V. Suresh v. Joint Registrar (General), Office of the Joint Registrar, Co-operative Societies (General), Palakkad; Kannadi Service Co-operative Bank, Palakkad; Special Secretary to Government, Cooperation (C) Department, Thiruvananthapuram; Saju K.R.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN WEDNESDAY, THE 11TH DAY OF JULY 2018 / 20TH ASHADHA, 1940 W.A.No.1809 of 2016 IN WPC.NO.26307/2016 AGAINST THE JUDGMENT IN WP(C) 26307/2016 OF HIGH COURT OF KERALA DATED 09-08-2016 ## APPELLANT/PETITIONER: V.SURESH, S/O.VELAYUDHAN, AGED 46 YEARS, SREE KOVIL, POLICE HOUSING COLONY, KANNADI, PALAKKAD-678 701, NOW WORKING AS SECRETARY, KANNADI SERVICE CO-OPERATIVE BANK, KANNADI, PALAKKAD-678 701. BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SMT.ASHA BABU SMT.R.S.ASWINI SANKAR ## RESPONDENTS/RESPONDENTS: 1. THE JOINT REGISTRAR (GENERAL), OFFICE OF THE JOINT REGISTRAR, CO-OPERATIVE SOCIETIES (GENERAL), PALAKKAD-678 001. 2. THE PRESIDENT, KANNADI SERVICE CO-OPERATIVE BANK, KANNADI, PALAKKAD-678 701. 3. SPECIAL SECRETARY TO GOVERNMENT, CO-OPERATION (C) DEPARTMENT, THIRUVANANTHAPURAM-695 001. ## ADDITIONAL RESPONDENT: 4. SAJU K.R., AGED 37 YEARS, S/O.K.G.RAJAN, NELLIKKATHODU, KADALAKURISSI, KANNADI P.O., PALAKKAD – 678 701. (ADDITIONAL 4TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 9.7.2018 IN I.A.NO.438/2018) R1 & R3 BY SENIOR GOVERNMENT PLEADER SMT.K.R.DEEPA. R2 BY ADV. SRI.P.N.MOHANAN ADDL.R4 BY ADV. SRI.P.NANDAKUMAR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 9.7.2018, THE COURT ON 11.7.2018 DELIVERED THE FOLLOWING: “CR” ## V. CHITAMBARESH & SATHISH NINAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = ## W.A.No.1809 of 2016 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 11[th] day of July, 2018 ## Judgment ## Chitambaresh, J. 1.The appellant who is working as the Secretary of Kannadi Service Co-operative Bank Ltd. ('the Bank' for short) has been threatened with suspension from service at the instance of the State Government. It appears that the additional fourth respondent had filed a private complaint against the appellant before the Enquiry Commissioner and Special Judge, Thrissur alleging misappropriation of money. The complaint was referred to the Deputy Superintendent of Police, Vigilance and Anti-corruption Bureau, Palakkad for a quick verification and report who recommended a criminal case to be registered against the appellant. Accordingly WA1809/2016 -: 2 :- F.I.R.No.6/2016 has been registered against the appellant under the various provisions of the Prevention of Corruption Act, 1988 and the Indian Penal Code. 2.The authority competent to place the appellant under suspension pending enquiry into the charges is evidently the Bank under Rule 198(6) of the Kerala Co-operative Societies Rules, 1969 ('the Rules' for short). It is as follows: ## “ 198. Disciplinary action. (6) 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. In no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar. An employee under suspension shall be entitled to subsistence allowance payable under the Kerala WA1809/2016 -: 3 :- Payment of Subsistence Allowance Act, 1972 (27 of 1973). Provided that an employee not coming under the purview of the Kerala Payment of Subsistence Allowance Act, 1972 (27 of 1973) shall be entitled to subsistence allowance at the rate admissible to State Government Employees as prescribed under the Kerala Service Rules.” The Registrar is only the authority to grant prior approval in case the appellant is to be kept under suspension for a continuous period exceeding one year and has no say in the original spell of suspension. - 3.The State Government by Ext.P2 communication dated 2.7.2016 directed the Registrar to request the Bank to place the appellant under suspension 'till the investigation of the case is over'. The Registrar accordingly informed the Joint Registrar to initiate proceedings who in turn by Ext.P1 WA1809/2016 -: 4 :- communication dated 3.8.2016 directed the Bank to place the appellant under suspension and report. The appellant challenged Exts.P1 and P2 communications on the ground that neither the Government nor the Registrar or Assistant Registrar could dictate to the Bank to place an employee under suspension pending enquiry. The learned single Judge refused to entertain the writ petition observing that the challenge is premature since the direction in the communications have not been implemented. This writ appeal has been filed contending inter alia that the Bank would be constrained to place the appellant under suspension on dictation by the higher ups. 4.We heard Mr.K.Ramakumar, Senior Advocate on behalf of the appellant, Mrs.K.R.Deepa, Senior Government Pleader, Mr.P.N.Mohanan, Advocate on behalf of the second respondent and Mr.P.Nandakumar, Advocate on behalf of the additional fourth respondent. WA1809/2016 -: 5 :- 5.A Division Bench of this Court had occasion to consider this very issue in Mohammedkutty v. Secretary to Government [2002 (1) KLT 880] and the relevant part of the judgment is extracted hereunder: “We may point out due to misconduct of its employee or otherwise, the societies affairs may be affected. It is always open to the Joint Registrar to take appropriate action under the provisions of the Cooperative Societies Act and Rules. There is also ample power on the Registrar to take action under S. 65 and 66 of the Cooperative Societies Act and power under S. 32 can also be invoked in appropriate situations. In the absence of any provision in the Act or Rules giving power on the Government or Joint Registrar to direct suspension of an employee of the Cooperative Society we are of the view learned single Judge was not justified in declining relief to the petitioners.” WA1809/2016 -: 6 :- 6.The Supreme Court has in State of Madhya Pradesh v. Sanjay Nagayach [(2013) 7 SCC 25] reiterated that a statutory authority has to speak independently and not his master's voice and observed as follows: “36. Statutory functionaries like the Registrar/Joint Registrar of cooperative societies functioning under the respective Cooperative Act must be above suspicion and function independently without external pressure. When an authority invested with the power purports to act on its own but in substance the power is exercised by external guidance or pressure, it would amount to non-exercise of power, statutorily vested............ 37. ….................A statutory authority shall not act with pre-conceived notion and shall not speak his masters' voice, because the formation of opinion must be his own, not of somebody else in power, to achieve some ulterior motive. There WA1809/2016 ## -: 7 :- may be situations where the Registrar/Joint Registrar are expected to act in the best interest of the society and its members, but in such situations, they have to act bona fide and within the four corners of the statute...........................” 7.A reading of Exts.P1 and P2 communications would reveal that the Government has dictated to the Registrar to request the Bank to place the appellant under suspension which has been conveyed by the Assistant Registrar. The Bank is bound by the orders of dictation giving little room for it to independently apply its mind about the need to place the appellant under suspension. We are not doubting the entitlement of the Bank to independently assess the materials and take a decision as to whether the appellant has to be placed under suspension or not. But the apprehension that the Bank would mechanically issue orders placing the appellant under suspension on dictation by the Government cannot be said to be ill-founded. We therefore WA1809/2016 -: 8 :- set aside the impugned judgment and quash Exts.P1 and P2 communications leaving it open to the Bank to do the needful as is warranted under the circumstances. The writ appeal is allowed. No costs. Sd/- V. CHITAMBARESH, JUDGE Sd/SATHISH NINAN, JUDGE Sha/090718 -true copy- PS to Judge