Usha T.S. v. Joint Registrar of Co-operative Societies (General), Thrissur; Chirannellur Service Co-operative Bank-640, Chirannellur P.O., Thrissur; The President, Chirannellur Service Co-operative Bank-640, Chirannellur P.O., Thrissur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944** **WA NO. 299 OF 2022** **AGAINST THE JUDGMENT DATED 09.02.2022 IN WP(C)NO.30207/2021 OF** **HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **USHA T.S., SENIOR CLERK (UNDER SUSPENSION), CHIRANELLUR SERVICE CO-OPERATIVE BANK-640 CHIRANELLUR P.O.- 680 501., NOW RESIDING AT KECHERIVALAPPIL HOUSE, THALAKKOTTUKARA.** **BY ADV P.C.SASIDHARAN** ## **RESPONDENTS/RESPONDENTS:** - **1 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),** **THRISSUR, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, THRISSUR-680 001.** - **2 CHIRANELLUR SERVICE CO-OPERATIVE BANK 640 , CHIRANELLUR P.O, KECHERI (VIA), THRISSUR-680 501.** - **3 THE PRESIDENT, CHIRANELLUR SERVICE CO-OPERATIVE BANK-640, CHIRANELLUR P.O, KECHERI (VIA), THRISSUR 680 501.** **R2 & R3 BY ADV.SMT.A.K.PREETHA** ## **R1 BY SR.GOVT. PLEADER SRI.SAIGI JACOB PALATTY** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA No.299 of 2022 2 ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** ## **............................................. W.A. No.299 of 2022** _[Arising out of the impugned judgment dated 09.02.2022 in W.P.(C).No.30207 of 2021]_ **..................................................** Dated this the 8[th] day of April, 2022 ## **JUDGMENT** ## **Viju Abraham, J.** The above writ appeal is filed by the petitioner in W.P. (C) No.30207 of 2021 challenging the judgment dated 09.02.2022 of the learned Single Judge, whereby the writ petition was dismissed. 2. Short facts necessary for the disposal of the above appeal are as follows: The appellant while working as Senior Clerk under the service of the 2[nd] respondent bank was issued with Ext.P1 memo of charges dated 23.11.2021 issued by the 3[rd] respondent alleging that the appellant has committed serious dereliction of duty and also financial misappropriation. To Ext.P1 memo dated 23.11.2021 Ext.P2 reply dated 29.11.2021 was submitted whereby she denied all the allegations levelled against her. Thereafter by Ext.P3 order dated 04.12.2021 issued by the 3[rd] respondent, the appellant was kept under suspension pending enquiry w.e.f WA No.299 of 2022 3 06.12.2021. The main contention raised by the appellant in the writ petition was that Ext.P3 order of suspension is bad in law, in as much as going by the mandate of Rule 198(6) of the Co-operative Societies Act, an employee can be suspended only by the appointing authority. It is contended that Ext.P3 order of suspension issued by the 3[rd] respondent President has not been ratified by the managing committee of the 2[nd] respondent bank and therefore the order of suspension is bad in law since the appointing authority is the managing committee of the 2[nd] respondent bank. To canvass the said position, the appellant relies on the decision in _**Kodanchery Service Co-operative Bank Ltd. & Ors. v. Joshy Varghese & Ors., 2020 KHC 5394**_ . The further contention raised by the appellant is that an employee of the co-operative society can be suspended only if disciplinary action is pending and that disciplinary action can be said to be pending only if a memo of charges is issued. The appellant relies on the decision in _**Satheesan M.P. v. Kannur District Co-operative Bank & Ors., 2020 (4) KHC 6**_ 0 in support of her contention. 3. A detailed counter affidavit was filed on behalf of the 2[nd] respondent refuting the averments raised in the writ petition. It is mainly contended in the counter affidavit that the appellant has an WA No.299 of 2022 4 effective alternative remedy available as per Section 69 of the Cooperative Societies Act to file an appeal before the Co-operative Arbitration Court challenging Ext.P3 order of suspension and therefore the present writ petition is premature and not maintainable. It is further contended that serious misconduct was committed by the appellant and on getting a complaint from one of the committee members, the managing committee in its meeting held on 23.10.2021 decided as per the decision evidenced by Ext.R2(a) minutes to seek an explanation from