Sindhu M. v. State of Kerala and others (WP(C).No. 211 of 2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY, THE 1ST DAY OF FEBRUARY 2018 / 12TH MAGHA, 1939** ## **WP(C).No. 211 of 2018** **----------------------------** **PETITIONER : --------------** **SINDHU M., D/O. SARASWATHI, MULLASSERY VEEDU, CHORANADU, VADAMON P.O., ANCHAL, KOLLAM.** **BY ADVS.SRI.D.ANIL KUMAR SRI.M.P.WILSON** **RESPONDENTS :** _**--------------**_ **1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695001.** **2. REGISTRAR OF CO-OPERATIVE SOCIETIES, STATUE JUNCTION, THIRUVANANTHAPURAM-695001.** **3. DEPUTY DIRECTOR, DIARY DEVELOPMENT DEPARTMENT, KPA COMPLEX, ANDAMUKKAM, KOLLAM-691501.** **4. ADMINISTRATIVE COMMITTEE, REPRESENTED BY ITS CONVENER, CHORANADU MILK PRODUCING CO-OPERATIVE SOCIETY, NO. Q 322 (D), APCOS, VADAMON P.O., ANCHAL, KOLLAM-691306.** **5. CHORANADU MILK PRODUCING CO-OPERATIVE SOCIETY, NO. Q 322 (D), REPRESENTED BY ITS SECRETARY, APCOS, VADAMON P.O., ANCHAL, KOLLAM-691306.** **R4,R5 BY ADVS. SRI.R.SURAJ KUMAR SRI.SUNIL J.CHAKKALACKAL SMT.V.DEEPA** **R1 TO R3 BY SR.GOVERNMENT PLEADER SRI.K.P.HARISH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-012018, THE COURT ON 01-02-2018 DELIVERED THE FOLLOWING:** **WP(C).No. 211 of 2018 (B)** **APPENDIX** ## **PETITIONER(S)' EXHIBITS ------------------------** - **EXHIBIT-P1 TRUE COPY OF THE ORDER DATED 25/02/2016 ISSUED BY THE 3RD RESPONDENT, DEPUTY DIRECTOR** - **EXHIBIT-P2 TRUE COPY OF THE ORDER DATED 19/04/2017 OF THE 3RD RESPONDENT, DEPUTY DIRECTOR, APPOINTING ADMINISTRATIVE COMMITTEE** - **EXHIBIT-P3 TRUE COPY OF THE ORDER DATED 23/10/2017 ISSEUD BY THE CONVENER OF THE COMMITTEE** - **EXHIBIT-P4 TRUE COPY OF THE FIR NO. 2267/2017 OF ANCHAL POLICE STATION** - **EXHIBIT-P5 TRUE COPY OF THE LEAFLET PUBLISHED BY CPI DATED 07/11/2017** - **EXHIBIT-P6 TRUE COPY OF THE ORDER DATED 13/12/2017 ISSUED BY THE CONVENER OF THE C0MMITTEE** - **EXHIBIT-P7 TRUE COPY OF THE MEMO OF CHARGE GIVEN BY THE CONVENER OF THE COMMITTEE DATED 13/12/2017** - **EXHIBIT-P8 TRUE COPY OF THE TIMING OF WORK ALLOTTED TO THE PETITIONER BY THE 4TH RESPONDENT EXHIBIT-P9 TRUE COPY OF THE LETTER SENT BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT DATED 18/12/2017** - **EXHIBIT-P10 TRUE COPY OF THE REPLY UNDER THE RIGHT TO INFORMATION ACT DATED 18/12/2017 GIVEN BY THE DAIRY EXTENSION OFFICER, DAIRY EXTENSION SERVICE UNIT, ANCHAL** - **EXHIBIT-P11 TRUE COPY OF THE LETTER DATED 28/08/2017 WRITTEN BY THE CONVENER, CHORANAD, KVCS** - **EXHIBIT-P12 TRUE COPY OF THE LAYWER NOTICE ISSUED ON BEHALF OF THE PETITIONER DATED 02/12/2017** **RESPONDENTS' EXHIBITS : --------------------(AS PER THE STATEMENT FILED BY R4 AND R5)** **EXHIBIT-R4(a) TRUE COPY OF THE OBJECTION DATED 22.11.2017 IN O.S.NO.373/2017 ON THE FILE OF THE MUNSIFF'S COURT, PUNALUR EXHIBIT-R4(b) TRUE COPY OF THE REPORT OF THE AUDITOR IN RELATION THE AUDIT FOR THE PERIOD 2011 TO 2016. EXHIBIT-R4(c) TRUE COPY OF THE REPORT OF THE AUDITOR IN RELATION THE AUDIT FOR THE PERIOD 2016-2017. EXHIBIT-R4(d) TRUE COPY OF THE ORDER DATED 17.10.2017** **WP(C).No. 211 of 2018** **:2:** **(AS PER THE COUNTER AFFIDAVIT FILED BY R4 AND R5)** **EXHIBIT-R4(a) TRUE COPY OF THE RELEVANT PAGE OF THE MINUTES DATED 31.03.2012 OF THE ADMINISTRATIVE COMMITTEE OF THE SOCIETY EXHIBIT-R4(b) A TRUE COPY OF THE ORDER NO.A5/495/16/K.DIS. DATED 25.02.2016 EXHIBIT-R4(c) TRUE COPY OF THE REPORT OF THE AUDITOR IN RELATION THE AUDIT FOR THE PERIOD 2011 TO 2016. EXHIBIT-R4(d) TRUE COPY OF THE REPORT OF THE AUDITOR IN RELATION TO THE AUDIT FOR THE PERIOD 2016-2017 EXHIBIT-R4(e) TRUE COPY OF THE ORDER DATED 17.10.2017 EXHIBIT-R4(f) TRUE COPY OF THE MINUTES OF THE SAID PROCEEDING DATED 07.11.2017 EXHIBIT-R4(g) TRUE COPY OF THE OBJECTION DATED 22.11.2017 IN O.S.NO.373/2017 ON THE FILE OF THE MUNSIFF'S COURT, PUNALUR EXHIBIT-R4(h) TRUE COPY OF THE RELEVANT PAGE OF PROCEEDINGS DATED 25.01.2018 OF THE ENQUIRY OFFICER.