Sabitha V v. Vadakkumbad Service Co-operative Bank Ltd & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944** **WA NO. 1691 OF 2021** **AGAINST THE JUDGMENT DATED 08.04.2021 WP(C) 18751/2020 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **SABITHA V, AGED 52 YEARS, W/O.MURUGHAN V., BILL COLLECTOR (UNDER ORDER OF DISMISSAL), VADAKKUMBAD SERVICE CO-OPERATIVE BANK LTD.NO.F 1712 KANNUR DISTRICT. RESIDING AT 'DEEPAM NIVAS', ERANHOLI, THALASSERY, KANNUR DISTRICT-670105.** ## **BY ADV M.SASINDRAN** ## **RESPONDENTS/RESPONDENTS:** - **1 VADAKKUMBAD SERVICE CO-OPERATIVE BANK LTD NO.F 1712 VADAKKUMBAD, KANNUR DISTRICT-670 105, REPRESENTED BY ITS SECRETARY.** - **2 THE COMMITTEE OF THE VADAKKUMBAD SERVICE CO-OPERATIVE BANK LTD.NO.F 1712, VADAKKUMBAD, KANNUR DISTRICT-670 105, REPRESENTED BY ITS PRESIDENT.** - **3 THE PRESIDENT, VADAKKUMBAD SERVICE CO-OPERATIVE BANK LTD.NO.F 1712 VADAKKUMBAD, KANNUR DISTRICT-670 105.** - **4 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) KANNUR DISTRICT-670 001.** **BY ADVS.SRI.N.K.SUBRAMANIAN SRI.N.C.MOHANAN SRI.ABRAHAM MATHAN** **SRI.ATHUL TOM SMT.ANUROOPA JAYADEVAN BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :2: W.A.No.1691 of 2021 ## **JUDGMENT** ## **Mohammed Nias C.P., J.** This Writ Appeal is filed by the writ petitioner against the judgment dated 08.04.2021 in WP(C).No.18751 of 2020 that impugned Ext.P5 order dismissing her from service. Petitioner was appointed as a Bill Collector in the service of the 1[st] respondent bank on 10.12.2009. On a complaint received from one Smt.Zeenath alleging that she did not receive the two instalments of Social Security Pension, the Secretary of the 1[st] respondent bank issued Ext.P1 to which the petitioner replied by Ext.P2 stating that she had given the two instalments to the said person through one Smt.Janaki. It is only when she went to give the third instalment that she came to know about the non-receipt of the earlier instalments and to avoid a controversy, she had paid up the same. Bank again issued Ext.P3 on 21.04.2020 stating that the petitioner had paid two instalments together and belatedly and that the said action amounts to defrauding the bank and the Government. Petitioner submitted Ext.P4 elaborating what she has already said in Ext.P2, clearly pointing out in Ext.P4 that she has not received the copy of the complaint alleged to have been made and therefore was handicapped in giving a proper reply. The bank by Ext.P5 proceedings dated :3: W.A.No.1691 of 2021 17.07.2020 dismissed the petitioner from service with effect from 20.07.2020, on the basis of an alleged enquiry against her. This was impugned in the Writ petition. 2. The 1[st] respondent bank had filed a counter affidavit contending that the action of the employee was against the Circular concerned in as much as she was not permitted to disburse the pension through a third party. It is also contended that the petitioner had admitted the charges levelled against her and therefore no further enquiry was required than the one already conducted by the bank. 3. The learned Single Judge who considered the matter found that there has been substantial compliance as a formal enquiry by a three member board was conducted though no formal charge memo was issued to the petitioner. Thus, holding that though a formal charge memo was not issued, the crux of the allegation was known to the petitioner and the defence was disclosed in the reply, the learned Single Judge did not accept the contention that the enquiry was vitiated. However, the learned Single Judge found that a copy of the enquiry report was not furnished and therefore permitted the bank to serve a copy of the enquiry report on the petitioner and to continue the proceedings from that stage afresh relying on the judgment of the :4: W.A.No.1691 of 2021 Supreme Court in **Managing Director, ECIL, Hyderabad v. B.Karunakar [1993 KHC 995]** . Ext.P5 was set aside. 4. The petitioner has filed this appeal contending that the learned Single Judge ought to have allowed the writ petition as prayed for as there was no charge memo at all and directing continuance of the enquiry was wrong as there was no enquiry at all. Apart from a preliminary enquiry which is evidenced by Ext.P1 to Ext.P4 nothing more happened and therefore the procedure adopted is against the judgment in **Kodancherry Service Co-operative Bank Ltd. and Others v. Joshy Varghese and Others [2020 KHC 5394]** and also the principles laid down in **Managing Director, ECIL, Hyderabad v. B.Karunakar [1993 KHC 995]** . The learned counsel for the 1[st] respondent bank on the otherhand contends that this being