Satheesan M.P. v. Kannur District Co-operative Bank

**“C.R.”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** ## **WP(C).No.29957 OF 2019(T)** ## **PETITIONER:** **SATHEESAN M.P., SENIOR MANAGER(RETIRED), KANNUR DISTRICT CO-OPERATIVE BANK, RESIDING AT MANIKKARA PUTHIYA VEEDU, MADAYI P O, KANNUR-670304.** **BY ADVS. SRI.P.N.MOHANAN SRI.C.P.SABARI** ## **RESPONDENTS:** - **1 THE KANNUR DISTRICT CO-OPERATIVE BANK, REPRESENTED BY GENERAL MANAGER, KANNUR-670001.** - **2 THE ADMINISTRATOR, THE KANNUR DISTRICT CO-OPERATIVE BANK, KANNUR-670001.** - **3 THE DIVISIONAL MANAGER, LIFE INSURANCE CORPORATION OF KOZHIKODE DIVISION, DIVISIONAL OFFICE, P AND GS DEPARTMENT, 7TH FLOOR, JEEVAN PRAKASH, KOZHIKODE-673001.** - **4 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(G) CIVIL STATION, 3RD FLOOR, KANNUR - 670002.** - **5 KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD, REPRESENTED BY ITS SECRETARY, P B NO. 85, KALA NIVAS, T.C NO.27/156,157, CHINMAYA LANE, KUNNUMPURAM, NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM-1.** - **R1, R5 BY ADV. SRI.M.SASINDRAN R3 BY ADV. SRI.P.B.SAHASRANAMAN R3 BY ADV. SRI.T.S.HARIKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-06-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **“C.R.”** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W. P. (C) No.29957 of 2019 = = = = = = = = = = = = = = = = = = Dated this the 24[th] day of June, 2020** ## **JUDGMENT** Twin fold reliefs are claimed in this writ petition; challenging disciplinary proceedings initiated as per Ext.P3 memo of charges, and seeking disbursement of pensionary benefits. 2. Heard Sri.P.N.Mohanan, learned counsel for the petitioner; Sri. M. Sasindran, the learned counsel for respondent 1 and 2, and Sri.P.B.Sahasranaman, learned counsel for the third respondent. Also perused the counter affidavit filed by the respondents. 3. The petitioner retired from the services of the first respondent on 31.12.2018 as Senior Manager. On 29.12.2018, the petitioner was suspended from service. Thereafter Ext.P3 memo of charges dated 08.04.2019 was issued to the petitioner. He challenges the disciplinary proceedings on two grounds- (i) Disciplinary proceedings cannot be initiated after his W. P. (C) No.29957 of 2019 :- 2 :- retirement. (ii) The signatory to Ext.P3 charge memo is not competent to issue the same. 4. As noticed supra, though the petitioner retired from service on 31.12.2018, Ext.P3 Memo of Charges is issued only on 08.04.2019 i.e. subsequent to his retirement. It is trite that disciplinary enquiry is deemed to commence on the issuance of memo of charges _**(See Union of India v. K. V. Jankiraman (AIR 1991 SC 2010), Coal India Ltd. v. Saroj Kumar Mishra (2007 (9) SCC 625), Union of India v. Anil Kumar Sarkar (2013 (4) SCC 161), Elsy P. Omman v. State of Kerala (2011 (1) KLT 491)**_ . That generally, on the retirement of an employee the master-servant relationship terminates and disciplinary proceedings cannot thereafter be initiated or continued unless specifically provided for in the rules or byelaws governing the parties, is well settled ( _**See Dev Prakash Tewari v. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and Ors. 2014 (7) SCC 260, Ayyappan Pillai R. v. Kerala State Electricity Board and Anr. (2010 (4) KHC 330), Indian Council of Agricultural Research v. Abraham 2009**_ W. P. (C) No.29957 of 2019 :- 3 :- ## _**(2) KLT 653), Raghavan Pillai v. Travancore Devaswom Board (1980 KLT**_ _**782)**_ . The above hurdle is sought to be glossed over by the learned counsel for the first respondent referring to Explanation (a) to Rule (3) of Part III Kerala Service Rules which provides that, if an employee is kept under suspension prior to his retirement, that shall be deemed to be initiation of disciplinary proceeding for the purpose of the said rule. According to the learned counsel, the same principle has to be drawn in the case of Cooperative Societies also and it has to be taken that disciplinary proceedings were initiated against the petitioner on his suspension on 29.12.2018. 5. I am unable to concur. The Co-operative Societies Act is a self contained enactment. The Kerala Service Rules applies to civil servants. Unless any of its provisions are expressly made applicable to Co-operative Societies, the same cannot apply nor its principles brought in. Incidentally it may be noticed that, Rule 190(8) of W. P. (C) No.29957 of 2019 :- 4 :- the Co-operative Societies Rules provides for applicability of leave rules prescribed in Kerala Service Rules to Co-operative Societies. Therefore, it is evident that, wherever the provisions of KSR is to be read in, it has been expressly done so. With regard to the disciplinary proceedings, the Co-operative Societies Rules specifically deal with the same. There is no provision under the Cooperative Societies Act or Rules providing that suspension shall be deemed to be the commencement of disciplinary proceedings. In view thereof, the general principle applies and