High Court of KeralaSingle Judge2019-08-08Writ petition allowed in part; limited extent; ...

Thiruvananthapuram Service Co-operative Bank Ltd. v. Joint Registrar (General), Kerala Co-operative Tribunal, Co-operative Arbitration Court and V.O. Annice

Case / Petition Number:WP(C).No.8390 of 2019 (W)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2019-08-08
Court Decision / Holding: The writ petition is allowed in the limited sense: direction No.1 in Ext.P7 is set aside, but all other directions and findings in Ext.P7 and Ext.P6 relating to the 4th respondent’s innocence are maintained. The Tribunal is to reconsider the back-wages aspect after affording both sides a hearing, and after referring to the relevant Supreme Court and High Court decisions, within one month from receipt of a copy of the judgment.
Final Disposition: Writ petition allowed in part; limited extent; directions issued to reconsider the back-wages aspect within one month; rest of the order maintained.

Parties to the Case

Appellants / Petitioners

Thiruvananthapuram Service Co-operative Bank Ltd, No. T-131, Press Road, Thiruvananthapuram, represented by its Secretary V.S. Ramesh

Respondents

The Joint Registrar (General) of Co-operative Societies, Office of the Joint Registrar (General), Kaithamukku, Thiruvananthapuram-695001
The Kerala Co-Operative Tribunal represented by its Secretary, Office of the Kerala Co-operative Tribunal, Thiruvananthapuram-695001
The Co-operative Arbitration Court, Kaithamukku, Thiruvananthapuram, represented by its Assistant Registrar/Secretary-695001
V.O. Annice, aged 58 years, D/O. V.R. Ouseph, Chemmannil House, T.C. 12/608(1), KVRA 51(A), Vanchiyoor P.O, Thiruvananthapuram-695035

Legal Representation & Advocates

Counsels for Petitioners

• Sri. D. Sajeev
• Smt. Legey Antony

Counsels for Respondents

• Gopakumar R. Thaliyil
• M. S. Vijayachandran Babu
• C. S. Sheeja
• Sr. GP

Case Synopsis & Summary

The Thiruvananthapuram Service Co-operative Bank Ltd challenge arises from Ext.P7, where the Kerala Co-operative Tribunal modified an Arbitration Court Award in favour of the 4th respondent, V.O. Annice, by directing payment of full back wages and monetary benefits from the date of suspension until reinstatement. The Bank admits the 4th respondent was suspended on 11.10.2012 and reinstated through subsequent proceedings, but contends that Ext.P7’s blanket back-wages directive is not in accord with established law. The Bank argues it was denied a fair opportunity to argue before the Tribunal, and that the Tribunal relied on a single citation—Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) & others—to transform the Arbitration Court Award, thereby misapplying the law. The Respondent submits that the Award’s annulment of the disciplinary process justifies back wages, and that back wages are generally due unless extenuating circumstances are shown. The learned Judge notes inconsistency in both the Arbitration Court’s and Tribunal’s approaches and emphasizes that the law on back wages during suspension has evolved, requiring a considered application of Supreme Court and High Court precedents, with opportunity for both sides to be heard. The Court, therefore, allows the writ petition in a limited sense: it sets aside direction 1 of Ext.P7, but preserves the rest of Ext.P7 and Ext.P6; it directs the Tribunal to reassess the back-wages issue after hearing both sides within a month, keeping the remaining findings intact.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner-bank contends that Ext.P7 directing full back wages upon reinstatement is not consistent with the established principles governing back wages in suspension cases. It argues it was not given a fair opportunity before the Tribunal to present its case and that the Tribunal relied on a single citation (Deepali Gundu Surwase) to overrule the Arbitration Court’s decision. The Bank asserts that a blanket rule requiring full back wages lacks the required due consideration of extenuating circumstances and does not reflect the current law as interpreted by Supreme Court judgments and this Court, which require an evaluation of gainful employment, the irregularity of disciplinary proceedings, and other factors before granting back wages.

