Thomas Mathew C. v. Secretary, Payyavoor Service Sahakarana Bank Limited and Labour Court, Kannur

## **ZXIN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944** ## **WP(C) NO. 23176 OF 2011** **AGAINST THE ORDER/JUDGMENT IN ID 40/2006 OF LABOUR COURT, KANNUR** ## **PETITIONER:** **SRI.THOMAS MATHEW.C, CHACKAMKUNNEL, P.O. CHANDANAKKAMPARA, PAYYAVOOR.** **BY ADVS. ARUN.B.VARGHESE AISWARYA V.S.** ## **RESPONDENTS:** **1 THE SECRETARY, PAYYAVOOR SERVICE SAHAKARANA BANK LIMITED, NO.C-179, P.O. PAYYAVOOR, KANNUR DISTRICT – 670 633. 2 LABOUR COURT, KANNUR – 670 001.** **BY ADV SRI. P.NARAYANAN SRI. C.N PRABHAKARAN - GP** ## **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **08.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C) No.23176 OF 2011** **2** ## **JUDGMENT** The petitioner was employed as a junior Clerk in the Payyavoor Service Sahakarana Bank Limited, Kannur District (hereinafter referred to as 'Bank'). By Ext.P2, the petitioner was served with a memo of charges by the President of the Bank alleging dereliction of duty and misappropriation of funds. To Ext.P2 memo of charges, the petitioner submitted Ext.P3 explanation. Dissatisfied with the explanation submitted by the petitioner, an Enquiry Officer was appointed by the Bank and based on the enquiry report, a show cause notice was issued on 26.12.2003. The petitioner submitted his explanation on 31.12.2003. By Ext.P4, the Chairman of the Sub Committee, constituted for the purpose of the disciplinary enquiry, imposed a punishment of dismissal from service of the petitioner w.e.f 26.09.2003. **W.P.(C) No.23176 OF 2011** **3** Though the petitioner preferred an appeal to the Board of Management, the same was dismissed confirming the order of disciplinary Authority. The petitioner thereafter, approached the Joint Registrar of Cooperative Societies to rescind the resolution of the Bank dismissing the petitioner from the service. 2. The Joint Registrar, by Ext.P6 order, dismissed the petition filed by the petitioner under Rule 176 of the Kerala Co-operative Societies Rules (KCS Rules) to rescind the resolution. Thereafter, the petitioner raised an industrial dispute and the dispute was referred for adjudication to the 2[nd] respondent Labour Court, Kannur. The issue referred was, whether the dismissal of the petitioner from the Bank by the management is justifiable, if not, what relief he is entitled to. Pursuance to the reference, the 2[nd] respondent registered the dispute as ID No.40 of 2006. 3. The petitioner filed claim statement and the Bank filed counter statement. **W.P.(C) No.23176 OF 2011** **4** 4. The Labour Court considered the validity of the domestic enquiry as a preliminary issue. The Labour Court set aside the enquiry as not conducted in compliance with the principles of natural justice. However, the 1[st] respondent Bank was given an opportunity to adduce fresh evidence to substantiate the charges that led to the dismissal of the petitioner from service. 5. The Labour Court, by Ext.P10 award, found that the dismissal of the petitioner is justifiable as the management has succeeded to establish the charges levelled against him. The Labour Court also found that the punishment of dismissal from service imposed on the workman is proportionate to the gravity of the misconduct. Ext.P10 order is impugned in this writ petition. 6. The contention of the petitioner is that Ext.P2 memo of charges has been issued by the President of the Bank. According to the petitioner, in terms of Rule **W.P.(C) No.23176 OF 2011** **5** 182 (2) of the KCS Rules, the committee shall be the authority competent to appoint employees in a cooperative society. The petitioner contends that, the appointing authority in the case of the petitioner being the managing committee of the 1[st] respondent Bank, the authority competent to issue the memo of charges is the managing committee and not the President of the Bank. It is also argued that there is nothing in Ext.P2 to show that the President has issued the memo of charges on behalf of the committee. It is further contended that Ext.P4 order of dismissal is passed by the Chairman of the sub committee. According to the petitioner, under Rule 198(3) of the Rules, the Authority competent to impose the punishment of dismissal from service in the case of a junior clerk is the President. Therefore, the punishment of dismissal passed by the sub committee is illegal and cannot be sustained in law. 7. Though the contentions regarding violation of **W.P.(C) No.23176 OF 2011** **6** Rule 198(3) of the KCS Rules were raised by the petitioner before the Joint Registrar of Co-operative Societies in his petition to rescind the resolution of the Bank to dismiss him from service, those contentions were rejected by the Joint Registrar. However, the petitioner did not challenge Ext.P6 order of the Joint Registrar further. It is also pertinent to note that, in the claim petition filed by the petitioner before the Labour Court, the petitioner has not raised the contention that the charge memo was issued by the President who is not competent to issue the same. Further, the contention that there is violation of Rule 198(3) was also not taken in the claim petition. The Labour Court, by Ext.P10 award, considered the factual and legal aspects raised by the petitioner in the claim petition and after considering the evidence, the Labour Court found that the charges levelled against the workman has been established and the dismissal of the petitioner from the service of the Bank is justifiable. **W.P.(C) No.23176 OF 2011** **7** 8. Sri.Arun.B.Varghese, the learned counsel for the petitioner relied on the judgment of this Court in **Kodanchery Service Co-operative Bank Ltd. and Others v. Joshy Varghese and Others** [2020 (4) KLT 129], to contend that sub committee is not competent to issue charge memo. 9. The question as to whether Ext.P4 order of dismissal is vitiated on the ground that the charge memo was issued by incompetent authority and the question whether the Chairman of the sub committee is competent to issue the order of dismissal were matters raised by the petitioner before the Joint Registrar of the Co-operative Societies. The said Authority considered the same and rejected those contentions by Ext.P6. The matter was not pursued further. Before the Labour Court the petitioner has not raised any of these contentions as can be seen from the claim petition filed in ID No.40/2006. The contentions raised by the petitioner before the Labour Court in the claim petition **W.P.(C) No.23176 OF 2011** **8** was considered by the Labour Court and the Labour Court found that the management succeeded to establish the charges levelled against the workman. I do not find any reason to interfere with the findings of fact by the Labour Court. The writ petition is devoid of merits and is, accordingly dismissed. **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SPR **W.P.(C) No.23176 OF 2011** **9** ## **APPENDIX** ## **' - PETITIONER S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE REPLY DATED 11.11.2003 SUBMITTD BY THE PETITIOENR.** **EXHIBIT P2 TRUE COPY OF THE CHARGE MEMO DATED 22.11.2003.** **EXHIBIT P3 TRUE COPY OF THE REPLY TO THE CHARGE MEMO DATED 04.12.2003.** **EXHIBIT P4 TRUE COPY OF THE PUNISHMENT ORDER DATED 09.01.2004.** **EXHIBIT P5 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE BANK BEFORE THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES DATED NIL JULY 2006.** **EXHIBIT P6 TRUE COPY OF THE ORDER OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES DATED 16.08.2006.** - **EXHIBIT P7 TRUE COPY OF THE CLAIM STATEMENT DATED 21.05.2009 FILED BY THE PETITIOENR.** **EXHIBIT P8 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 1ST RESPONDENT DATED 19.08.2009.** **EXHIBIT P9 TRUE COPY OF THE REJOINDER DATED 25.11.2009 FILED BY THE PETITIOENR. EXHIBIT P10 TRUE COPY OF THE AWARD IN ID NO.40 OF 2006 PASSED BY THE 2ND RESPONDENT.** **RESPONDENTS EXHIBITS: NIL.**