the employee concerned. The explanation given by the appellant was considered by the managing committee meeting held on 19.11.2021 and was found to be unsatisfactory and the 3[rd] respondent President was authorised to issue a show-cause notice to the appellant, as is evident from Ext.R2(b) minutes of the meeting of the managing committee held on 19.11.2021. Pursuant to the said decision evidenced by Ext.R2(b), the 3[rd] respondent President issued Ext.P1 show-cause notice to the appellant to which Ext.P2 explanation was submitted, and the same was considered in the managing committee meeting held on 03.12.2021 and found that the explanation offered by the appellant was unsatisfactory and a decision was taken to place the appellant under suspension with WA No.299 of 2022 5 effect from 06.12.2021 pending enquiry, as is evident from the minutes of the meeting held on 03.12.2021 produced as Ext.R2(c). On the basis of the said averments, the 2[nd] respondent contended that the action evidenced by Exts.P1 to P3 are taken perfectly in accordance with law and the contention to the contrary is devoid of any merits. 4. A reply affidavit was filed by the appellant mainly contending that Ext.R2(c) minutes is a subsequent creation in order to defend the contention of the respondent bank, in as much as nothing is stated in Ext.P3 order of suspension that the said order is issued as authorised by the managing committee. 5. The learned Single Judge after considering the rival contentions of the parties dismissed the writ petition as per judgment dated 09.02.2022 finding that Exts.P1 to P3 have been issued in accordance with law and therefore no interference is called for. 6. Assailing the judgment of the learned Single Judge dated 09.02.2022 the appellant contended that the learned Single Judge went wrong in placing reliance on Exts.R2(a) to R2(c), in as much as Ext.R2(a) minutes of the managing committee has nothing to do with the case of the appellant and a perusal of Ext.R2(b) 6 WA No.299 of 2022 minutes dated 19.11.2021 will clearly show that subsequent insertions were made manipulating the minutes book. Further that if in fact a decision was taken on 19.11.2021 to suspend the appellant, there is no necessity for a further resolution to suspend him as is evident from Ext. R2(c) resolution dated 03.12.2021 and it was contended that if the original minutes book is produced and verified, these facts will be evident to this Court. 7. On the specific assertion made by the learned counsel for the appellant, the minutes book containing Exts.R2(a) to R2(c) resolutions was produced and perused by this Court. Ext.R2(a) is the relevant portion of the minutes of the meeting of the managing committee held on 23.10.2021. Decision No.24 was taken in the meeting held on 23.10.2021 based on a complaint by one T.R.Pareeth, managing committee member of the bank regarding the financial irregularities, and based on the said complaint, the committee decided to call for an explanation from the employees concerned. The next meeting of the managing committee was held on 19.11.2021 and Ext.R2(b) is the minutes of the said meeting. A perusal of the said minutes would show that in connection with the issue raised in this appeal, 3 decisions were taken by the managing committee as decision Nos. 20, 22 and 23. In decision No.20 it is WA No.299 of 2022 7 seen that due to the dereliction of duty by the appellant a showcause notice dated 23.11.2021 was issued as per the decision of the managing committee and on finding that the reply submitted by the appellant is not satisfactory a decision was taken to suspend her from service, pending enquiry w.e.f. 06.12.2021. A reading of decision No.22 would show that the managing committee as per decision No.24 taken on 23.10.2021, decided to call for an explanation from the appellant and 2 other employees namely Shri. Manoj and Smt. Dhanya and the committee decided to accept the apology submitted by Shri. Manoj and Smt. Dhanya. Decision No. 23 taken on 23.10.2021 is to the effect that the explanation offered by the appellant, which was sought for by the committee on 23.10.2021 in its decision No.24 was found to be unsatisfactory and that as the appellant has been very irresponsible in her duties and is showing an arrogant behavior, a