Varghese K.Y v. Poonithura Service Co-operative Bank Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ## **`THURSDAY, THE 21[ST] DAY OF JULY 2022 / 30TH ASHADHA, 1944`** ## **`WP(C) NO. 20237 OF 2020`** ## **`PETITIONER:`** ``` VARGHESE.K.Y S/O. YACOB, KANNAMKOTTALIL, PANCODE P.O. PAREPEEDIKA, VADAVUCODE, ERNAKULAM, SECRETARY (RETD), POONITHURA SERVICE, COOPERATIVE BANK LTD.NO. E-840, POONITHURA P.O. ERNAKULAM. ``` ``` BY ADVS. B.S.SWATHI KUMAR SMT.ANITHA RAVINDRAN SRI.HARISANKAR N UNNI SMT.P.S.BHAGYA SURABHI SHRI.SARANGADHARAN P. ``` ## **`RESPONDENTS:`** - `1 POONITHURA SERVICE CO-OPERATIVE BANK LTD.NO.E.840 POONITHURA P.O. ERNAKULAM 682 038, REPRESENTED BY ITS SECRETARY.` - `2 THE MANAGING COMMITTEE OF THE POONITHURA SERVICE CO-OPERATIVE BANK LTD NO. E-840, POONITHURA P.O. ERNAKULAM 682 038,REPRESENTED BY ITS PRESIDENT.` - `3 THE DISCIPLINARY SUB COMMITTEE OF THE POONITHURA SERVICE, CO-OPERATIVE BANK LTD NO. E.840, POONITHURA P.O. ERNAKULAM 682 038, REPRESENTED BY ITS CONVENOR.` - `4 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G) CIVIL STATION, KAKKANADU, ERNAKULAM 682 030.` ``` BY ADVS. SRI.M.M.MONAYE SRI.M.PAUL VARGHESE ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 W.P.(C).No. 20237 of 2020. ## **JUDGMENT** ## **Dated this the 21st day of July, 2022 .** The petitioner, who is stated to have retired as the Secretary of "Poonithura Service Co-operative Bank Ltd" (hereinafter referred to as "Society" for short), has approached this Court impugning Ext.P4 Memo of Charges issued by the Managing Committee of the Society, making certain imputations against him. The petitioner contends that Ext.P4 is incompetent and illegal, because it has been issued much after he retired from the service of the Society, on attaining the age of superannuation; and thus prays that same be set aside. 2. Sri.B.S.Swathi Kumar, assisted by Sri.Harisankar N.Unni - learned counsel for the petitioner, 3 W.P.(C).No. 20237 of 2020. pointed out that his client was originally suspended by the Society through an order dated 28.07.2020, and that he was issued with a Memo of Charge dated 27.08.202020, He argued that, however, being aware that this Memo of Charges was untenable on account of the judgment of the learned Division Bench of this Court in **Kodanchery Service Co-operative Bank v.** _`-`_ **Joshy Varghese (2020(4) KLT 129)** it having been issued by the President of the Society - they themselves withdrew it and issued Ext.P4 on 19.09.2020. He argued that, since his client had superannuated from service as early as on 31.08.2020, Ext.P4 is completely untenable; and thus prayed that this writ petition be allowed and the pensionary benefits of his client, an also the arrears of salary, be directed to be disbursed to him, reckoning the 4 W.P.(C).No. 20237 of 2020. entire period when he was earlier placed under suspension. 3. In response, Sri.Paul Varghese - learned counsel for respondents 1 to 3, submitted that petitioner cannot be construed to have superannuated from service on 31.08.2020, because he was under suspension and he had not been officially relieved. He argued that, therefore, Ext.P4 cannot be found to be untenable; adding that, in any event, this order is without error because it was issued in continuation of the earlier Memo of Charges dated 27.08.2020, served on him when he was in service. He reiteratingly contented that Ext.P4 can only be seen to be in continuation of the earlier Memo of Charges and therefore, that petitioner cannot be now allowed to go scot free, particularly when very 5 W.P.(C).No. 20237 of 2020. severe allegations have been made against him, including supervisory lapses which caused loss to the Society. 4. I have evaluated the afore rival submissions on the touch stone of the various materials available on record. 5. This Court is aware that petitioner had earlier approached this Court by filing W.P.(C).No.18629 of 2020, challenging the first Memo of Charges issued to him on 27.08.2020. Pending this writ petition, the Society, being aware that said Memo of Charges falls foul of the declarations in **Joshy Varghese** (Supra), issued Ext.P4 Charge Memo and now maintains that it is only in continuation of the earlier Memo of Charges dated 27.08.2020. 6 W.P.(C).No. 20237 of 2020. 6. However, when one reads Ext.P4 in its entirety, it becomes manifest that it was intended by the Bank to be a fresh Charge Sheet and this is indubitable since they say it is issued rectifying all the defects presented in the earlier Memo of Charges. The words employed in Ext.P6 are unmistakable that the Society intended to continue with the disciplinary action against the petitioner, for which purpose, Ext.P4 Memo of Charges was being issued, after "rectifying the defects". What is pertinent in this case is that Ext.P4 was not issued as per the orders of this Court or after this Court had found the earlier Memo of Charges to be vitiated. The Society did so on their own, being fully aware that **Joshy Varghese** (supra) would strike at the roots of the earlier Memo of Charges. This is further luculent from 7 W.P.(C).No. 20237 of 2020. Ext.P3 order dated 19.09.2020, which says that the earlier Memo of Charges had been "withdrawn". If the intent of the Society was to continue with the earlier Memo of Charges, they could have amended the same - assuming it was possible - rather than withdrawing it and then to issue a fresh one. Their action of withdrawing the earlier Memo of Charges would demonstrate ineluctably that they had decided not to proceed on the same; and coupled with the fact that they have issued Ext.P4 on the same day would make it incontestable that it is a new Memo of Charges. 