Thiruvananthapuram District Co-operative Bank Ltd. v. Pradeep V. Padikkumampuzha Veedu and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023 / 21ST POUSHA,** **1944** ## **WP(C) NO. 39739 OF 2017** ## **PETITIONER:** **THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD.** **EAST FORT, FORT P.O., THIRUVANANTHAPURAM,REPRESENTED BY ITS GENERAL MANAGER-695023.** **BY ADVS. SRI.M.R.HARIRAJ SMT.G.BINDU SMT.M.K.LEELA SRI.M.R.RAJENDRAN NAIR SR. SRI.K.RAJAGOPAL** ## **RESPONDENTS:** - **1 PRADEEP.V PADIKKUMAMPUZHA VEEDU, OTTOOR, MOONGODU P.O.,VARKALA-695144.** - **2 S.LEELAKUTTY AMMA LEKSHMI BHAVAN, PATHIA KAVU, KILIMANOOR PO695601,THIRUVANANTHAPURAM.** **3 M.J.JAIN SENIOR MANAGER, THIRUVANANTHAPURAM DISTRICT COOPERATIVE BANK LTD.,VARKALA MAIN BRANCH, VARKALA, PIN-695141.** **BY ADVS. SMT.ANITHA RAVINDRAN SRI.HARISANKAR N UNNI SMT.T.RESHMA SRI.B.S.SWATHI KUMAR SMT.S.SIKKY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO.39739 OF 2017** **2** ## **JUDGMENT** The petitioner, which is a Co-operative Society, impugns Exts.P1 and P2 orders of the Co-operative Arbitration Court, Thiruvananthapuram (for short 'the Court') and the Kerala Co-operative Tribunal (for short 'Tribunal') respectively. 2. Sri.M.R.Hariraj – learned counsel for the petitioner, vehemently argued that both Exts.P1 and P2 have proceeded to hold that the disciplinary action taken by his client against the first respondent herein was in error, solely because no Disciplinary Sub Committee - as provided under Rule 198(2A) of the Kerala Co-operative Societies Rules (for short “the KCS Rules”) had been constituted, or entrusted to conduct the enquiry. He argued that this is peremptorily untenable because the proceedings against the first respondent was completed as early as in the year 2009, while the provisions of Rule 198(2A) of the KCS Rules was brought into the Statute Book only with effect from 18.08.2010. He further argued that all the proceedings against the first respondent were initiated and completed by the President of the Society in his capacity as the statutory Disciplinary Authority, though the Charge Memo and orders were communicated to the first **WP(C) NO.39739 OF 2017** **3** respondent by the General Manager of the Society, as authorised by the said Authority. Sri.M.R.Hariraj thus prayed that Exts.P1 and P2 be set aside. 3. In response, Sri.B.S.Swathi Kumar – learned counsel appearing for the first respondent, submitted that the documents on record and the evidence adduced would clearly show that every action from the inception, including the issuance of the Charge Memo, the conduct of enquiry and the final order of punishment has been done by the General Manager of the Society and therefore, that the whole proceedings are vitiated. He, however, conceded, to a pointed question from this Court, that a Disciplinary Sub Committee, as postulated under Rule 198(2A) of the KCS Rules, could not have been constituted by the Society, since the said provision came into the Statute Book only with effect from 18.08.2010; nevertheless, arguing that it has been well settled by at least two judgments of this Court, namely **Kunhammad v. Joint Registrar** [1998 (1) KLT 60] and **President, Pudupariyaram Service Co-operative Society v. Rugmini Amma and others** [1996(1) KLT 100], that Sub Committees are to be constituted for the purpose of conduct of enquiry and that punishments can be imposed only by the designated **WP(C) NO.39739 OF 2017** **4** Authorities as per Rule 198(3) of the KCS Rules. He contended that, therefore, the impugned orders are irreproachable and prayed that the petitioner society be directed to implement them within a time frame to be fixed by this Court. 4. Even when I hear Sri.B.S.Swathi Kumar on the afore lines, there is a legal hurdle that his client would face. The discussions in Ext.P1 start by saying that Rule 198(2A) of the KCS Rules stipulates that a Disciplinary Committee be constituted and that the enquiry be conducted by it. It then concludes saying that, though initially the Tribunal did not find any error in the domestic enquiry report, when the subsequent report was obtained, it was found that actions were taken by the Branch Manager, but not by the President and that “similarly, no Disciplinary Sub Committee was constituted to take penal action against the delinquent” (sic.). These findings were approved by the Tribunal through Ext.P2, however, additionally holding that the evidence on record would not show misappropriation but only improper accounting, which would not warrant the punishment imposed against the first respondent. **WP(C) NO.39739 OF 2017** **5** 5. However, what is relevant before this Court is to consider whether the Arbitration Court and the Tribunal had acted correctly in evaluating the legal position, particularly in the context of Rule 198(2A) of KCS Rules. 