.ARJUN RAGHAVAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.09.2022, ALONG WITH WA.445/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.Nos.445 of 2020 and 331 of 2021 and W.P(C).No.22754 of 2020 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 26[TH] DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944** **WA NO. 331 OF 2021** **AGAINST THE ORDER/JUDGMENT IN WP(C) 1405/2020 OF HIGH COURT OF KERALA** ## **APPELLANT/2nd RESPONDENT:** DERLY K.J, AGED 48 YEARS, W/O. JOSEPH, KATTUKARAN HOUSE, MARATHAKKARA P.O., OLLUR, THRISSUR-680 306 BY ADV JELSON J.EDAMPADAM ## **RESPONDENTS/PETITIONER & 1ST RESPONDENT:** 1 OLLUR TOWN CO-OPERATIVE SOCIETY LTD. NO. R 1120 REPRESENTED BY ITS SECRETARY, COMPANYPADY P.O., OLLUR, THRISSUR DISTRICT-680 306 2 THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS SECRETARY BY ADVS. SRI.T.R.HARIKUMAR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.09.2022, ALONG WITH WA.445/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.Nos.445 of 2020 and 331 of 2021 and W.P(C).No.22754 of 2020 4 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------W.A.Nos.445 of 2020 and 331 of 2021 and W.P. (C).No.22754 of 2020 -------------------------------------Dated this the 26[th] day of September, 2022** ## **J U D G M E N T** ## Vinod Chandran,J. 1. The appeals and the writ petition arise from the enquiry proceedings issued against the writ petitioner, an Accountant who, hereinafter, is referred to as the delinquent employee. The employer/the appellant in Writ Appeal No.445 of 2020 is a Co-operative Society. Charges were raised against the delinquent employee of, reduced interest application in certain accounts, prompt notices being not send in gold loans, non-cooperation with work of computerization, maligning junior employees and so on and so forth. Altogether 10 instances were alleged against the employee as misconducts, enquiry conducted and based on the finding of guilt on all the charges, the delinquent was terminated from service. The delinquent W.A.Nos.445 of 2020 and 331 of 2021 and W.P(C).No.22754 of 2020 5 employee approached the Arbitration Court, which first considered the preliminary issue regarding the validity of the enquiry. After examining the Enquiry Officer, the validity of the enquiry was upheld, against which, the delinquent employee approached the Co-operative Tribunal. The Co-operative Tribunal set aside the enquiry report on the ground that, even as per the deposition of the Enquiry Officer, the delinquent employee was not given sufficient opportunity to defend her case. 2. The specific contention raised against the charge of reduced application of interest, by the delinquent employee, was that the calculation of interest on the specific accounts, on which the allegations were raised, was similar to the calculation of interest in the other accounts. The other accounts or the original ledger was never produced before the Enquiry Officer. According to the delinquent employee, if the working of the interest in the other accounts are considered, it would be found that, there can be no allegation raised on the specific W.A.Nos.445 of 2020 and 331 of 2021 and W.P(C).No.22754 of 2020 6 accounts made mention of in the chargesheet. The Cooperative Tribunal accepted the same and sent back the matter to the Arbitration Court, however, the direction was to verify the correctness of the enquiry, which is not a permissible exercise. Learned Single Judge rightly found that, when there is a remand made after finding the enquiry to be invalid, the correct procedure would be to permit the employer to adduce evidence before the Arbitration Court itself. Against this direction, both the employer and the delinquent employee are before us in two appeals. The Writ Petition is with respect to the invalidity of the memo of charges as has been held by **-** this Court in **Kodanchery Service Co operative Bank Ltd.** ## **v. Joshy Varghese [2020(4) KLT 129]** . 