P.T. Joseph v. Idukki District Taxi Drivers Co-Operative Society Ltd. & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940** **WA.No. 1559 of 2017** ## **AGAINST THE JUDGMENT IN WPC 38085/2010 OF** **HIGH COURT OF KERALA DATED 27-01-2017** ## **APPELLANT/PETITIONER:** **P.T.JOSEPH,POONATTU HOUSE, KATTAPPANA P.O., IDUKKI DISTRICT.** **BY ADVS. SRI.V.G.ARUN SRI.ARJUN RAGHAVAN** ## **RESPONDENTS/RESPONDENTS:** **1 IDUKKI DISTRICT TAXI DRIVERS CO-OPERATIVE SOCIETY LTD.NO.I-191, KATTAPPANA, IDUKKI-685 508, REPRESENTED BY ITS SECRETARY. 2 BOARD OF DIRECTOR,IDUKKI DISTRICT TAXI DRIVERS CO-OPERATIVE SOCIETY LTD.NO.I-191, KATTAPPANA, IDUKKI DISTRICT-685 508.** - **3 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695 001.** **R1-R2 BY ADV.SRI.P.C.SASIDHARAN R1-R2 BY ADV.SRI.ADITHYAN EZAHAPPILLY R3 SMT.K.R.DEEPA-SENIOR GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.10.2018, THE COURT ON 10.10.2018 DELIVERED THE FOLLOWING:** W.A.No. 1559/2017 2 **==> picture [46 x 10] intentionally omitted <==** ## **JUDGMENT** ## **Chitambaresh, J.** The appellant while working as the Secretary of the first respondent Society was placed under suspension on 23.03.2005 on the allegation of manipulation of records, misconduct, dereliction of duties etc. One of the members of the managing committee of the Society by name E.S.Babu was appointed as a single member disciplinary sub-committee to probe into the charges. A single member sub-committee is permissible and the number can swell upto three after the amendment as Rule 198 (2A) of the Kerala Co-operative Societies Rules, 1969 ('the Rules' for short). Later a charge memo dated 04.06.2005 was issued to the appellant by none other than E.S.Babu as a member of the managing committee containing as many as eighteen charges. E.S.Babu as the disciplinary sub-committee issued an intimation dated 16.06.2005 to the appellant about the appointment of an enquiry officer to enquire into the delinquency. 2. E.S.Babu was the first witness to be examined out W.A.No. 1559/2017 3 of the four witnesses examined on behalf of the Society and the appellant however remained ex-parte in the enquiry on the ground that the conclusion was forgone. The enquiry report dated 16.08.2005 found that fifteen charges out of the eighteen charges levelled against the appellant stand proved on the basis of evidence. It should be mentioned that E.S.Babu as a member of the managing committee had adduced evidence in respect of ten charges out of the fifteen charges proved in the enquiry. E.S.Babu again as the disciplinary sub-committee issued a notice dated 18.08.2005 to the appellant to show cause as to why the enquiry report shall not be accepted. Ext.P1 order dated 05.09.2005 of compulsory retirement of the appellant from service was consequently passed by E.S.Babu himself acting as the sole member disciplinary sub-committee. 3. The appellant did file Ext.P2 appeal dated 19.03.2007 to the managing committee challenging the imposition of punishment which was however rejected as belated by Ext.P3 order dated 10.04.2007. The appellant followed it up by filing Ext.P4 arbitration case dated W.A.No. 1559/2017 4 17.08.2007 wherein Ext.P6 award dated 29.05.2009 was passed by the Co-operative Arbitration Court. The court set aside the punishment imposed and directed the appellant to be reinstated in service after finding that the proceedings of the disciplinary sub-committee are vitiated. The Society filed Ext.P7 appeal dated 25.07.2009 against the award wherein Ext.P9 judgment dated 28.06.2010 was passed by the Kerala Co-operative Tribunal. The Tribunal allowed the appeal and set aside the award of the Co-operative Arbitration Court thereby dismissing the arbitration case filed by the appellant challenging the imposition of punishment. The writ petition numbered as WP(C) No. 38085/2010 filed by the appellant on 21.12.2010 was dismissed by judgment dated 27.01.2017 by the learned single Judge and hence this writ appeal. 4. Two young turks of the bar - Mr. Arjun Raghavan, Advocate on behalf of the appellant and Mr. Adithyan Ezhappilly, Advocate on behalf of the Society - enthralled us by their pursuasive arguments. We also heard Mrs. K.R. Deepa, Senior Government Pleader. 5. It was E.S.Babu as the member of the managing W.A.No. 1559/2017 5 committee who issued the memo of charges on the appellant wherein as many as eighteen charges were levelled alleging misdemeanor in service. It was E.S.Babu as the sole member disciplinary sub-committee who issued the intimation to the appellant about the appointment of an enquiry officer to enquire into the delinquency. It was E.S.Babu as a member of the managing committee who deposed as a witness on behalf of the Society to substantiate atleast ten charges out of the fifteen charges that were proved. It was E.S.Babu as the sole member disciplinary sub-committee who issued notice to the appellant to show cause as to why the enquiry report shall not be accepted for consequential action. It was the self same E.S.Babu who imposed the impugned punishment of compulsory retirement of the appellant from service on the basis of the enquiry report. 