6. As I have already said above, both the Authorities have proceeded on the assumption that the afore Rule was applicable and that the absence of a Disciplinary Sub Committee was fatal; but without appreciating the fact that the said provisions came into the statute only with effect from 18.08.2010, while the disciplinary action against the petitioner was completed as early as in the year 2009. 7. That apart, the argument of the petitioner - Society is that all the impugned orders issued were settled by the President and that they were merely communicated by the General Manager under his orders and command. Of course, the respondents have a specific case that this is factually incorrect and that, in any event, the President could not have delegated any of his powers to the General Manager. 8. I, therefore, am of the firm view that the entire matter will require to be reconsidered by the Arbitration Court, since am left doubt that it has proceeded upon an incorrect legal assumption. This is more so because, every **WP(C) NO.39739 OF 2017** **6** aspect, as now argued by the rival parties, can also be then considered by the Arbitration Court. 9. That said, I am certain that the reconsideration will have to be done within the shortest period of time, taking note of the time lines during which the matter has been pending. Resultantly, I allow this Writ Petition and set aside Ext.P1 and P2; with a consequential direction to the Arbitration Court to reconsider the matter, based on the evidence on record; but after affording an opportunity being heard to the parties and after assessing all contentions impelled by them in law; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. For an expeditious compliance on the afore directions, I direct the parties to mark appearance before the Arbitration Court on 23.01.2023. After I dictated this part of this judgment, Sri.B.S.Swathikumar submitted that his client has been denied subsistence allowance throughout this period. This is an issue that first respondent can certainly raised before the **WP(C) NO.39739 OF 2017** **7** Arbitration Court, when the afore directions are complied with. The Writ Petition is thus ordered. **Sd/-DEVAN RAMACHANDRAN, JUDGE** lsn **WP(C) NO.39739 OF 2017** **8** ## **APPENDIX OF WP(C) 39739/2017** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 A TRUE COPY OF THE AWARD DATED 3.2.2017 IN ARC 11/2010 ON THE FILES OF THE CO-OPERATIVE ARBITRATION COURT.** - **EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 28.9.2017 IN REVISION PETITION ON THE FILES OF THE KERALA CO-OPERATIVE TRIBUNAL.** - **EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 21.07.2006 ISSUED BY THE SECOND PETITIONER.** - **EXHIBIT P4 A TRUE COPY OF THE ORDER EM(I) 49429/2007 DATED 24.11.2007 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES.** - **EXHIBIT P5 A TRUE COPY OF THE CHARGE MEMO NO.ADM/ESTT/1243/06/07 DATED 19.3.2007 ISSUED FOR THE FIRST PETITIONER.** **EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION DATED 30.5.2007.** - **EXHIBIT P7 A TRUE COPY OF THE PROCEEDINGS OF THE DOMESTIC ENQUIRY ON 10.11.2007.** - **EXHIBIT P8 A TRUE COPY OF THE PROCEEDINGS OF THE DOMESTIC ENQUIRY ON 17.11.2007 AND CROSS-EXAMINATION OF PW1 BY COUNSEL FOR THE FIRST RESPONDENT.** **EXHIBIT P9 A TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER ALONG WITH COVERING LETTER DATED 30.1.2008.** - **EXHIBIT P10 A TRUE COPY OF THE PROCEEDINGS NO.ADM/EST/E1/08-09 DATED 28.1.2009 ISSUED BY THE SECOND RESPONDENT.** - **EXHIBIT P11 A TRUE COPY OF THE APPEAL DATED 27.2.2009.** - **EXHIBIT P12 A TRUE COPY OF THE DECISION NO. 9 DATED 30.05.2009.** - **EXHIBIT P13 A TRUE COPY OF THE ARBITRATION REFERENCE FILED BY THE FIRST** **WP(C) NO.39739 OF 2017** **9** ## **RESPONDENT.** **EXHIBIT P14 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE FIRST PETITIONER IN ARC 11/2010.** **EXHIBIT P15 A TRUE COPY OF THE PROOF AFFIDAVIT AND THE DEPOSITION OF THE FIRST RESPONDENT.** - **EXHIBIT P16 A TRUE COPY OF THE MEMORANDUM OF REVISION PETITION 33/2017 FILED BEFORE THE KERALA CO-OPERATIVE TRIBUNAL.** - **EXHIBIT P17 A TRUE COPY OF THE OBJECTION FILED BY THE FIRST RESPONDENT IN RP 33/2017 ON THE FILES OF KERALA CO-OPERATIVE ARBITRATION TRIBUNAL.** - **EXHIBIT P18 A TRUE COPY OKAIPULLY HOUSE, PUTHURP.O.,-680014, THRISSUR TALUK, THRISSUR DISTRICT. F THE RELEVANT PAGES OF HE ACQUITTANCE REGISTER OF THE BANK.** ## **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** ## **P.A TO JUDGE** ## **LSN**