W.P.(C) No. 7988 of 2015 (W) - Dyuthi M.T (Junior Clerk) v. Mattancherry Mahajanik Co-operativ e Urban Bank Ltd & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY, THE 28TH DAY OF JANUARY 2016/8TH MAGHA, 1937 WP(C).No. 7988 of 2015 (W) --------------------------- PETITIONER: -------------- DYUTHI M.T (JUNIOR CLERK), SIVADAM, CC 15/187B RAMESWARAM MUNDAMVELI P.O., KOCHI, ERNAKULAM. BY ADV. SRI.P.P.JACOB RESPONDENTS: ---------------- 1. MATTANCHERRY MAHAJANIK CO-OPERATIVE URBAN BANK LTD NO.665 P.O.BOX NO.304, PALLIARAKAVU ROAD, KOCHI - 682 002, REPRESENTED BY ITS GENERAL MANAGER. 2. THE MANAGING COMMITTEE OF THE MATTANCHERRY MAHAJANIK CO-OPERATIVE URBAN BANK LTD.NO.665 P.O.BOX NO.304 PALLIARAKAVU ROAD, KOCHI - 682 002, REPRESENTED BY ITS PRESIDENT. 3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), ERNAKULAM, CIVIL STATION, B-2 BLOCK, 5TH FLOOR KAKKANADU, KOCHI - 682 030. R1 & 2 BY ADV. SRI.GEORGE POONTHOTTAM R BY SRI. G. GOPAKUMAR, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7988 of 2015 (W) : 2 : ## **APPENDIX** PETITIONER'S EXHIBITS : EXT.P-1: TRUE PHOTOCOPY OF THE PROCEEDING ISSUED BY THE FIRST RESPONDENT DATED 5.5.1999. EXT.P-2: TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE PETITIONER TO THE FIRST RESPONDENT DATED 14.3.2007. EXT.P-3: TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER DATED 5.4.2007. EXT.P-4: TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT DATED 4.8.2008. EXT.P-5: TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER DATED 5.6.2009. EXT.P-6: TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE PETITIONER TO THE ADMINISTRATOR DATED 3.6.2014. EXT.P-7: TRUE PHOTOCOPY OF THE FIXATION STATEMENT FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 2.6.2014. EXT.P-8: TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE PETITIONER TO THE SECOND RESPONDENT DATED 1.1.2015. EXT.P-9: TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER DATED 7.1.2015. EXT.P-10: TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER DATED 27.2.2015. EXT.P-11: TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT DATED 14.06.1999. EXT.P-12: TRUE PHOTOCOPY OF THE LETTER FILED BY THE PETITIONER DATED 07.04.2005. EXT.P-13: TRUE PHOTOCOPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 03.06.2005. EXT.P-14: TRUE PHOTOCOPY OF THE LETTER DATED 14.03.2007 FILED BY THE PETITIONER. EXT.P-15: TRUE PHOTOCOPY OF THE LETTER DATED 05.04.2007 ISSUED BY THE BANK TO THE PETITIONER. EXT.P-16: TRUE PHOTOCOPY OF THE JUDGMENT IN W.P.(C) NO. 16249/2006. RESPONDENTS' EXHIBITS : NIL /True Copy/ P.A to Judge. rv ## DAMA SESHADRI NAIDU, J. ---------------------------------- W.P. (C) No. 7988 of 2015 (W) ---------------------------------Dated this the 28[th] day of January, 2016. ## JUDGMENT Heard the learned counsel for the petitioner and the learned counsel for the respondent Bank, apart from perusing the record. 2. The petitioner, a Junior Clerk in the first respondent Bank, assails what is said to be the unilateral action of the managing committee, the second respondent, in withdrawing the benefit of higher grade pay earlier granted to him by the Administrator of the society. 3. As can be seen from the endorsement on Ext.P6 application submitted by the petitioner, the Administrator of the first respondent society, then at the helm of the affairs, granted to the petitioner the benefit of higher grade pay. In the course of time, the second respondent— the managing committee—succeeded the Administrator. 4. Having decided to withdraw the benefit granted to the petitioner earlier, the managing committee seems to have directed the General Manager to the said effect. He, in turn, issued Ext.P9 notice W.P.(C.) No. 7988/2015 -2- dated 07.01.2015 to the petitioner accordingly. Despite Ext.P8 representation/explanation said to have been submitted by the petitioner, the General Manager, presumably under the direction of the managing committee, went ahead and issued Ext.P10 proceedings deciding to deduct from the salary of the petitioner on monthly basis the amounts that had been paid till then in the name of the higher grade pay. Aggrieved, the petitioner has filed the present writ petition. 5. Though the learned counsel for the petitioner has advanced his submissions on various counts, the underlining theme of the submissions is that both Exts.P9 and P10 orders are in violation of the principles of natural justice. He has further contended that the second respondent has no jurisdiction to recall or withdraw the benefit granted earlier by the Administrator. In support of his submissions, the learned counsel has drawn my attention to Section 28 of the Kerala Co-operative Societies Act and Rule 176 of the Kerala Co-operative Societies Rules. He has also placed reliance on Jecco E.G and another v. Thrissur Municipal Corporation[1] to hammer home his contention that an authority is expected to discharge his duties > 1 2015(5)KHC 705 W.P.