a case where the charges are admitted there was no need for a formal enquiry. He argues that Exts.P1 and P3 actually made the charges against the employee and he having understood the same and given a reply must be taken as an admission of the guilt through an admission of the facts leading to the guilt and therefore Ext.P5 has to be sustained. He also argues that the action of the employee was against the terms of the Circular which prohibited disbursement of pension through a third party. The learned counsel for the respondent bank cites the following :5: W.A.No.1691 of 2021 decisions: **Francis Klein & Co. (P) Ltd. v. Their Workmen and Others [AIR 1971 SC 2414], State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya [AIR 2011 SC 1931], Central Bank of India Ltd. v. Karunamoy Banerjee [AIR 1968 SC 266], State of U.P and Another v. Km.Prem Lata Misra and Others [1994 KHC 816].** 5. We have heard Sri.M.Sasindran, the learned counsel for the appellant. Sri.N.K.Subramanian for the respondent bank and also the learned Government Pleader for the official respondents of the State. 6. We have also gone through the pleadings and the records. 7. On hearing the learned counsel on either side, we are of the view that the appellant must succeed on two counts. Firstly, we do not think that there is a charge memo issued in this case. Exts.P1 or P3 cannot be taken as a charge memo. It may be true that Ext.P1 and Ext.P3 puts the employee on notice of certain facts. The same, however, does not constitute a specific charge to be answered by the employee which necessarily must pertain to a misconduct. In the absence of any allegation of misconduct, neither Exts.P1 or P3 can be seen as a charge memo for the purposes of disciplinary enquiry under Rule 198 of the Kerala Co-operative Societies Rules. Secondly, Exts.P1 and P3 are :6: W.A.No.1691 of 2021 issued by the Secretary of the bank and not by the authority to issue a charge memo as it had to be issued by the Managing Committee as held in **Kodancherry Service Co-operative Bank Ltd. and Others v. Joshy Varghese and Others [2020 KHC 5394].** In the above circumstances, it has to be taken that there was no valid enquiry according to law and therefore the entire proceedings leading to Ext.P5 has to be set aside. The learned counsel for the bank argues that the appellant is a contract employee and therefore her termination is valid. The learned Single Judge did not accept the said contention. The bank not having chosen to file an appeal, we are not considering the correctness of the said contention any more. None of the decisions cited on behalf of the respondents are applicable to the facts of the case. 8. In the result, the appeal is allowed, and it is declared that the employee will be deemed to be in service from 20.07.2020 onwards with all corresponding benefits from 20.07.2020. In the normal circumstances, to put a quietus to the dispute, the above direction would suffice. However, we take note of the request made by the learned counsel for the bank to give liberty to proceed afresh in accordance with law against the appellant. We permit the same subject to the condition that the bank shall forthwith reinstate the appellant and also pay the entire service benefits from 20.07.2020 :7: W.A.No.1691 of 2021 onwards by treating the appellant to have been in service from that date onwards. This shall be a pre-condition for taking any further steps afresh pursuant to the liberty granted. The amounts as directed above will be paid within an outer time limit of one month from the date of receipt of a copy of this judgment. The Writ Appeal is allowed. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **MOHAMMED NIAS C.P. JUDGE** mns :8: W.A.No.1691 of 2021 ## **APPENDIX** ## **PETITIONERS ANNEXURES:** **ANNEXURE A1: A TRUE COPY OF THE COUNTER AFFIDAVIT DATED 4.12.2020 FILED BY THE RESPONDENTS 1 TO 3 IN WP(C) NO.18751 OF 2021** **ANNEXURE AII: A TRUE COPY OF THE REPLY AFFIDAVIT DATED 11.03.2021 FILED BY THE PETITIONER IN THE WP(C) NO.18751 OF 2021** ## **RESPONDENTS EXHIBITS:** **EXHIBIT R1(A)- A TRUE COPY OF THE MINUTES OF THE MEETING OF THE MANAGING COMMITTEE DATED 20.11.2009 IS PRODUCED HEREWITH AND MARKED AS EXHIBIT R1(A)** **EXHIBIT R1(B) A TRUE COPY OF THE ORDER G.O.MS NO 324/2016 15.08.2016 IS PRODUCED HEREWITH AND MARKED AS EXHIBIT R1(B)** **EXHIBIT R1(C) A TRUE COPY OF THE REPORT OF THE ENQUIRY CONDUCTED BY THE SUB COMMITTEE IS PRODUCED HEREWITH AND MARKED AS EXHIBIT R1(C)** **EXHIBIT R1(D)-A TRUE COPY OF THE CIRCULAR NO.28/2016 17.08.3026 IS PRODUCED HEREWITH AND MARKED AS EXHINBIT R1(D)** ## **//TRUE COPY//** **P.A TO JUDGE**