** ## **/TRUE COPY/** **P.A TO JUDGE** **AV** ## **ANIL K. NARENDRAN, J.** **--------------------------------------W.P.(C).No.211 of 2018 ---------------------------------------Dated this the 1[st] day of February, 2018** ## **J U D G M E N T** The petitioner, who was working as Procurement Assistant in the 5[th] respondent Co-operative Society, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 order dated 13.12.2017 issued by the Convener of the Administrative Committee of the said Society, whereby she has been placed under suspension, and also Ext.P7 memo of charges dated 13.12.2017. 2. On 04.01.2018, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 3. Urgent notice on admission by special messenger was ordered to respondents 4 and 5. 3. A statement has been filed on behalf of respondents 4 and 5, which is followed by a counter affidavit dated W.P.(C).No.211 of 2018 2 ## 30.01.2018. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 3 and also the learned counsel for respondents 4 and 5. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference under Article 226 of the Constitution of India is warranted on Ext.P6 order of suspension and Ext.P7 memo of charges dated 13.12.2017 issued by the Administrative Committee of the 5[th] respondent Society. 6. The petitioner was initially appointed as Secretaryin-charge of the 5[th] respondent Society on temporary basis, on 01.04.2012. While continuing as such, she was appointed as Procurement Assistant on provisional basis, on 07.09.2013 and her appointment was later regularised vide Ext.P1 order dated 25.02.2016 of the 3[rd] respondent Deputy Director. Even after appointment as Procurement Assistant, the petitioner continued as the Secretary-in-charge till 22.10.2017. 7. Five out of eight members in the Managing committee of the 5[th] respondent Society resigned. Therefore, W.P.(C).No.211 of 2018 3 the 3[rd] respondent, in exercise of the powers under Section 33(1)(b) of the Kerala Co-operative Societies Act, 1969, appointed an Administrative Committee consisting of three members, for a period of six months, vide Ext.P2 order dated 19.4.2017. On 23.10.2017, the Convener of the Administrative Committee issued Ext.P3 order, whereby the petitioner was removed from the additional charge of Secretary, with effect from 23.10.2017. 8. Alleging that, on 25.10.2017, the members of the Administrative Committee attempted to forcibly dislodge the petitioner from the position of Secretary-in-charge, she made a statement to the police on 30.11.2017, based on which, Crime No.2267/2017 of Anchal Police Station alleging offences under Sections 294(b), 341, 506, 344 and 34 of the Indian Penal Code, 1860, was registered against two members of the Administrative Committee and others. Ext.P4 is the FIR filed before the Judicial First Class Magistrate Court, Punalur. On 13.12.2017, the petitioner was served with Ext.P6 order of the Convener of the Administrative Committee, whereby she is placed under suspension pending enquiry. Along with Ext.P6, W.P.(C).No.211 of 2018 4 the petitioner was also issued with Ext.P7 memo of charges dated 13.12.2017. 