High Court of KeralaSingle Judge2023-01-16The petitions are disposed of with mixed relief...

Writ Petition (Civil) Nos. 29787/2022, 31454/2022 and 35880/2022 (Hussan P.T. and others)

Case / Petition Number:WP(C) Nos. 29787/2022; 31454/2022; 35880/2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2023-01-16
Court Decision / Holding: The court disposed of the petitions with coordinated directions: (a) WP(C) 31454/2022 is dismissed and the Arbitration Court’s order is confirmed, subject to the court’s forthcoming directions in WP(C) 29787/2022 and connected matters; (b) WP(C) 35880/2022 is allowed; the Arbitration Court’s order setting aside the challenged portion is modified to require reconsideration of the liberty to initiate fresh disciplinary action after retirement, to be completed within two months; (c) liberty is granted to Hussan P.T. to pursue backwages/eligible subsistence through the Arbitration Court with fresh pleadings as needed; (d) WP(C) 29787/2022 is allowed; Ext. P5 memo of charges is set aside, with liberty to issue a fresh memo if the Court later finds in the Society’s favor; (e) WP(C) 29787/2022 is directed to disburse all eligible retiral benefits and to forward pension papers to the Statutory Pension Board within the timelines specified; (f) pension papers to be forwarded within one month after ordered steps. The judgment directs expeditious action by the Arbitration Court and ensures financial benefits for Hussan P.T. while preserving possible future actions within the court’s framework.
Final Disposition: The petitions are disposed of with mixed relief: 31454/2022 is treated largely in favor of upholding the arbitration order, albeit with directions for consistency with the later orders; 35880/2022 is allowed with a requirement to revisit the post‑retirement liberty for fresh action within two months; 29787/2022 is allowed with the Memo of Charges set aside, subject to possible fresh charges; retiral benefits and pension arrangements are adjusted as ordered, with pension papers to be sent to the Pension Board; the Court emphasizes timely finalization of ARC proceedings and equitable relief to Hussan P.T. throughout the process.

Parties to the Case

Appellants / Petitioners

Hussan P.T.
Nisha George Ann Maria Francis
Mukkam Service Co-Operative Bank Ltd.
The Board of Directors of the Mukkam Service Co-Operative Bank Ltd.
The Disciplinary Sub‑Committee of the Mukkam Service Co-Operative Bank Ltd.

Respondents

Joint Registrar of Co-Operative Societies (General), Kozhikode
Mukkam Service Co-Operative Bank Ltd. (No. F-1241)
The President, Mukkam Service Co-Operative Bank Ltd.
The Cooperative Arbitration Court (Northern), Kozhikode/Mananchira
P.T. Hussain

Legal Representation & Advocates

Counsels for Petitioners

• George Poonthottam (Senior Counsel)
• Ann Maria Francis
• P.P. Jacob (Advocate)

Counsels for Respondents

• P.P. Jacob (Advocate)

Case Synopsis & Summary

The judgment consolidates three writ petitions filed by Hussan P.T. and related parties challenging orders of a Co‑operative Arbitration Court (Northern, Kozhikode) that (i) set aside a disciplinary action against Hussan P.T. and permitted fresh action by the society even after retirement, (ii) issued a memo of charges against Hussan P.T., and (iii) directed certain backwages and retiral benefits considerations. The court relies on the Division Bench’s decision in Kodanchery Service Co-operative Bank Ltd. v. Joshy Varghese and Others (2020) to scrutinize the legality of allowing fresh disciplinary action post‑retirement. It notes the arbitration order lacked cogent reasons for permitting post‑retirement action, and that the petitioner’s backwages claim remained unaddressed. The judge therefore disposes of the petitions by (a) affirming the arbitration order in part for WP(C)31454/2022 with directions to align with subsequent directions; (b) setting aside the challenged portion of the arbitration order in WP(C)35880/2022 to reconsider liberty for fresh action post‑retirement within two months; (c) allowing backwages claims to be pursued before the Arbitration Court with fresh pleadings; (d) setting aside Ext.P5 memo of charges in WP(C)29787/2022 with liberty for a fresh memo if the Court favors the Bank’s case; and (e) directing the disbursement of retiral benefits and forwarding of pension papers as directed by the final ARBITRATOR order.

