WA.No. 1337 of 2015 IN WPC. 30565/2007

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 16TH DAY OF JULY 2018 / 25TH ASHADHA, 1940 ## **WA.No. 1337 of 2015 IN WPC. 30565/2007** AGAINST THE JUDGMENT IN WP(C) 30565/2007 of HIGH COURT OF KERALA DATED 29-01-2015 -------- ## APPELLANTS/PETITIONERS: - 1 THE PRESIDENT, KIZHAKKAMBALAM SERVICE CO-OPERATIVE BANK LIMITED NO.83, KIZHAKKAMBALAM PO, ERNAKULAM DISTRICT. 2 THE KIZHAKKAMBALAM SERVICE CO-OPERATIVE BANK LIMITED NO.83 KIZHAKKAMBALAM PO, ERNAKULAM DISTRICT REPRESENTED BY ITS SECRETARY. BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SRI.C.DINESH SMT.ASHA BABU SRI.G.RENJITH ## RESPONDENTS/RESPONDENTS: 1. THE GOVERNMENT OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 695001 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES ERNAKULAM, KOCHI-682016. 3. SHRI. M.N. CHANDRAN MULACKAL HOUSE, KANINADU PO, PUTHENCRUZ, ERNAKULAM DISTRICT 682308 R3 BY ADV. SRI.P.V.BABY R3 BY ADV. SRI.A.N.SANTHOSH R1&R2 BY SR. GOVERNMENT PLEADER SMT.K.R.DEEPA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-07-2018, THE COURT ON **16-07-18** , DELIVERED THE FOLLOWING: ## **V. CHITAMBARESH & SATHISH NINAN, JJ.** **= = = = = = = = = = = = = = = = = = W. A. No.1337 of 2015** **= = = = = = = = = = = = = = = = = = Dated this the 16[th] day of July, 2018** ## **J U D G M E N T** ## **Sathish Ninan, J.** Disciplinary proceedings were initiated by the appellant Bank against the third respondent who was working as a Salesman therein. Though he initially sought for adjournment of the proceedings on medical grounds, the proceedings culminated ex parte. As per Ext.P5 dated 01.12.1997, the third respondent was dismissed from service. The third respondent challenged the same before the Joint Registrar of Co-operative Societies under Rule 176 of the Co-operative Societies Rules. As per order dated 05.06.2001, it was held that the enquiry was violative of the principles of natural justice and the order of dismissal was set aside, remitting the matter back for de novo enquiry. Both sides filed appeals before the Government. As per order dated 29.09.2001, the appeals were disposed of directing W. A. No.1337 of 2015 :- 2 :- the Joint Registrar to re-consider the matter. The appellants approached this Court in O.P. No.32552/2001 wherein as per judgment dated 19.03.2002, the order passed by the Government was set aside and the third respondent was directed to prefer an appeal to the Committee of the Bank. The appeal filed pursuant thereto was dismissed by the committee. The third respondent sought to approach the Joint Registrar under Rule 176 of the Cooperative Societies Rules. As per Ext.P7 order, the order of dismissal (Ext.P5) was set aside. Ext.P7 was challenged by the Bank before the Government. As per Ext.P10 dated 11.09.2007, the appeal was dismissed. Challenging Exts.P7 and P10 orders, the writ petition was filed. 2. The learned single Judge confirmed the findings in Exts.P7 and P10 that the disciplinary proceedings were conducted in violation of Rule 198 of the Co-operative Societies Rules, thereby affirming Exts.P7 and P10 orders. 3. Heard Sri.K.Ramakumar, the learned Senior W. A. No.1337 of 2015 :- 3 :- Counsel on behalf of the appellants and Sri.P.V.Baby, the learned counsel appearing for the third respondent and the learned Government Pleader. 4. The learned single Judge affirmed the factual findings in Exts.P7 and P10 orders, regarding violation of Rule 198, on the following aspects:- - (a) Memo of charges were not issued to third respondent. - (b) No intimation was given to the third respondent regarding appointment of enquiry officer. - (c) Regarding the posting of the enquiry on 06.08.1997 which was the last date of the enquiry proceedings, no intimation was issued to the third respondent. 5. Rule 198(2) of the Co-operative Societies Rules reads thus: “No kind of punishment shall be awarded to an employee unless he has been informed in writing of the grounds on which it is proposed to take action W. A. No.1337 of 2015 :- 4 :- against and he has been afforded an opportunity including a personal hearing to defend himself. Every order awarding punishment shall be communicated to the employee concerned in writing stating the grounds on which the punishment has been awarded.” Evidently, it incorporates the principles of natural justice, especially granting of sufficient opportunity of hearing to the delinquent. Factual findings by the statutory authorities as affirmed by the learned single Judge, noticed supra, clearly spells out violation of Rule 198(2). Though the learned Senior Counsel for the appellants would, referring to Exts.P4 and P5, contend that the third respondent had sufficient notice of the proceedings as contemplated under Rule 198(2), no material has been brought to our notice, to discredit the factual findings regarding non-service of charge memo, notice regarding appointment of enquiry officer and notice regarding the last hearing date of the disciplinary proceedings. 6. Though the learned Senior Counsel would W. A. No.1337 of 2015 :- 5 :- contend that Ext.P6 was only an appeal preferred before the Joint Registrar and he had no authority to pass orders treating it as one under Rule 176 of the Co-operative Societies Rules, the last paragraph of Ext.P6 petition as well as the first paragraph of the statement submitted by the Bank before the Joint Registrar, demonstrate otherwise. It is specifically stated therein that the application is one under Rule 176. The parties have understood the proceedings before the Joint Registrar to be one under Rule 176. Though it is argued that notice contemplated for a proceeding under Rule 176 has not been issued to the Bank, the said contention cannot be sustained since admittedly the Bank had notice of the proceedings before the Joint Registrar, as is evident from Ext.P7 order. 7. As regards the contention regarding lack of jurisdiction to entertain the petition under Rule 176, in _**Chithambaran v. Registrar of Co-op. Societies**_ _**[1996 (2) KLT 66]**_ , a Division Bench of this Court W. A. No.1337 of 2015 :- 6 :- relying upon _**P.S. Co-op. Society v. Rugmini Amma [1996 (1) KLT 100]**_ affirmed that in matters relating to disciplinary proceedings, Registrar has the power under Rule 176 to rescind the resolution if it falls within the mischief mentioned in the Section. The said judgments were followed by this Court in _**Trivandrum Co-op. Urban Bank Ltd. v. Jt. Registrar of Co-op. Societies [2001 (1) KLT 99]**_ . As per Act 1 of 2000, Section 69 of the Co-operative Societies Act was amended. The amendment came into force with effect from 02.01.2003. _**In Prakasini v.**_ _**Joint Registrar [2006 (1) KLT 199]**_ , this Court held that after the amendment, disputes in connection with employment, falls for adjudication under Section 69 of the Co-operative Societies Act and there is a statutory exclusion of the authority of the Registrar under Section 176 of the Co-operative Societies Rules. In the instant case, as noticed supra, the order of dismissal was passed on 01.12.1997. The powers under Rule 176 was invoked as early as on 10.12.1997. We do not think that in W. A. No.1337 of 2015 :- 7 :- the present case, the issue relating to jurisdiction would arise. Since it has been found that the dismissal is in violation of Rule 198(2) of the Co-operative Societies Rules, in the particular facts and circumstances of the case, the resolution was liable to be rescinded under Rule 176. No interference is called for with the judgment of the learned single judge. The appeal is dismissed. **Sd/V. CHITAMBARESH JUDGE** **Sd/SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge W. A. No.1337 of 2015 :- 8 :-