9. The learned counsel for the petitioner would contend that Exts.P6 and P7 are _ex facie_ illegal. As per Ext.P8, the duty time fixed for Procurement Assistant is between 6.30 a.m. to 10.30 a.m. and thereafter from 2.00 p.m. To 6.00 p.m. Since the petitioner is not holding the additional charge of Secretary, with effect from 23.10.2017, there is no necessity to keep her under suspension pending enquiry. The learned counsel would also contend that the audit report for the financial year 2011-12 was also relied upon in Ext.P6 order of suspension, though the petitioner joined the 5[th] respondent Society as Secretary-in-charge only from 1.4.2012 onwards. Moreover, the figure arrived at in Exts.P6 and P7 as Rs.7,74,988.22 is without any factual basis. On the other hand, in Ext.P11 letter dated 28.8.2017 of the Convener of the Administrative Committee the total loss caused to the Society is mentioned as Rs.8,89,430/-. Therefore, Ext.P6 order of suspension and Ext.P7 memo of charges are issued on extraneous consideration and as such, vitiated by malice in W.P.(C).No.211 of 2018 5 law. The learned counsel would also contend that Ext.P7 memo of charges is vague and one cannot expect a fair trial on the basis of such charge. Relying on Ext.P5 leaflet published by the local committee of the Communist Party of India at Anchal, the learned counsel would contend further that Exts.P6 and P7 are on account of political rivalry in the management of the affairs of the 5[th] respondent Society. 10. Rule 198 of the Kerala Co-operative Societies Rules, 1969, deals with disciplinary action against any member of the establishment of a Co-operative Society. Sub-rule (6) of Rule 198 provides that an authority competent to appoint an employee may suspend him pending enquiry into serious charges against such employee. No employee shall however be kept under suspension for a period exceeding six months at a time and in no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar. As per sub-rule (6) of Rule 198, an employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972. In view of the statutory W.P.(C).No.211 of 2018 6 provisions under sub-rule (6) of Rule 198 of the Rules, it cannot be contended that Ext.P6 order, whereby the petitioner was placed under suspension pending enquiry, is one issued absolutely without any authority of law. 11. Clause (i) of Section 2 of the Kerala Co-operative Societies Act define 'dispute' to mean any matter touching the business, constitution, establishments or management of a Society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a Society, whether such claim be admitted or not. Section 69 of the Act deals with disputes to be decided by Co-operative Arbitration Court and Registrar. Clause (d) of sub-section (2) of Section 69 of the Act makes it explicitly clear that, any dispute arising in connection with employment of officers and servants of the different classes of societies specified in sub-section (1) of Section 18, including their promotions and _inter se_ seniority shall also be deemed to be a dispute, for the purpose of subsection (1) of Section 69. 12. In **Thrissur Taluk Co-Operative College v. Joint Registrar of Co-operative Societies (2012(1) KLT 503)** , W.P.