decision was taken to authorize the president of the bank to issue a show-cause notice to her. But a perusal of the minutes book shows that decision Nos.20 and 21 in Ext.R2(b) minutes are seen struck off from the minutes book of which decision No.20 is very relevant for the adjudication of this case. As stated above, in decision No.20 it is seen that a showcause notice dated 23.11.2021 has been issued to the appellant and 8 WA No.299 of 2022 as the explanation offered by the appellant was found to be unsatisfactory it is decided to keep her under suspension pending enquiry w.e.f. 06.12.2021. We are at a loss to understand how the details of the show cause notice dated 23.11.2021 could find a place in the above-said decision No.20 which was taken on 19.11.2021. Further, Exhibit R2(c) is the minutes of the meeting of the managing committee held on 03.12.2021. A reading of decision No.14 taken on that day will show that due to continuous dereliction of duty and arrogant behaviour of the appellant a showcause notice dated 23.11.2021 was issued as per the decision of the managing committee and on finding that the reply submitted by the appellant is not satisfactory, a decision was taken to suspend her from service, pending enquiry w.e.f. 06.12.2021. The decision taken on 19.11.2021 as decision No. 20, which was subsequently struck off from the minutes book, and the decision taken on 03.12.2021 as decision No.14 are exactly the same, ie., to suspend the appellant from service pending enquiry w.e.f. 06.12.2021. In view of the said contradiction as pointed out above, the contention raised by the appellant that there has been manipulation in the minutes book is to be duly considered and examined in detail and such adjudication will involve adducing of evidence by examining witnesses, marking WA No.299 of 2022 9 of documents, etc. Against Ext.P3 order of suspension the petitioner has an effective remedy under Section 69 of the Cooperative Societies Act to approach the Co-operative Arbitration Court constituted as per Section 70A of the Act, which is fully equipped to decide on the various contentions raised by the appellant by considering the evidence adduced by both sides. Therefore, we feel that the appellant should be relegated to invoke the remedy as provided under Section 69 of the Co-operative Societies Act. The learned counsel appearing for the appellant submitted that during the pendency of the writ petition the learned Single Judge has granted a stay of implementation of Ext. P3 order of suspension and that as per Annexure-A1 communication dated 09.02.2022 produced in this appeal, the appellant was intimated that since W.P.(C) No.30207 of 2021 was dismissed on 09.02.2022, the appellant will be kept under suspension with effect from 10.02.2022. Therefore, it is ordered that if the appellant files an appropriate application before the Co-operative Arbitration Court challenging the order of suspension along with a stay petition within two weeks from the date of receipt of a copy of this Judgment, Ext.P3 order of suspension dated 04.12.2021 as well as Annexure-A1 communication dated 09.02.2022 issued by the 2nd WA No.299 of 2022 10 respondent will remain stayed till a decision is taken on the stay application filed by the appellant before the Co-operative Arbitration Court as directed above. All contentions on both sides are left open to be agitated before the Co-operative Arbitration Court. If the abovesaid applications are not filed by the appellant before the Arbitration Court within the time limit of 2 weeks as above, then the interim arrangement ordered herein to stay the suspension order will stand automatically vacated, without any further orders from this Court. 8. The learned Single Judge did not take into consideration the various contentions raised by the appellant while passing the impugned judgment and in view of the same the judgment dated 09.02.2022 in W.P.(C) No.30207 of 2021 will stand set aside. With the above-said observation and direction, the above writ appeal is disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- ## **VIJUABRAHAM, JUDGE** cks WA No.299 of 2022 11 ## **APPENDIX OF WA 299/2022** **PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE COMMUNICATION DATED 09.02.2022 ISSUED BY THE SECRETARY.**