disciplinary proceedings shall be deemed to commence, in respect of an employee of the Co-operative Society, only on the issuance of the charge memo. Though reference to Rule 198(7) indicates that the disciplinary proceedings initiated prior to retirement can be continued and that no retirement benefits shall be sanctioned to such employee pending the same, the said provision is of no avail to the first respondent since no disciplinary proceedings were W. P. (C) No.29957 of 2019 :- 5 :- initiated prior to the retirement of the petitioner. The disciplinary proceedings initiated under Ext.P3 is thus, bad in law. 6. The disciplinary proceedings having been held against, it is not necessary to go into the challenge against Ext.P3 charge memo on the ground of competency of the General Manager to issue the same, and is left open. The disciplinary proceedings initiated against the petitioner under Ext.P3 is liable to be quashed and I do so. 7. Coming to the second limb of the relief sought in the writ petition viz. disbursement of the pensionary benefits, it is the contention of the first respondent that amounts are due to the Society for loss caused by the petitioner on account of sanction of irregular and bogus loans. It is not in dispute that the loss, if any, caused to the Society by the alleged action of the petitioner has not been quantified in any departmental or judicial proceeding. The same having not been done, the first respondent cannot W. P. (C) No.29957 of 2019 :- 6 :- unilaterally appropriate any amounts due to the petitioner. (See _**Philip C.M. v. Registrar of Co-operative Societies, Trivandrum and Anr. 2018 (3) KHC 780 D.B.**_ ). No doubt, the first respondent has a right to have the loss/damages, adjudicated and quantified in appropriate proceedings and to realise the same from the petitioner. However, that having not been done so far, amounts due to the petitioner cannot be withheld. 8. Indubitably the right of the first respondent to have appropriate proceedings initiated under the Co-operative Societies Act remains. The disciplinary proceedings initiated against the petitioner having been held against by this judgment, I deem it appropriate to leave open the right to the first respondent Society to have proceedings under the Co-operative Societies Act initiated, if they so choose. 9. Provident Fund and Gratuity amounts payable to the petitioner, the attachment of which are statutorily forbidden and forfeiture of gratuity W. P. (C) No.29957 of 2019 :- 7 :- being sanctioned only in the contingencies as mentioned in Section 4(6) of the Payment of Gratuity Act, shall be disbursed to the petitioner within a period of two months from today. The pension papers of the petitioner shall be forwarded to the 5[th] respondent Board within 3 weeks from today. As regards the other pensionary benefits claimed by the petitioner, the quantum being undisputed, shall be disbursed to the petitioner within a period of three months from today. However, I clarify that, the right to recover loss/damages from the petitioner on adjudication as referred to supra, is left open. The writ petition is allowed as above. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **WP(C).No.29957 OF 2019(T)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**A TRUE COPY OF THE COMMUNICATION DATED**| |---|---| ||**01.12.2018 GIVEN BY THE BANK REGARDING**| ||**RETIREMENT.**| |**EXHIBIT P2**|**A TRUE COPY OF THE SUSPENSION ORDER DATED**| ||**29.12.2018.**| |**EXHIBIT P3**|**A TRUE COPY OF THE CHARGE MEMO DATED**| ||**08.04.2019 ISSUED BY THE FIRST RESPONDENT.**| |**EXHIBIT P4**|**A TRUE COPY OF THE OBJECTION DATED**| ||**10.05.2019 FILED BY THE PETITIONER,**| |**EXHIBIT P5**|**A TRUE COPY OF THE LETTER DATED 06.07.2019**| ||**OF THE FIRST RESPONDENT.**| |**EXHIBIT P6**|**A TRUE COPY OF THE LETTER DATED 09.07.2019**| ||**OF THE ENQUIRY OFFICER,**| |**EXHIBIT P7**|**A TRUE COPY OF THE LETTER DATED 31.07.2019**| ||**OF THE PETITIONER.**| |**EXHIBIT P8**|**A TRUE COPY OF THE LETTER 05.08.2019 OF THE**| ||**BANK.**| |**EXHIBIT P9**|**A TRUE COPY OF THE LETTER DATED 14.08.2019**| ||**OF THE PETITIONER.**| |**EXHIBIT P10**|**A TRUE COPY OF THE LETTER DATED 30.09.2019**| ||**OF THE FIRST RESPONDENT.**| |**EXHIBIT P11**|**A TRUE COPY OF THE ONE OF THE LETTER DATED**| ||**27.06.2006 ISSUED BY THE GENERAL MANAGER.**| |**EXHIBIT P12**|**A TRUE COPY OF THE LETTER DATED 18.12.2018**| ||**ISSUED BY THE LIC.**| |**EXHIBIT P13**|**A TRUE COPY OF THE JUDGMENT AS REPORTED IN**| ||**2018(3) KHC 780(DB)**| |**EXHIBIT P14**|**JUDGMENT AS REPORTED IN 2009(2) KLT 653.**| |**EXHIBIT P15**|**JUDGMENTS AS REPORTED IN 2012(2) KLT SN 87**| ||**(CASE NO.80).**| APPNENDIX/ WP(C).No.29957 OF 2019(T) -2- ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 (a) EXHIBIT R1 (b) EXHIBIT R1 (c) EXHIBIT R1 (d)** **TRUE COPY OF THE MEMO DATED 25.10.2018 TRUE COPY OF THE MEMO DATED 23.11.2018 TRUE COPY OF THE INSPECTION RESPORT TRUE COPY OF THE DOMESTIC ENQUIRY REPORT.** ----------