Contentions of Respondents

The respondents submit that Ext.P7 is sound because the Tribunal found the disciplinary proceedings to be irregular, and since the employee was reinstated, back wages are warranted. They argue that the law, as settled by numerous Supreme Court decisions and this Court, generally supports back wages in normal cases unless extenuating circumstances are shown to deny them. They maintain that the Arbitration Court did not properly apply back-wage principles and that the Tribunal’s modification was justified to reflect the irregularities in the proceedings.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) & others	[(2014) 2 SCC (L&S) 184]	Mentioned Only	Cited by the 4th respondent to justify automatic back-wages; the court rejects this narrow reading and emphasizes proper application of back-wage principles.
WP(C) No. 1249/2019	WP(C) No. 1249/2019	Mentioned Only	Referenced in Appendix as a judgment of this court; not treated as binding precedent in the present decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 08TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941** ## **WP(C).No.8390 OF 2019(W)** ## **PETITIONER/S:** **THIRUVANANTHAPURAM SERVICE CO-OPERTIVE BANK LTD. NO. T-131, PRESS ROAD, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY V.S. RAMESH.** **BY ADVS. SRI.D.SAJEEV SMT.LEGEY ANTONY** ## **RESPONDENT/S:** - **1 THE JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, OFFICE OF THE JOINT REGISTRAR (GENERAL), KAITHAMUKKU, THIRUVANANTHAPURAM-695 001** - **2 THE KERALA CO-OPERATIVE TRIBUNAL REPRESENTED BY ITS SECRETARY, OFFICE OF THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM-695 001** - **3 THE CO-OPERATIVE ARBITRATION COURT,** **KAITHAMUKKU, THIRUVANANTHAPURAM, REPRESENTED BY ITS ASSISTANT REGISTRAR/SECRETARY-695 001** - **4 V.O. ANNICE, AGED 58 YEARS, D/O. V.R. OUSEPH, CHEMMANNIL HOUSE, T.C. 12/608(1), KVRA 51(A), VANCHIYOOR P.O, THIRUVANANTHAPURAM-695 035** **BY ADVS. SRI.GOPAKUMAR R.THALIYAL SRI.M.S.VIJAYACHANDRAN BABU SMT.C.S.SHEEJA, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 8390/19 2 ## **JUDGMENT** The petitioner, which is the Thiruvananthapuram Service Co-operative Bank Ltd (herein after referred to as 'the Bank' for short), has filed this Writ Petition impugning Ext.P7 order to a limited extent to which the Kerala Co-operative Tribunal has modified the Award issued by the Arbitration Court, in an arbitration case filed by the 4[th] respondent, granting her full back wages and monetary benefits from the date of suspension till the date of reinstatement. 2. The petitioner admits that the 4[th] respondent was suspended from the service on 11.10.2012 and was, consequent to the orders of the Arbitration Court, reinstated in service; but that the directions in Ext.P7, to pay her the entire back wages with other monetary benefits merely because she has been reinstated in service, is not in consonance with the WPC 8390/19 3 principles of law enunciated by the Hon'ble Supreme Court in such matters and prays, therefore, that the said order be set aside to this extent. 3. The petitioner's specific contention is that they were not given sufficient opportunity by the Tribunal, while reversing the Award of the Arbitration Court, which had, in fact, denied such benefits to the 4[th] respondent, in establishing their version by citing the binding precedents of the Hon'ble Supreme Court and of this Court and that the Tribunal merely relied upon one citation made by the 4[th] respondent, namely, **Deepali Gundu Surwase v.** **Kranti Junior Adhyapak Mahavidyalaya (D.ED.) &** **others [(2014) 2 SCC (L&S) 184],** in modifying the Award of the Arbitration Court, holding erroneously that where the employer wants to deny the backwages they have to plead and prove that the employee was gainfully employed during WPC 8390/19 4 the intervening period. 4. The petitioner asserts that, as is clear from Ext.P7, the Tribunal took a misdirected view that until the employer is able to demonstrate that the employee was not gainfully employed during the period in which he/she remained under suspension, full backwages will have to be always granted. They, thus contend that Ext.P7 to this extent is legally flawed. 