3. As of now, it is submitted that the sustainability of the enquiry on the basis of the memo of charges issued by the Disciplinary Sub-committee is raised before the Arbitration Court, where the proceedings are pending by way of the remand made by the Tribunal. We are of the W.A.Nos.445 of 2020 and 331 of 2021 and W.P(C).No.22754 of 2020 7 opinion that the Tribunal was correct in finding that, atleast some of the accounts ought to have been produced, where there was a different working of interest made by the delinquent employee herself or atleast permit the delinquent employee to examine the ledger and profer specific accounts where a similar working was adopted by her. However, as of now, we are more concerned with the question of sustainability of the enquiry proceedings for reason of the memo of charges being vitiated. We are - bound by the decision in Kodanchery Service Co operative Bank Ltd. (supra), which found that, only the appointing authority can issue a memo of charges and in the present case, the delinquent employee was appointed by the Managing Committee and the memo of charges was issued by the Disciplinary Sub-committee. In such circumstances, the enquiry itself would be invalidated. However, going - by the further directions in the Kodanchery Service Co operative Bank Ltd.(supra), the bank should be permitted to initiate fresh proceedings against the delinquent employee. The delinquent employee during the period of ## W.A.Nos.445 of 2020 and 331 of 2021 and W.P(C).No.22754 of 2020 8 suspension was paid subsistence allowance, but she stood terminated. 4. In such circumstances, for the initial period of six months of suspension and for the period after termination, the entire pay due to her should be paid to her since, as of now, the memo of charges has been found to be invalid. The Managing Committee shall initiate fresh proceedings, at any rate, within two weeks from the date of receipt of a certified copy of this judgment. The delinquent employee shall file her objections within a further period of two weeks and the Managing Committee shall consider the same either by initiating proceedings by issuance of a fresh memo of charges or accepting the objections of the delinquent employee within a further period of two weeks. If memo of charges is issued, an Enquiry Officer or the Disciplinary Sub Committee shall be appointed and the proceedings shall be completed at any rate within a period of three months from the date of issuance of the memo of charges, wherein, the directions ## W.A.Nos.445 of 2020 and 331 of 2021 and W.P(C).No.22754 of 2020 9 herein above shall be complied with. The period, when the delinquent employee stood terminated shall be considered as spent on service and the entire benefits due to her shall be paid within a period of one month from the date of receipt of a certified copy of this judgment. We make it clear that the Arbitration Court need not further consider the issue and shall close the proceedings. Writ Appeals are disposed of and the Writ Petition is allowed. ## **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **C.JAYACHANDRAN** **JUDGE** Sbna/26.03.2022 10 ## W.A.Nos.445 of 2020 and 331 of 2021 and W.P(C).No.22754 of 2020 ## **APPENDIX OF WP(C) 22754/2020** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|TRUE COPY OF THE MEMO OF CHARGES DATED| ||22.08.2014 ISSUED TO THE DISCIPLINARY SUB| ||COMMITTEE TO THE PETITIONER.| |EXHIBIT P2|TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY| ||THE ENQUIRY OFFICER DATED 27.02.2015.| |EXHIBIT P3|TRUE COPY OF THE LETTER DATED 17.03.2015 OF| ||THE 2ND RESPONDENT.| |EXHIBIT P4|TRUE COPY OF THE COMMUNICATION DATED| ||17.07.2015, ISSUED TO THE PETITIONER ABOUT| ||DISMISSAL OF HER APPEAL.| |EXHIBIT P5|TRUE COPY OF THE PRELIMINARY ORDER DATED| ||02.08.2018 IN ARC 81/2015 OF ORDER DATED| ||02.08.2018 IN ARC 81/2015 OF THE CO-OPERATIVE| ||ARBITRATION COURT (NORTHERN) KOZHIKODE.| |EXHIBIT P6|TRUE COPY OF THE ORDER DATED 07.09.2019 OF| ||THE<br>KERALA<br>CO-OPERATIVE<br>TRIBUNAL,| ||THIRUVANANTHAPURAM IN APPEAL NO.96/2018.| |RESPONDENT EXHIBITS|| |EXHIBIT R2 A|A TRUE COPY OF THE JUDGMENT DATED 20.1.2020| ||IN WPC NO-1405 OF 2020.| W.A.Nos.445 of 2020 and 331 of 2021 and W.P(C).No.22754 of 2020 11 ## **APPENDIX OF WA 331/2021** PETITIONER ANNEXURES ANNEXURE-1 TRUE COPY OF THE MEMO OF CHARGES ISSUED BY THE MANAGING COMMITTEE ON 22.08.2014