(C.) No. 7988/2015 -3- strictly within the four corners of the statutory mandate. 6. Sri. Arun Chandran, the learned counsel representing learned counsel for the respondent Bank, on the other hand, has tried with equal vehemence to refute the petitioner's contentions. To begin with, he has contended that the petitioner has essentially raised a service dispute, regarding which he has an efficacious alternative remedy in the form of Arbitration proceedings under Section 69 of the Act. Further, the learned counsel has also advanced arguments on the merits of the matter, which this Court is not inclined to go into for the reasons that follow. 7. The learned counsel has also pointed out that there is chronological incongruity in Exts.P7 and P8 that they were shown to be prior to the orders passed by the authorities, though, in fact, the orders were passed in consequence to those representations. 8. On this count, to be fair to the petitioner, I must observe that the learned counsel for the petitioner has submitted that for want of written communication at the initial stage from the respondent Bank, the petitioner, having obtained oral information, made his representations and explanations. Under those circumstances, the W.P.(C.) No. 7988/2015 -4- orders passed by the authorities seem to be anterior to the petitioner's applications, in response to which, actually the orders were passed, though. As such, given the indisputable fact that the respondent Bank did pass orders without any notice withdrawing the benefit conferred on the petitioner earlier, the said anachronism, as is evident from Exts.P7 and P8, does not detain this Court any longer from proceeding further. 9. At this juncture, the learned counsel for the respondent Bank, appreciably, has contended that Ext.P8 explanation does indicate that the petitioner had knowledge and that his explanation had been considered prior to the authorities' passing Exts.P9 and P10 orders. 10. The respondent Bank, I am afraid, cannot blow hot and cold. On one hand, it has contended that the very representation and explanation are anterior to the orders passed by the authorities. On the other hand, it contends that the petitioner has submitted his explanation after obtaining information. The fact, however, remains that the respondent Bank has at no point of time put the petitioner on notice concerning its proposed action. It is evident from Ext.P9 that W.P.(C.) No. 7988/2015 -5- the managing committee unilaterally decided to withdraw the service benefit. 11. Under the facts and circumstances, I am of the opinion that Exts.P9 and P10 cannot be sustained for they violate the principles of natural justice. Accordingly, they are set aside. I hasten to add that the first respondent Bank is at liberty to re-consider the issue after affording an opportunity of hearing to the petitioner i.e., after putting the petitioner on notice and take a decision on the issue whether the petitioner has been validly granted the benefit of higher grade pay. 12. Needless to observe that given the contention on the part of the learned counsel for the petitioner that the second respondent is not competent to withdraw the benefit conferred on an employee earlier, the petitioner is at liberty to raise at the time of hearing all the pleas available to him, including that of the competence of the second respondent to withdraw the benefit. 13. Since Exts.P9 and P10 are set aside, it is deemed that Ext.P7 stands restored. On that count, until the managing committee takes a decision on the issue of higher grade pay, it shall continue to pay salary to the petitioner inclusive of the higher grade pay. W.P.(C.) No. 7988/2015 -6- Nevertheless, the managing committee can as well adjust the amounts by way of deduction, etc., once finally it is found that the petitioner is not entitled to any such benefit. 14. As a matter of abundant caution, this Court places on record that while disposing of the writ petition this Court has not addressed the issue on merits. And any observation, incidentally or otherwise, made touching upon the merits, shall be only for the limited purpose of adjudication of the writ petition, but not to the prejudice of either the respondent Bank or the petitioner employee. With the above observations, this writ petition stands disposed of. No order as to costs. sd/- DAMA SESHADRI NAIDU, JUDGE. rv W.P.(C.) No. 7988/2015 -7- .