RadhaKrishnan v. Town Co-operative Bank Ltd and The Joint Registrar of Co-operative Societies

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 WP(C).No. 11592 of 2008(E) -------------------------- PETITIONER(S): --------------- RADHAKRISHNAN, S/O.SANKU ACHARI, SASTHAVINGAL HOUSE, KAVIL WEST, LOKAMALESWARAM, KODUNGALLUR, THRISSUR. BY ADV. SRI.K.J.NASARUL ASLAM RESPONDENT(S): --------------- 1. TOWN CO-OPERATIVE BANK LTD.NO.102, KODUNGALLUR, KODUNGALLUR P.O. THRISSUR. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, COLLECTORATE, AYYANTHOLE, THRISSUR. R1 BY ADV. SRI.M.P.ASHOK KUMAR R2 BY GOVT. PLEADER SRI.I.V.PRAMOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2008, ALONG WITH WPC NO. 15135 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN WPC.11592/08** ## **PETITIONER'S EXHIBITS** : - EXT.P1: TRUE COPY OF THE DISMISSAL ORDER DATED 9.11.1994 ISSUED BY THE 1ST RESPONDENT. - EXT.P2: TRUE COPY OF JUDGMENT DATED 31.8.2002 IN CRL.APPEAL 366/00 ON THE FILE OF III ADDL. SESSIONS JUDGE THRISSUR. - EXT.P3: TRUE COPY OF THE JUDGMENT DATED 4.7.2005 IN CC.282/01 ON THE FILE OF JFCM COURT KODUNGALLUR. - EXT.P4: TRUE COPY OF THE ORDER DATED 8.1.2008 ISSUED BY THE 2ND RESPONDENT. - EXT.P5: TRUE COPY OF THE REPRESENTATION DATED 22.1.2008 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - EXT.P6: TRUE COPY OF THE REPESENTATION DATED 20.3.2008 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. /TRUE COPY/ ## **THOTTATHIL B.RADHAKRISHNAN, J.** ------------------------------------------W.P(C).Nos.11592 & 15135 OF 2008 ------------------------------------------Dated this the 21[st] day of October, 2008 ## **JUDGMENT** The petitioner in W.P(C).11592/08 was an employee of the petitioner in W.P(C).15135/08, a co-operative society. The employer, after conducting an enquiry, dismissed the employee in question following allegations and issuance of memo of charges, which led to a finding that the employee had issued 19 appraisal certificates fraudulently while working as a Gold Appraiser in the bank. With the specific finding in Ext.P1 that the employee had colluded with the pawners and had committed fraud causing willful loss to it, the sub committee concluded that the employee had forfeited the confidence reposed on him and does not deserve employment in the bank. It is held that there is serious misconduct and on careful consideration, it was decided to dismiss him. 2. The employer challenges the decision of the Joint Registrar setting aside the order of dismissal of the employee, who, WPC.11592/08 & 15135/08 ## Page numbers through his writ petition, seeks enforcement of that order. Exhibits are referred to in this judgment in the sequence in which it is placed in W.P(C).15135/08 barring one from W.P(C). 11592/08. 3. After the issuance of Ext.P1 decision on 9.11.1994, the petitioner did not take recourse to any intra institutional appeal before the committee of the bank. He also did not challenge that decision by way of proceedings under the Kerala Co-operative Societies Act and Rules or before any other forum before which he could have raised such issues under the labour laws or even in a civil court. That decision became final. 4. Complaints were filed against the petitioner. By Ext.P2 judgment, he was convicted by the Judicial Magistrate of First Class, Kodungallur under Sections 409, 420, 120 B read with Section 34 IPC. He was convicted and sentenced to undergo rigorous imprisonment for three years under Section 409 and 420, though no separate sentence was there under Section 120 WPC.11592/08 & 15135/08 ## Page numbers B. The sentence was to run concurrently. The employee carried an appeal and that was allowed by the court of session, Thrissur as per the judgment, which is Ext.P2 in W.P(C).11592/08. Having perused the said judgment, particularly para 13 and 14, to which learned counsel for the employee relied on, I do not find that the said judgment rendered by the court of session results in an honourable acquittal, that is, acquitting the employee of all blemish. All that was said was that in so far as the element of entrustment under Section 409 is concerned, the prosecution case did not establish that the petitioner had appropriated any material. All that the court of session did, going by para 13 of Ext.P2 in W.P(C).11592/08 was that, it disagreed with the finding of the court of first instance on the question of appreciation of evidence in so far as the learned Magistrate accepted the testimony of two employees of the bank who are also Gold Appraisers, while, in the view of the learned Sessions Judge, those persons, being employees of the bank, are not independent witnesses. It was, accordingly, viewed by the court of session that the materials objects should have been sent for WPC.11592/08 & 15135/08 ## Page numbers scientific investigation. I have serious reservations in the quality of that finding and I am not persuaded to take Ext.P2 in W.P(C). 11592/08 as a judgment by the sessions court acquitting the employee free of all blemish. As per Ext.P3 judgment, another complaint against the employee by the employer stood dismissed on grounds of inordinate delay. 5. Whatever that be, after Ext.P1 was issued on 9.11.1994, the petitioner did not take any steps to challenge that decision. Be that as it may, on 4.12.2006, he made Ext.P4 representation before the Assistant Registrar and sought relief against the dismissal. He also moved this Court and filed Ext.P5 writ petition seeking a direction to the Assistant Registrar to take a decision on Ext.P4. That was dismissed by this Court relying on **Prakasini** v. **Joint Registrar** [2006 (1) KLT 199] By that judgment, this Court essentially followed **Prakasini** 's case and laid down that the petitioner's remedy was, if at all, to take recourse to Section 69 of the Kerala Co-operative Societies Act, 1969, hereinafter, the 'KCS Act' for short, and he could not WPC.11592/08 & 15135/08 ## Page numbers further avail other remedies. Before the Assistant Registrar, the employer made Ext.P6 objections to Ext.P4, but that matter just left at that stage. 6. Thereafter, the employer received Ext.P7 notice from the Joint Registrar on 16.4.2007. The employer made Ext.P8 objections and ultimately, Ext.P9, the order impugned by the employer, has been issued on 8.1.2008. 7. With the aforesaid sequence of events and in the light of Ext.P5 judgment of this Court, the petitioner could not have further taken recourse to any proceedings before the Joint Registrar, including under Rule 176 or otherwise. Be that as it may, a perusal of Ext.P9 would show that though the allegations against the employee and the findings in Ext.P1 are grave, the Joint Registrar has merely vacated the order of dismissal and has ordered reinstatement with entire backwages without stating any reasons as to why he disagreed with the findings in Ext.P1. To put it in short, the findings in Ext.P9 are perverse and WPC.11592/08 & 15135/08 ## Page numbers unreasonable. The said order is cryptic. Not only that, the same is in excess of jurisdiction under Rule 176, more so because Ext.P5 judgment relegates the petitioner, if at all, to proceedings under Section 69 of the KCS Act. 8. For the aforesaid reasons, Ext.P9 in W.P(C).15135/08 is quashed. The said writ petition is allowed accordingly. W.P(C). 11592/08 is dismissed. On pronouncing this judgment, learned counsel for the employee sought leave to move proceedings for relief under Section 69 of the KCS Act. With the aforesaid sequence of events and with the passage of time, leave as sought for is hereby specifically refused. Sd/- ## **THOTTATHIL B.RADHAKRISHNAN, Judge.** kkb.