Raju Augustian v. Administrator, Maruthankara Service Co-operative Bank Ltd. & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930** **WP(C).No. 21201 of 2008(Y)** **--------------------------------------** **PETITIONER:** **-----------------** **RAJU AUGUSTIAN, SECRETARY UNDER ORDERS OF SUSPENSION, MARUTHONKARA SERVICE CO-OPERATIVE BANK LTD., NO.2461, MARUTHONKARA, KOZHIKODE.** **BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.K.N.CHANDRABABU** **RESPONDENTS:** **----------------------** **1. THE ADMINISTRATOR, MARUTHANKARA SERVICE CO-OPERATIVE BANK LTD., NO. 2461, UNIT INSPECTOR, ASSISTANT REGISTRAR OFFICE, VADAKARA, KOZHIKODE.** **2. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), VADAKARA, KOZHIKODE.** **3. THE JOINT REGISTRAR OF CO-OPERTIVE SOCIETIES, KOZHIKODE.** - **R2, R3 BY GOVERNMENT PLEADER SRI.P.K.RAVIKRISHNAN** - **R1 BY ADV. SRI.P.RAVINDRAN (SR.) R1 BY ADV. SRI.ANIL SIVARAMAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/07/2008, THE COURT ON 04/08/2008 DELIVERED THE FOLLOWING:** **Rs/** ## THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C)No.21201 of 2008-Y = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4[th] day of August, 2008. ## JUDGMENT 1.This writ petition was admitted and an interim order of stay of proceedings on the basis of Exts.P7 and P8 was granted on 14-7-2008. I.A.9589 of 2008 was filed by the first respondent on 23-7-2008 seeking that the said interim order be vacated. Along with that petition is Ext.R1(a). On 30-7-2008, the first respondent filed a counter affidavit to the writ petition. On 30-7-2008, the writ petitioner filed a reply affidavit dated 28-7-2008. On 31-7-2008, he filed another reply affidavit dated 31-7-2008. - 2.I have heard Adv.Sri.K.Ramakumar, the learned senior counsel appearing for the petitioner and Adv.Sri.P.Ravindran, the learned senior counsel appearing for the first respondent. WP(C)21201/2008 -: 2 :- - 3.The petitioner challenges Ext.P8 placing him under suspension, pending enquiry, from service of the co-operative bank of which the first respondent is the Administrator. Ext.P7 decision of the Administrator, deciding to keep the petitioner under suspension and to order that Sri.K.C.Pavithran, the Internal Auditor of the bank will take charge from the petitioner, is also under challenge. 4.The impugned decisions are impeached on the ground that the action taken against the petitioner relates to certain prior litigations and except in cases of serious charges, the order of suspension ought not to have been made. It is contended in the writ petition that the action taken is regarding certain affidavits or counter affidavits filed in the High Court and the petitioner cannot be compelled to file any affidavit or counter affidavit contradicting his earlier counter affidavits or affidavits filed in WP(C)21201/2008 -: 3 :- different cases before this Court. 5.In opposition to the writ petition, the stand of the first respondent is that a suspension order could be the subject matter of arbitration under Section 69(2)(d) of the Kerala Co-operative Societies Act, 1969 and therefore, the petitioner has an alternate efficacious remedy and that the petitioner is trying to project a case which is just not there; in as much as neither Ext.P7 nor Ext.P8 proceeds on any allegation regarding filing of counter affidavits or affidavits and that the action taken is on the failure of the petitioner to act in terms of the decisions of the Administrator as are contained in Ext.P6. - 6.The learned senior counsel appearing for the petitioner argued that notwithstanding the sweep of Section 69(2)(d) of the Act, the scope of the definition of “dispute” in Section 2(i) may appear to show that a dispute relating to suspension could not be a dispute for the purpose WP(C)21201/2008 -: 4 :- of arbitration under Section 69. He also canvassed that when the petitioner is being compelled to file a counter affidavit contradicting his earlier stand before this Court, it is not merely a matter that should go for arbitration and there is no reason why this Court ought not to exercise its jurisdiction. It is further argued that having taken a particular stand in a previous case, he cannot be compelled to file a different affidavit or counter affidavit in a later case or cases touching the affairs of the bank. 7.The learned senior counsel appearing for the first respondent, on the other hand, argued that the decisions of this Court in Prakasini v. Joint Registrar [2006 (1) KLT 199], Raveendran P.S. v. State of Kerala [2007 (3) ILR Kerala 241] and F.A.C.T.Service Co-operative Society Ltd. v. Balakrishna Menon [2007 (3) ILR Kerala 483] clearly lay down the law that there is an exclusive jurisdiction before the Arbitrator for WP(C)21201/2008 -: 5 :- consideration of such cases. It is argued that it would be too far-fetched to contend that suspension is not an issue on which a dispute could arise between the employer and the employee. He further pointed out that Exts.P7 and P8 would, by themselves, clearly show that those actions did not follow on any refusal to file any affidavit or counter affidavit and it emanated only out of the refusal of the petitioner to obey the first respondent and to carry out the decisions contained in Ext.P6. 