Submissions & Arguments

Contentions of Appellants / Petitioners

Hussan P.T. contends that the arbitration order permitting fresh disciplinary action after retirement is unlawful in light of the binding principle laid down in Joshy Varghese (2020) and seeks setting aside the memo of charges (Ext. P5) while claiming entitlement to retiral benefits. He argues that the arbitration court failed to provide cogent reasons for allowing post‑retirement action and that backwages deserve consideration; he requests that retiral benefits be disbursed within a timeframe and pension papers be forwarded to the Pension Board. The other applicants focus on protecting the employee’s rights and ensuring proper process, while also seeking timely resolution of the ARC proceedings and appropriate reliefs as per the court’s directions.

Contentions of Respondents

The bank and the society submit that Joshy Varghese (supra) does not overrule established disciplinary processes; the charge memo is valid, and the arbitration court’s liberty to initiate fresh disciplinary action after retirement is legitimate in the context of misappropriation allegations. They urge that the court uphold the arbitration order in its essential parts, proceed to finalize backwages and retirement benefits, and ensure that disciplinary action, if any, is pursued through due process before the Arbitration Court, with the necessary directions to complete proceedings within a specified period.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Kodanchery Service Co-operative Bank Ltd. and Others v. Joshy Varghese and Others	2020 (4) KLT 129	Positive	Cited as binding authority; the Division Bench’s view in Joshy Varghese is treated as controlling, leading the court to strike down the portion of the Arbitration Court order that permitted post‑retirement disciplinary action.
W.P.(C) 27113/2021	27113/2021	Mentioned Only	Exhibited in R3(A) and referenced in the judgment; no direct reasoning drawn from it beyond acknowledgment.
W.P.(C) 30758/2022	30758/2022	Mentioned Only	Referenced as part of the appendices; not a central authority for the decision.
Decision reported in 2007(7) SCC 81	2007(7) SCC 81	Mentioned Only	Cited in Exhibit R1(a) to illustrate a proposition; not a controlling or extensively relied upon authority in the core reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944** ## **WP(C) NO. 29787 OF 2022** ## **PETITIONER:** HUSSAN P.T., AGED 60 YEARS S/O. IMBICHIKOYA, PAZHAMTHOPPIL HOUSE, KUMARANELLOOR P.O., MUKKAM VIA, KOZHIKKODE DISTRICT - 673602. GEORGE POONTHOTTAM (SR.) NISHA GEORGE ANN MARIA FRANCIS ## **RESPONDENTS:** 1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), PUTHIYARA, PUTHIYARA P.O., KOZHIKODE - 673004 2 MUKKAM SERVICE CO-OPERATIVE BANK LTD. NO. F-1241, MUKKAM POST, KOZHIKKODE DISTRICT - 673602, REPRESENTED BY ITS SECRETARY. 3 THE PRESIDENT, MUKKAM SERVICE CO-OPERATIVE BANK LTD. NO. F-1241, MUKKAM POST, KOZHIKKODE DISTRICT - 673602. P.P.JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.01.2023, ALONG WITH WP(C).31454/2022, 35880/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 29787 OF 2022 & con.cases 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944 WP(C) NO. 31454 OF 2022** ## **PETITIONERS:** - 1 THE MUKKAM SERVICE CO-OPERATIVE BANK LTD.NO.F 1241, MUKKOM, KOZHIKODE, REPRESENTED BY ITS SECRETARY. 2 THE BOARD OF DIRECTORS OF THE MUKKAM SERVICE CO-OPERATIVE BANK LTD.NO.F 1241, MUKKOM, KOZHIKODE, REPRESENTED BY ITS PRESIDENT. 3 THE DISCIPLINARY SUB COMMITTEE OF THE MUKKOM SERVICE CO-OPERATIVE BANK LTD.NO.F 1241, MUKKOM, KOZHIKODE, REPRESENTED BY ITS CHAIRMAN. P.P.JACOB MARIYAM JACOB ## **RESPONDENTS:** 1 P.T.HUSSAIN, PAZHAMTHOPPIL HOUSE, KUMARANELLOOR P.O., MUKKAM, KOZHIKODE DISTRICT, PIN - 673 602. 