(C).No.211 of 2018 7 this Court held that Section 69 of the Act provides for resolution of disputes as defined under clause (i) of Section 2 of the Act by the Co-operative Arbitration Court whether it being a dispute between a member and the Society or an employee and the Society. Clause (b) of sub-section (1) of Section 69 applies if it is a dispute between a member and the Society and clause (b) of sub-section (2) of Section 69 applies if it is a dispute arising in connection with the employment. In **Association of Milma Officers' Ksheera Bhavan and another v. State of Kerala and others (2015 (1) KHC 779** ) a Larger Bench of this Court held that in the case of a Co-operative Society which does not fall under Article 12 of the Constitution, a writ petition can be maintained only when the action complained is of any statutory violation or if it falls in a public domain or breach of public duty. No such circumstances warranting interference under Article 226 of the Constitution of India is made out in the present writ petition. 13. Therefore, if the petitioner is aggrieved by Ext.P6 order of suspension or the disciplinary proceedings initiated by the issuance of Ext.P7 memo of charges, it is for her to W.P.(C).No.211 of 2018 8 approach the Co-operative Arbitration Court under Section 69 of the Act, instead of approaching this Court invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 14. The fact that the petitioner was holding the charge of Secretary of the 5[th] respondent Society from 1.4.2012 to 22.12.2017 is not in dispute. The stand taken by respondents 4 and 5 in their counter affidavit is that, on a preliminary inspection, the present Administrative Committee found certain irregularities committed by the petitioner and others. Thereupon, it was decided to conduct statutory audit for the years 2011-12 to 2016-17. In Ext.R4(c) report for the years 2011-12 to 2015-16 and Ext.R2(d) report for the years 201617 serious irregularities were detected by the Statutory Auditor. Based on the said audit reports, the 3[rd] respondent Deputy Director issued Ext.R4(e) communication dated 17.10.2017 to the Convener of the Administrative Committee, whereby the Committee was directed to take necessary action including realisation of certain amount from the petitioner who was holding the charge of Secretary. It was thereafter, the W.P.(C).No.211 of 2018 9 petitioner was removed from the additional charge of Secretary vide Ext.P3 order dated 23.10.2017. 15. In view of Exts.R4(c) and R2(d) reports of the Statutory Auditor and also Ext.R4(e) order of the 3[rd] respondent Deputy Director, it cannot be said that Ext.P6 order of suspension is issued on extraneous considerations or it is politically motivated. It cannot also be said that Ext.P6 order of suspension is for an unauthorised purpose, which constitutes malice in law. Therefore, the decision of the Apex Court in _**Ravi Yashwant Bhoir v. District Collector, Raigad and Others [(2012) 4 SCC 407]**_ , is of no help to the petitioner. 16. In such circumstances, the petitioner has not made out a case warranting interference on Ext.P6 order of suspension and Ext.P7 memo of charges, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. It is for the petitioner to challenge Ext.P6 order of suspension and also the disciplinary proceedings initiated by the issuance of Ext.P7 memo of charges before the Co-operative Arbitration Court raising 10 W.P.(C).No.211 of 2018 appropriate factual and legal contentions. Without prejudice to the aforesaid right of the petitioner, this writ petition is dismissed. It is made clear that the observations contained in this judgment touching the merits of the case are made for the limited purpose to decide as to whether an interference is warranted on Ext.P6 order of suspension and Ext.P7 memo of charges, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. All legal and factual contentions raised by both sides are left open to be raised before the appropriate forum. Sd/- **ANIL K. NARENDRAN JUDGE** AV/