5. The learned counsel appearing for the 4[th] respondent, Sri.Gopakumar R. Thaliyil, submits that there in nothing wrong in Ext.P7 order since, as is evident from paragraph 9 thereof, the Tribunal has entered into the conclusion, that back wages ought to be given to the 4[th] respondent, because the entire disciplinary proceedings initiated and concluded against her was found to be irregular; and consequently, she has already WPC 8390/19 5 been reinstated in service by the petitioner. The learned counsel says that, in fact, the Arbitration Court did not consider the question of back wages in its proper perspective and has, in its Award, concluded, without any valid cause, that no back wages are eligible to her. He says that the law is now well settled by a plethora of judgments by the Hon'ble Supreme Court and by this Court that in normal cases, backwages will have to be granted, unless the employer is able to show extenuating circumstances to deny such benefits. 6. I have considered the afore submissions and have assessed it on the basis of various materials available on record. 7. It is, no doubt, true that the disciplinary action against the 4[th] respondent, initiated by the petitioner-Bank, has been interdicted by the Arbitration Court for reasons that are stated in Ext.P6 Award, but WPC 8390/19 6 her backwages for the period during which she was placed under suspension and till she was reinstated, was denied solely for the reason that she did not work for that period. However, contrary to this, the Tribunal, in appeal, took the view that unless the employer is able to show that the employee had been gainfully employed during this period, back wages will have to be always given. 8. I am afraid that both these views, of the Arbitration Court and of the Tribunal, are not really true to the spirit of law, as has been declared by the Hon'ble Supreme Court or by this Court in various judgments. There is now little doubt as to the criterion to be followed by Courts/Tribunals while deciding the question of backwages during the period of suspension, but it is manifest from the orders on record, that both the Arbitration Court and the Tribunal did not consider any of these WPC 8390/19 7 principles in its proper perspective. 9. I am, therefore, of the view that without this Court entering into the merits of the contentions, the Appellate Tribunal must consider this aspect, after affording necessary opportunity to both sides and after adverting to the decisions of the Hon'ble Supreme Court and of this Court in this area, which will be cited before it by the parties, and then take a fresh decision. In the afore perspective, I allow this Writ Petition to the limited extent of setting aside direction No.1 in Ext.P7 order, however, confirming all other directions and findings in the said order as well as in Ext.P6 Award relating to the innocence of the 4[th] respondent; and I direct the Tribunal to reconsider this singular aspect, after affording necessary opportunity of being heard to both sides, as expeditiously as is possible but not later than WPC 8390/19 8 one month from the date of receipt of a copy of this judgment. **Sd/-** **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 8390/19 9 ## APPENDIX ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE CHARGE SHEET ALONG WITH THE STATEMENT OF ALLEGATIONS ISSUED BY THE CHAIRMAN FOR AND ON BEHALF OF THE DISCIPLINARY SUB COMMITTEE. |EXHIBIT|P1|TRUE COPY OF THE CHARGE SHEET ALONG<br>WITH THE STATEMENT OF ALLEGATIONS<br>ISSUED BY THE CHAIRMAN FOR AND ON<br>BEHALF OF THE DISCIPLINARY SUB<br>COMMITTEE.| |---|---|---| |EXHIBIT|P2|TRUE COPY OF THE ORDER OF THE| |||DISCIPLINARY SUB COMMITTEE DATED| |||19.12.2013| |EXHIBIT|P3|TRUE COPY OF THE PROCEEDINGS OF THE| |||APPEAL BOARD OF MANAGEMENT DATED| |||18.06.2015| |EXHIBIT|P4|TRUE COPY OF THE RESOLUTION| |||CONSTITUTING THE APPEAL BOARD OF| |||MANAGEMENT.| |EXHIBIT|P5|TRUE COPY OF THE AWARD DATED| |||27.02.2018 IN A.R.C. NO. 41 OF 2015| |||ON THE FILE OF THE 3RD RESPONDENT.| |EXHIBIT|P6|TRUE COPY OF THE JUDGMENT DATED| |||27.11.2018 IN APPEAL NO. 49/2018 ON| |||THE FILE OF THE 2ND RESPONDENT.| |EXHIBIT|P7|TRUE COPY OF THE ORDER DATED| |||27.11.2018 IN REVISION PETITION NO.| |||67/2018 ON THE FILE OF THE 2ND| |||RESPONDENT.| |EXHIBIT|P8|TRUE COPY OF THE SPECIAL REPORT| |||DURING THE PERIOD 1.04.2012 TO| |||31.03.2013| |EXHIBIT|P9|TRUE COPY OF THE RELEVANT PAGES OF| |||THE FINAL REPORT SUBMITTED IN C.C.| |||1451/2015 BEFORE THE HONOURABLE| |||JUDICIAL FIRST CLASS MAGISTRATE| |||COURT - III, THIRUVANANTHAPURAM| WPC 8390/19 10 ## RESPONDENTS' EXHIBITS: EXT.R4(A) TRUE COPY OF THE ENQUIRY REPORT DATED 21.09.2013. EXT.R4(B) TRUE COPY OF ARC NO.41/2015 FILED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM DATED 31.07.2015. EXT.R4(C) TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WP(C)NO.1249/2019 DATED 24.01.2019.