Sabitha V. vs Vadakkumbad Service Co-Operative Bank Ltd

W.P(C).18751/2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** ## **WP(C).No.18751 OF 2020(T)** ## **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.** **BY ADVS. SRI.M.SASINDRAN SRI.P.SHAHEED** ## **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 VADAKUMBAD 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**| W.P(C).18751/2020 2 **R1-3 BY ADV. SRI.K.GOPALAKRISHNA KURUP (SR.) R1-3 BY ADV. SMT.ANUROOPA JAYADEVAN R1-3 BY ADV. SHRI.ASHRUTH NASER** ## **OTHER PRESENT:** ## **SR.GP K.P HARISH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1203-2021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:** W.P(C).18751/2020 3 ## **JUDGMENT** The writ petitioner was a Bill Collector in the service of the first respondent Co-operative Bank, claimed to have been appointed on 10.12.2009. She was interalia entrusted with the duty of distribution of social security pension introduced by the Government, to various eligible members of the society. While so, a complaint was received from one Zeenath V.C, who was a resident of Ward IV of the Municipality on 13.01.2020 alleging that, she had not received the installment of pension on two occasions. Consequently, Ext.P1 show cause notice was issued by the Secretary to the petitioner on 14.01.2020. On 16.01.2020, Ext.P2 reply was given by the petitioner contending that, she was innocent. She was entrusted with the duty of distributing pension to the residents of Ward Nos.I, II and III and she was later entrusted with the duty of distributing in Ward IV also. Since the identity of the complainant was not known, she sought the help of local ward member. The first installment was handed over to the said Zeenath. However, the second installment could not be delivered by the petitioner. Hence, the second installment was entrusted to the local ward member, requesting her to pay it to Zeenath. Later, when she went to supply the next installment, it was reported that, she was not paid the previous installment. Accordingly, on enquiry, it was revealed that the ward W.P(C).18751/2020 4 member had left the country. Hence, the amount due to Zeenath was given by the petitioner. Her contention was that, there was only delay in payment due to the above peculiar circumstances and she has not misappropriated the above amount. 2. Pursuant to Ext.P2 reply, an enquiry is stated to have been conducted by the committee of three members constituted by the bank. A report was submitted by them, pursuant to which, Ext.P3 show cause notice was issued to the petitioner. It was stated therein that, in the enquiry, petitioner was given an opportunity to appear, place her contentions and after conducting the enquiry, the enquiry committee was of the view that the allegations against the petitioner stood established. On the basis of it, Ext.P3 show cause notice was issued. A detailed reply reiterating the above contentions were given by the petitioner as Ext.P4 dated 16.05.2020. By Ext.P5 proceedings of the President dated 17.07.2020, the complainant was found guilty. The explanation given by the petitioner was not found to be satisfactory and hence, she was terminated from service with effect from 20.07.2020. This order is under challenge in the present proceedings. 3. The specific contention of the petitioner was that, she had not committed any misconduct and the delay in payment occurred due to the particular circumstances mentioned by her. No charge sheet memo was issued by the enquiry committee and an enquiry was also W.P(C).18751/2020 5 not conducted. She was asked to appear before the three member committee. She was asked certain questions, to which she replied. Formal enquiry was not conducted. It was also contended that, report was not given to her and it has violated the principles of natural justice. She was called upon to give reply to Ext.P3 show cause notice without supplying her the copy of the report, in which, findings were arrived at and Ext.P5 proceedings of the President was also dependent on the report, which has never seen the light of the day. 4. Heard the learned counsel for he petitioner, learned Senior Government Pleader and the learned Standing Counsel appearing for the Co-operative bank. Examined the records. 5. Essential facts are not in dispute. Though, the petitioner has a specific case that enquiry was not conducted, it seems that, a formal enquiry by a three member board was conducted. However, the details of the proceedings, the manner in which it was conducted are not available since neither the proceedings of the enquiry nor the report are made available. It is also seen that, no formal charge memo was also issued to the petitioner. However, the learned counsel for the petitioner vehemently contended that, enquiry proceedings commenced without issuing charge memo by the managing committee is not sustainable as held by this Court in W.P(C).No.22228 of 2019, the judgment of which was produced as Ext.P6. This was confirmed by the Division Bench of W.P(C).18751/2020 6 this Court in **Kodancherry Service Co-operative Bank v. Joshy Varghese (2020(4) KLT 129).** In the case at hand, no charge memo has been issued by the committee to the petitioner and no enquiry has been conducted. Therefore, it was requested that the proceedings may be quashed. 6. It is true that, in the above decision, it was held that a formal charge sheet is required and that should be issued not by the sub committee but by the managing committee. It was held in that decision that a charge memo issued by the sub committee was vitiated and the petitioner is entitled to get the enquiry set aside on that ground. It is further true that, a detailed enquiry as contemplated , with reasonable opportunity to the petitioner to adduce her evidence is not seen conducted. The exact nature of enquiry, the number of witnesses examined, whether the respondent was given an opportunity of getting in her evidence are also not discernible in the absence of the enquiry report. 