7. That being so said, the further question is whether Ext.P4 can be allowed to operate. 8. Sri.B.S.Swathi Kumar - learned counsel for the petitioner, vehemently argued that in view of the 8 W.P.(C).No. 20237 of 2020. conclusive declarations of this Court in **Satheesan M.P V Kannur District Co-operative Bank and others [2020 (4) KLT 236]** , disciplinary enquiry can be construed to have commenced only on the issuance of Memo of Charges. He fortified this submission relying on the judgment of a learned Division Bench of this Court in **P.K.Anandakrishnan v. Muthukulam Service Cooperative Bank Ltd.** (Writ Appeal Number 220/2022), in which it has been held beyond the pale of doubt that, after a person retires from service, disciplinary action cannot be invoked. 9. However, the contra contention of the Society to this is that petitioner had been placed under suspension even before he superannuated; and therefore, that he should be deemed to be continuing in 9 W.P.(C).No. 20237 of 2020. service solely for the purpose of disciplinary action, going by the provisions of the Kerala Service Rules (KSR). 10. I am afraid that I cannot find favour with the afore contention of the Society because, the provisions of the KSR - which provides for such liberty to the Management/Employer - is not applicable to a Cooperative Society and this has been well settled by the Bench judgment of this Court. The respondents have not been able to show me any other provision under the applicable law, including the Kerala Co-operative Societies Act, 1969 (KCS), through which the Society is authorized to initiate disciplinary action against an employee who has retired, except under Rule 198(7) of the KCS Rules, which was projected by Sri.Paul Varghese. Again, this argument is misplaced because, Rule 198(7) 10 W.P.(C).No. 20237 of 2020. only permits the Society to refuse a Non Liability Certificate in the event liabilities are quantified against a retired employee. 11. In the case at hand, admittedly, there is, no quantification of any liability against the petitioner; but, on the contrary, it is expressly admitted than an Arbitration Case has been filed against him by the Society, which is still pending. 12. It is luculent that neither Ext.P4 nor the earlier order of suspension will now permit the Society to hold on to the arrears of salary or to refuse payment of the retirement benefits to the petitioner, including gratuity, any further. In fact, as is limpid from the interim order granted by this Court on 29.09.2020, the Society had been directed to pay gratuity to the petitioner, but it is 11 W.P.(C).No. 20237 of 2020. conceded that it has not been done yet. Resultantly, I order this with the following directions. (a) Ext.P4 is quashed and any action pursuant thereto is interdicted. (b) The Society will pay the retiral benefits to the petitioner, including gratuity, within a period one month from the date of receipt of a copy of this judgment. (c) The Society will also forward the pension papers of the petitioner, along with eligible contribution under the Kerala Co-operative Employees Pension Scheme, to the Kerala Co-operative Employees Pension Board, within a period of two months from today. d) The Society will be fully entitled to proceed with the Arbitration Case - which they assert they have initiated; but which the petitioner says he is now aware 12 W.P.(C).No. 20237 of 2020. of - and for such purpose, all the contentions of the rival parties with respect to the same are left open. (e) Needless to say, if, within the afore time frames, the Society is able to obtain any interdictory orders against payment of the retiral benefits - except the gratuity; arrears of salary or pension to the petitioner from the competent Arbitrator, then the afore directions will stand modulated in terms of the same. However, if no such orders are able to be obtained by the Society and they do not make payment within the time frame fixed as afore, then the respective sums will carry interest at the rate of 8% per annum from the date on which it became due, until it is actually paid. Finally, it goes without saying that while computing the Pensionary/retiral benefits, as also the arrears of 13 W.P.(C).No. 20237 of 2020. salary, if any, the entire period during which the petitioner was placed under suspension, until he superannuated, will be reckoned, as if he was in service. Taking note of the fact that the Society has not cared to comply with the earlier interim order of this Court, I order that this matter be listed after a month for reporting of compliance. **Sd/DEVAN RAMACHANDRAN JUDGE** Raj. 22.07.2022. 14 ## W.P.(C).No. 20237 of 2020. ## **`APPENDIX OF WP(C) 20237/2020`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1 ``` ``` TRUE COPY OF THE ORDER DATED 28.7.2020 ISSUED BY THE 1ST RESPONDENT. ``` ``` EXHIBIT P2 ``` ``` TRUE COPY OF THE COMMUNICATION DATED 4.8.2020 ISSUED BY THE 1ST RESPONDENT. ``` ``` EXHIBIT P3TRUE COPY OF THE COMMUNICATION NO. MEMO NO. 3/DISC/20 DATED 19.9.2020. ``` ``` EXHIBIT P4 ``` ``` TRUE COPY OF THE COMMUNICATION NO. MEMO. NO. 1/DB/DISC/20 DATED 19.9.2020. ``` ``` EXHIBIT P5 ``` ``` TRUE COPY OF THE JUDGMENT IN WPC NO. 22228/2019 DATED 21.11.2019. ``` ``` RESPONDENT EXHIBITS ``` ``` EXHIBIT R2(A) ``` ``` TRUE COPY OF ONE OF THE CASHLESS SCROLL DATED 2.7.2019. ``` ``` EXHIBIT R2(B) ``` ``` TRUE COPY OF THE RECEIPT ISSUED BY THE SKY INTERNATIONAL COURIER SERVICE, IN TOKEN OF HAVING SENT/ISSUED THE MEMO OF CHARGES DATED 27.8.2020 ON 27.8.2020. ```