2 THE CO-OPERATIVE ARBITRATION COURT, KOZHIKODE, NORTHERN ZONE, ERANJIPALAM, KOZHIKODE - 673 006. GEORGE POONTHOTTAM (SR.) NISHA GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.01.2023, ALONG WITH WP(C).29787/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 29787 OF 2022 & con.cases 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944 WP(C) NO. 35880 OF 2022** ## **PETITIONER:** HUSSAN P T., AGED 60 YEARS, S/O. IMBICHIKOYA, PAZHAMTHOPPIL HOUSE, KUMARANELLOOR P.O., MUKKAM VIA, KOZHIKKODE DISTRICT - 673602. NISHA GEORGE ANN MARIA FRANCIS ## **RESPONDENTS:** 1 MUKKAM SERVICE CO-OPERATIVE BANK LTD No.F-1241 MUKKAM POST, KOZHIKKODE DISTRICT - 673602, REPRESENTED BY ITS SECRETARY. 2 THE CO-OPERATIVE ARBITRATION COURT (NORTHERN) MANANCHIRA, KOZHIKKODE, 673022,REPRESENTED BY ITS SECRETARY. 3 THE PRESIDENT, MUKKAM SERVICE CO-OPERATIVE BANK LTD. NO. F- 1241, MUKKAM POST, KOZHIKKODE DISTRICT - 673602. BY ADV P.P.JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.01.2023, ALONG WITH WP(C).29787/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 29787 OF 2022 & con.cases 4 ## **JUDGMENT** ## **[WP(C) Nos.29787/2022, 31454/2022, 35880/2022]** The petitioner in W.P.(C) No.29787/2022 and W.P.(C) No.35880/2022 - Sri.Hussan P.T. (who will hereinafter be referred to by his name for ease), was working in the services of the Mukkam Service Co-operative Bank Ltd. (for short 'the Society'), when he was proceeded against disciplinarily, leading to imposition of penalty. It appears that he challenged the said disciplinary proceedings, by filing ARC No.63/2016 before the Co-operative Arbitration Court (Northern), Kozhikode (for short 'Arbitration Court'), which culminated in an order dated 16.04.2021 (hereinafter referred to as the “Order of the Arbitration Court”). 2. While Hussan P.T. impugns the “Order of the Arbitration Court” in W.P.(C) No.35880/2022, to the extent to which it granted permission to the Society - after having set aside the disciplinary action - to initiate fresh one; the Society impugns it to the extent to which it has set aside the disciplinary action. 3. In addition, Sri.Hussan P.T. has filed W.P.(C) WP(C) NO. 29787 OF 2022 & con.cases 5 No.29787/2022 impugning Ext.P5 therein, which is the Memo of Charges now issued by the Society, asserting that it is untenable; especially since he has now retired from service; and thus seeking that his retiral benefits be directed to be disbursed to him by the Society, within a time frame to be fixed by this Court. 4. I have heard Sri.George Poonthottam – learned senior counsel, instructed by Smt.Ann Maria Francis, appearing for Sri.Hussan P.T.; and Sri.P.P.Jacob – learned standing counsel for the Society. 5. Since the factual circumstances involved in these cases are entwined to each other; and the reliefs sought for are interdependent, I deem it appropriate to dispose of them all through this judgment. 6. As seen from the narrative afore, the genesis of the controversy is in the disciplinary action initiated by the Society against Hussan P.T. He approached the Arbitration Court and obtained the “Order of the Arbitration Court”, which concluded that the Charge Memo issued against him by the Disciplinary Sub Committee of the Society was in violation of law, particularly in view of the declarations of this WP(C) NO. 29787 OF 2022 & con.cases 6 Court in **Kodanchery Service Co-operative Bank Ltd. and Others v. Joshy Varghese and others** [2020 (4) KLT 129]. 7. The Society impugns the “Order of the Arbitration Court” on the ground that **Joshy Varghese** (supra) has no relevance to the facts of this case; while Sri.Hussan P.T. contends that the same is proper, but that the liberty given to the Society to initiate fresh disciplinary action against him “even if the plaintiff has crossed superannuation age” (sic.) is peremptorily illegal and unlawful. 8. Sri.P.P.Jacob – learned standing counsel for the Society, vehemently argued that **Joshy Varghese** (supra) does not lay down the correct law and that the Charge Memo issued by even a statutory Sub Committee is valid. 