6. It should be borne in mind that the disciplinary sub-committee constituted was not bound to ipso facto accept the enquiry report and was also at liberty to discard the same for cogent and justifiable reasons. A finding of the enquiry officer which was not rested on evidence or a finding entered W.A.No. 1559/2017 6 into on the basis of a perverse appreciation of the material on record can be so discarded. But this previlege is lost when the same person functions as a witness of the employer Society and also as disciplinary sub-committee constituted to probe into the charges against the employee appellant. E.S.Babu has functioned in both the capacities rolled into one which is sufficient to hold that the punishment imposed by the disciplinary sub-committee after the culmination of the disciplinary proceedings is biased. 7. The Supreme Court in **Mohammed Yunus Khan** ## **v. State of Uttar Pradesh and others** [(2010) 10 SCC 539] had occasion to observe thus : ''29. Thus, the legal position emerges that if a person appears as a witness in disciplinary proceedings, he cannot be an enquiry officer nor can he pass the order of punishment as a disciplinary authority. This rule has been held to be sacred. An apprehension of bias operates as a disqualification for a person to act as adjudicator. No person can be a judge in his own cause and no witness can certify that his own testimony is true. Anyone who has personal interest in the disciplinary proceedings must keep himself away from such proceedings. The violation of the principles of natural justice renders the order null W.A.No. 1559/2017 7 and void.'' (emphasis supplied) E.S.Babu in accepting the enquiry report as disciplinary subcommittee has certified that his own testimony before the enquiry officer is true and has become a Judge in his own cause violating the principles of natural justice. 8. The Supreme Court even earlier in **Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (coeducation) Higher Secondary School** [AIR 1993 SC 2155] explained the principle of bias thus : ''This court has laid down that the test is not whether in fact, a bias has affected the judgment ; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.''. (emphasis supplied) The apprehension of the appellant that the testimony of E.S.Babu as a member of the managing committee has affected the imposition of punishment by the disciplinary subcommittee cannot be said to be ill-founded. 9. The 'doctrine of necessity' was called in aid on the W.A.No. 1559/2017 8 premise that the examination of E.S.Babu as a witness of the Society could not have been dispensed with since he was a person conversant with the records. But then E.S.Babu should have recused himself from the disciplinary subcommittee since any other member of the managing committee could discharge that function. It was contended that the same punishment would have followed even if another member of the managing committee had been examined on behalf of the Society. It is preposterous to arrive at such a conclusion and the 'theory of useless formality' can at best apply to orders passed in violation of principles of natural justice for want of notice. 10. Reliance is placed on **South Indian Cashew Factories Workers' Union v. Kerala State Cashew Development Corporation Ltd.** [(2006) 5 SCC 201] to contend that the plea of bias is belated. It was held therein as follows : ''14. The only other ground found by the Labour Court against the enquiry officer is that he made some unnecessary observations and, therefore, he was biased. The plea that the enquiry officer was biased was not raised during W.A.No. 1559/2017 9 the enquiry or pleadings before the Labour Court or in the earlier proceedings before the High Court. The bias of the enquiry officer has to be specifically pleaded and proved before the adjudicator. Such a plea was significantly absent before the Labour Court. …..........................'' We find that the plea of bias has been specifically urged in grounds 'e' and 'f' of Ext.P4 Arbitration case and that it is not a belated after thought to be thrown out as without any bonafides on the part of the appellant. A judicial discretion vests in the disciplinary sub-committee to impose anyone of the penalties enumerated as (a) to (h) in Rule 198 (1) of the Rules for the misdemeanor proved. We have no doubt in our mind that bias goes to the root of the lis involved which has materially affected the decision making process of the disciplinary sub-committee. 11. We reverse the impugned judgment and set aside Ext.P9 judgment of the Kerala Co-operative Tribunal holding that Ext.P1 order imposing the punishment of compulsory retirement is vitiated. We notice that the appellant has since attained the age of superannuation in the year 2011 and the entitlement of full back wages is not automatic as held even W.A.No. 1559/2017 10 recently in Civil Appeal No. 1756/2010 by the Supreme Court. Interest of justice would be met by directing that the Society shall pay 50% of the back wages (after deducting the Subsistence Allowance if any paid) to the appellant till the date of his retirement. Needless to say that the appellant is entitled to all retiral benefits as is due to any other employee similarly situate and the monetary compensation shall be disbursed by the Society within two months. The Writ Appeal is allowed. No costs. Sd/- **V. CHITAMBARESH JUDGE** Sd/- **SATHISH NINAN JUDGE** ncd