8.With the precedents laid down by this Court, as noticed above, all disputes between a society and its employee fall for arbitration under Section 69(2)(d). Suspension from service pending enquiry is a matter touching the employer-employee relationship. The power to suspend is one that is available with the employer to keep the employee out of office temporarily. Therefore, the contention of the petitioner that the question of suspension cannot be raised before an arbitrator WP(C)21201/2008 -: 6 :- in terms of Section 69(2)(d) of the Act is unsustainable. 9.However, to some extent, the petitioner may be justified in requesting this Court to exercise the writ jurisdiction under Article 226 of the Constitution, notwithstanding the existence of Section 69(2)(d) of the Act since, according to the petitioner, the situation in hand is of an extra-ordinary nature and is, according to him, linked with some of the proceedings which were decided by this Court or were pending before this Court as on the date of issuance of the impugned Exts.P7 and P8. So much so, notwithstanding the availability of the remedy by way of arbitration under Section 69(2)(d) of the Act, as already found, I deem it appropriate to decide on the plea of the petitioner, in challenge of Exts.P7 and P8. 10.Ext.P7 is a decision of the first respondent on the basis of which Ext.P8, the impugned order of WP(C)21201/2008 -: 7 :- suspension is issued. Ext.P7 decision is taken on the ground that the decision in Ext.P6 was not carried out by the petitioner. Ext.P6 proceedings of the first respondent shows that as the Administrator, in lieu of the elected committee, the first respondent decided to engage a particular advocate and also for paying him due fee in accordance with law. Ext.P6 does not contain any decision to file or not to file any affidavit or counter affidavit. Ext.R1(a) produced along with I.A.9589/2008 is issued by the petitioner to the first respondent on 5-72008 stating that he has difficulty in carrying out the first respondent's decision dated 5-72008 (Ext.P6) since the replies given in cases which were existing against the bank were true and it will be illegal to state anything contrary to that in WP(C).Nos.18764/2008 and 18116/2008 to which Ext.P6 relates. The issuance of Ext.R1(a) is not disputed by the petitioner. A perusal of Ext.P6 will show that the petitioner was not called upon to file any particular statement or WP(C)21201/2008 -: 8 :- affidavit or counter affidavit in the cases referred to therein. He was not even required to express his views in that regard. Therefore, the first respondent is right in contending that Exts.P7 and P8 are impeached on an assumption that Ext.P6 contains directions to file affidavit/counter affidavit; which is baseless since there is nothing of that nature in Ext.P6. 11.The second ground on which Ext.P8 is issued is that the petitioner, as the Secretary of the bank filed counter affidavits in certain matters, contradicting the stand taken by the Administrator. That fact is not denied by the petitioner. I desist from expressing anything on the propriety or otherwise of the stand of the petitioner because, Ext.P8 is only an order of suspension pending enquiry and such issue has to be left open. 12.With the aforesaid, it can easily be seen that Exts.P7 and P8 cannot be impeached as groundless. WP(C)21201/2008 -: 9 :- The challenge to Exts.P7 and P8 has, necessarily, to fail in that regard. 13.However, the learned senior counsel for the petitioner further pointed out that Ext.P8 order of suspension has been issued without prescribing any time limit and that even in terms of the statute, there cannot be any indefinite suspension. Hence, repelling all other contentions of the petitioner, the first respondent is directed to expedite proceedings, if any, following Ext.P8 and also to issue orders determining the period of suspension. The writ petition is ordered accordingly. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/310708