9. I am afraid that this Court cannot accept this argument of Sri.P.P.Jacob at this stage because, **Joshy Varghese** (supra) has been delivered by a learned Division Bench; and see no reason to differ from its view, thus being bound by it. 10. That said, the further question with respect to the “Order of the Arbitration Court” is whether it was right in having allowed liberty to the Society to initiate fresh WP(C) NO. 29787 OF 2022 & con.cases 7 disciplinary action against Sri.Hussan P.T., whether he has crossed the age of superannuation or otherwise. This is certainly a drastic order, which the Arbitration Court ought to have supported with cogent and tenable reasons. However, the impugned order would clearly demonstrate that no such reasons have been given by the Arbitration Court; but that, after it found against the Charge Memo issued by the Society, based on **Joshy Varghese** (supra), it mechanically went on to say that the Society can take action against Sri.Hussan P.T., even if he has crossed the age of superannuation. How such a conclusion was arrived at is not discernible from the order; and therefore, am certain that it will require to be reconsidered by the said Court appositely. 11. This course is also warranted because the claim of Sri.Hussan P.T. for backwages, while kept out of service by the Society, has not been considered by the Arbitration Court, though it is impelled as a contention before the said Court. I am, therefore, of the view that the said Court must reconsider that aspect also, while doing as afore. 12. That said, I am told at the Bar by Sri.P.P.Jacob, and it is affirmed by learned senior counsel - Sri.George WP(C) NO. 29787 OF 2022 & con.cases 8 Poonthottam, that, through Ext.R1(e) judgment, produced along with W.P.(C) No.35880/2022, this Court has already directed the competent Arbitrator to dispose of the Arbitration Case filed by the Society against Sri.Hussan P.T., on the imputation that he had misappropriated large sums of money, within a time frame. 13. As is evident from the said judgment, this Court has already fixed a time limit of eight months from the date of its receipt. This judgment was delivered on 27.10.2022 and obviously, the Arbitration Court is expected to deliver final orders in the said ARC at least by June, 2023. 14. It is certainly open to the Society to move the Arbitration Court for necessary orders against Sri.Hussan P.T.; and I am, therefore, of the view that he cannot be allowed to be without any remedy indefinitely, with respect to his retiral benefits. In the afore circumstances, I dispose of these matters in the following manner: (a) W.P.(C) No.31454/2022 is dismissed and the “Order of the Arbitration Court” impugned therein is confirmed, subject to the directions that this Court will presently make in WP(C) NO. 29787 OF 2022 & con.cases 9 W.P.(C) No.35880/2022. (b) W.P.(C) No.35880/2022 is allowed and the “Order of the Arbitration Court”, to the extent impugned, is set aside; with a consequential direction to the said Court to reconsider the grant of liberty to the Society to initiate fresh disciplinary action against Sri.Hussan P.T. even after his retirement. This shall be done as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. (c) I also leave liberty to the petitioner to move the Arbitration Court with a claim for backwages/eligible subsistence allowance during the period when he was kept out of service - either under suspension or orders of termination by the Society; and if it is so impelled, the same shall also be considered by it, after hearing both sides and its opinion reflected in the resultant order. For this purpose, I leave liberty to both sides to make fresh pleadings and counter pleadings, however, solely confined to this issue, within a time frame that may be fixed by the said Court. (d) W.P.(C) No.29787/2022 is allowed and Ext.P5 Charge Memo issued by the Society is set aside; however, with liberty WP(C) NO. 29787 OF 2022 & con.cases 10 being reserved to them to issue a fresh one, in case the said Court finds in their favour in terms of direction (b) afore. (e) W.P.