7. Though it seems that, formal charge memo was not issued in the show cause, the crux of the allegation is mentioned. Reply also indicates that the specific nature of allegation raised against her has been disclosed. Her defence is also disclosed in the above reply. Hence, the only issue that arise now is whether the charges were purposefully withheld from the petitioner. Both sides understood the charge raised W.P(C).18751/2020 7 and participated in the enquiry, fully knowing this. Hence, in this particular case, even in the absence of a formal charge, I am inclined to accept, that by itself is not sufficient to vitiate the process of enquiry. 8. The specific contention set up by the petitioner was that, there was no enquiry and that, the allegations against her were not proved. As mentioned earlier, the enquiry report has not been produced. Copy of the enquiry report was also not given to the petitioner. Hence, I am unable to hold that the petitioner was prejudiced by any of the proceedings at present. 9. The petitioner has also a specific contention that the punishment imposed on her is highly excessive, since she had a long meritorious service. Though she had distributed about 2 crores of rupees as pension on earlier occasions in total, no complaint was raised against her till now. Hence, it could not be imagined that, petitioner herself has misappropriated a paltry sum of Rs.2400/-, it was contended. In that circumstances, even if all the allegations are proved, maximum punishment of dismissal from service is unjustified, it was contended. The bank had a specific contention that the petitioner was a temporary employee and was appointed on a contract basis. However, the records produced indicate the proceedings by which the petitioner was appointed to the post of Bill Collector on a fixed salary. There is nothing in the above proceedings to indicate that, she was appointed on W.P(C).18751/2020 8 contract basis. However, that alone cannot be a ground for resisting the termination, in the light of the decision of the Supreme Court in **State of U.P and Another v. K.M.Kumari Prem Lata Misra and Others (AIR 1994 SC 2411)** . It was held in that decision that termination of service of a temporary employee without holding enquiry was not valid even when it was for unfitness and unsatisfactory work. This decision squarely applies to the facts of this case and the contention of the bank is liable to be rejected. 10. The petitioner has yet another case that, though the domestic enquiry is stated to have been conducted, the copy of the report was not served on her to enable her to give a detailed reply. The petitioner to contend the above, relied on the decision of the Supreme Court in **Managing Director, ECIL, Hyderabad v. B.Karunakar (1993 KHC 995).** It was held therein that the copy of the enquiry report was liable to be furnished to the delinquent employee irrespective of whether he asked for it or not. It is the right of the employee to have the report to defend himself against the findings and the penalty proposed to be imposed. Non-furnishing of the copy of the report may substantially prejudice the petitioner. 11. In this case, the petitioner has a case that, enquiry was not conducted. However, it seems that, she has admitted that, she was called to the committee and was asked questions. As indicated above, W.P(C).18751/2020 9 the nature of the enquiry, the procedure adopted by the committee of enquiry and the nature of evidence tendered before the committee are not discernible from the evidence. As indicated, there is absolutely no material forthcoming from the part of the bank to substantiate it. Hence, I feel that, there are sufficient reasons to hold that the petitioner lost an effective opportunity to defend her case, after perusing the report. Non-furnishing of the enquiry report is fatal to the termination, in this case and to that extent, I am inclined to allow the Writ Petition. 12. In the nature of the above finding, without adverting to the merits of other allegations set up by the petitioner, I am inclined to set aside Ext.P5 termination order on the ground that the termination relying on the enquiry report, a copy of which was not furnished to the petitioner was bad in the light of the law laid down in **Managing Director, ECIL's** case (supra). Hence, Ext.P5 stands set aside. The bank shall immediately furnish a copy of the enquiry report to the petitioner who shall thereupon be permitted to reply to the action proposed to be taken. This is also necessary since Ext.P3 evidences that the order of termination was passed based on a perusal of the enquiry report. In the result, the Writ Petition is allowed. Ext.P5 is set aside and the bank is directed to forthwith serve a copy of the enquiry report on the petitioner. The petitioner shall thereafter be permitted to give a W.P(C).18751/2020 10 reply, within a stipulated time to be fixed by the bank, to reply to Ext.P3 show cause notice. The bank shall take decision thereafter. The contentions of the petitioner on the process of enquiry and all other defences as mentioned above are left open for appropriate consideration later. Sbna **Sd/SUNIL THOMAS JUDGE** W.P(C).18751/2020 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTICE NO. LO1-14012020 DATED 14-01-2020 ISSUED BY THE SECRETARY OF THE BANK EXHIBIT P2 TRUE COPY OF THE REPLY DATED 16-01-2020 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 21-04-2020 ISSUED BY THE SECRETARY OF THE BANK. EXHIBIT P4 TRUE COPY OF THE REPLY DATED 16-05-2020 SUBMITTED BY THE PETITIONER TO EXT.P3 EXHIBIT P5 TRUE COPY OF THE ORDER DATED 17-07-2020 ISSUED BY THE BANK EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 21-11-2019 IN W.P(C) NO. 22228/2019**