(C) No.29787/2022 is further ordered, directing the Society to disburse to Sri.Hussan P.T. all eligible retiral benefits on the culmination of the period fixed by this Court in Ext.R1(e) judgment, produced along with W.P.(C) No.35880/2022, subject to any orders or interdiction that may be issued by it. (f) As regards the pensionary benefits of Hussan P.T. is concerned, his pension papers shall be forwarded by the Society to the Statutory Pension Board, subject to the orders to be issued by the Arbitration Court in terms of directions (b) and (c) above, within a period of one month thereafter. ## **Sd/- DEVAN RAMACHANDRAN** **JUDGE** stu WP(C) NO. 29787 OF 2022 & con.cases 11 ## **APPENDIX OF WP(C) 31454/2022** PETITIONER EXHIBITS Exhibit P1 TRUE PHOTOCOPY OF THE SUSPENSION ORDER DATED 22/11/13 ISSUED BY THE SECOND PETITIONER. - Exhibit P2 TRUE PHOTOCOPY OF THE CHARGE MEMO DATED 23/4/2014 ISSUED BY THE DISCIPLINARY SUB COMMITTEE. - Exhibit P3 TRUE PHOTOCOPY OF THE AWARD IN A.R.C.63/2016 DATED 16/4/2021 PASSED BY THE CO-OPERATIVE ARBITRATION COURT. - Exhibit P4 TRUE PHOTOCOPY OF THE JUDGMENT IN WP(C) 27113/2021 DATED 4/12/2021. - Exhibit P5 TRUE PHOTOCOPY OF THE CHARGE SHEET ISSUED BY THE SECOND PETITIONER DATED 5/9/2022. - Exhibit P6 TRUE PHOTOCOPY OF THE RESOLUTION OF THE DISCIPLINARY SUB COMMITTEE DATED 22/9/2022. WP(C) NO. 29787 OF 2022 & con.cases 12 ## **APPENDIX OF WP(C) 35880/2022** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE SUSPENSION ORDER DATED 22.11.2013 ISSUED BY THE 1ST RESPONDENT BANK. - Exhibit P2 TRUE COPY OF THE MEMO OF CHARGES DATED 23.04.2014 ISSUED BY THE CHAIRMAN OF THE DISCIPLINARY COMMITTEE. - Exhibit P3 TRUE COPY OF THE ORDER OF THE ARBITRATION COURT (NORTHERN), KOZHIKKODE IN ARC NO. 63/2016 DATED 16.04.2021. - Exhibit P4 TRUE COPY OF THE MEMO OF CHARGES DATED 05.09.2022 ISSUED TO THE PETITIONER BY THE BANK. RESPONDENT EXHIBITS Exhibit R1(a) TRUE COPY OF THE DECISION REPORTED IN 2007(7) SCC 81 PARA 5 Exhibit R1(b) TRUE COPY OF THE CHARGE MEMO DATED 23.4.2014 ISSUED TO THE PETITIONER BY THE DISCIPLINARY COMMITTEE Exhibit R1(c) TRUE COPY OF THE TERMINATION ORDER DATED 26.12.2015 ISSUED BY THE BANK TO THE PETITIONER Exhibit R1(d) TRUE COPY OF TE A.R.C 1247/2016 DATED 3.11.2016 FILED BEFORE THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES Exhibit R1(e) TRUE COPY OF THE JUDGEMENT IN W.P.(C) 30758/2022 DATED 27.10.2022 Exhibit R1(f) TRUE PHOTOCOPY OF THE AWARD IN A.R.C 63/2016 DATED 16.4.21 WP(C) NO. 29787 OF 2022 & con.cases 13 ## **APPENDIX OF WP(C) 29787/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE INTERIM ORDER DATED. 02.09.2022 IN W.P.(C) NO. 28633 OF 2022 PASSED BY THIS HON'BLE COURT. - Exhibit P2 TRUE COPY OF THE SUSPENSION ORDER DATED 22.11.2013 ISSUED BY THE 1ST RESPONDENT BANK. - Exhibit P3 TRUE COPY OF THE MEMO OF CHARGES DATED 23.04.2014 ISSUED BY THE CHAIRMAN OF THE DISCIPLINARY COMMITTEE. - Exhibit P4 TRUE COPY OF THE ORDER OF THE ARBITRATION COURT (NORTHERN), KOZHIKKODE IN ARC NO. 63/2016 DATED 16.04.2021 - Exhibit P5 TRUE COPY OF THE MEMO OF CHARGES DATED 05.09.2022 ISSUED TO THE PETITIONER BY THE BANK. - Exhibit P6 TRUE COPY OF THE LETTER DATED 04.01.2022 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT BANK. - Exhibit P7 TRUE COPY OF THE LETTER DATED 31.05.2022 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT BANK. Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 16/09/2022 IN W.P(C) 28633/2033 - Exhibit P9 TRUE COPY OF THE COMMUNICATION DATED 24/09/2022 ISSUED BY THE CHAIRMAN OF THE SUB COMMITTEE Exhibit P10 TRUE COPY OF THE LETTER DATED 28/09/2022 ISSUED BY THE ENQUIRY OFFICER WP(C) NO. 29787 OF 2022 & con.cases 14 RESPONDENT EXHIBITS Exhibit R3(A) TRUE COPY OF THE JUDGMENT IN W.P(C) 27113/2021 DATED 04/12/2021 Exhibit R3(B) TRUE COPY OF THE MEMO OF CHARGE DATED 05/09/2022 ISSUED BY THE COMMITTEE Exhibit R3(C) TRUE COPY OF THE RESOLUTION OF THE DISCIPLINARY SUB COMMITTEE DATED 22/09/2022 Exhibit R3(D) TRUE COPY OF THE A.R.C. 1247/2016 DATED 03/11/2016 OF HE 1ST RESPONDENT