IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 WP(C).No. 11467 of 2008(M) ------------------------------------- PETITIONER(S): ------------------------- K.S.GIRIJA,AGED 48 YEARS,D/O.SREEDHARAN NAIR,PAINKAL HOUSE,KOZHIPPALLY P.O, KOTHAMANGALAM-30. BY ADV. MR.P.GOPINATH RESPONDENT(S): -------------------------- 1. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, (GENERAL)ERNAKULAM. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,(GENERAL)ERNAKULAM. 3. KOTHAMANGALAM HOUSING CO-OPERATIVE SOCIETY LTD.,E-314,KOTHAMANGALAM P.O, PIN-686 691,REPRESENTED BY ITS SECRETARY. 4. P.P.UTHUPPAN,PRESIDENT,KOTHAMANGALAM HOUSING CO-OPERATIVE SOCIETY LTD,E-314, RESIDING AT PARACKAL HOUSE,KARUKANDOM P.O, KOTHAMANGALAM DISTRICT. 5. ELDHO JOSEPH,SECRETARY,KOTHAMANGALAM HOUSING CO-OPERATIVE SOCIETY LTD,E-314, KOTHAMANGALAM P.O,PIN-686 691. BY GOVERNMENT PLEADER MR.I.V.PRAMOD FOR R1&2 BY ADVS.MR.P.V.BABY FOR R3-5 MR.A.N.SANTHOSH FOR R3-5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.11467/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE FEEDER CATEGORY RULES APPROVED BY THE 2ND RESPONDENT ON 1.10.1997. P2:- COPY OF THE APPLICATION DT. 20.3.06 TO THE 3RD RESPONDENT. P3:- COPY OF THE DECISION DT. 30.6.06 TAKEN BY THE MANAGING COMMITTEE OF THE 3RD RESPONDENT SOCIETY. P4:- COPY OF THE PETITION DT. 18.7.07 TO THE 2ND RESPONDENT. P5:- COPY OF THE ORDER/COMMUNICATION NO.4110/06/L.DIS DT. 2.3.07 ISSUED BY THE 2ND RESPONDENT. P6:- COPY OF THE MEMO ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. P7:- COPY OF THE TYPED COPY OF EXT.P6 MEMO. P8:- COPY OF THE EXPLANATION DT. 26.3.07 SUBMITTED BY THE PETITIONER. P9:- COPY OF THE PETITION DT. 22.5.07 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P10:- COPY OF THE LETTER DT. 20.7.07 TO THE PETITIONER FROM THE 3RD RESPONDENT. P11:- COPY OF THE COMMUNICATION NO.HM.3547/07/K.DIS DT. 25.8.07 ISSUED BY THE 2ND RESPONDENT. P12:- COPY OF THE MEMO OF CHARGES ALONG WITH THE NOTICE DT. 30.8.07. P13:- COPY OF THE REPLY DT. 10.9.07 TO THE MEMO OF CHARGES. P14:- COPY OF THE LETTER ISSUED BY THE SECRTARY REGARDING THE WORK IN PROBABILITY OF THE PETITIONER. P15:- COPY OF THE LETTER DT. 8.3.07 FROM THE SECRETARY TO THE PETITIONER. P16;- COPY OF THE ORDER DT. 1.10.07 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P17:- COPY OF THE PETITION DT. 1.10.07 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P18:- COPY OF THE LETTER NO.74/07-08 DT. 26.12.07 REGARDING THE OPPORTUNITY OF THE EENQUIRY OFFICER. P19:- COPY OF THE REQUEST DT. 14.1.08 SUBMITTED BY THE PETITIONER. P20:- COPY OF THE PROCEEDINGS OF THE DOMESTICE ENQUIRY DT. 18.1.08. W.P.(C) NO. 11467/2008 P21:- COPY OF THE PETITION DT. 10.3.08 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P22:- COPY OF THE REPRESENTATION DT. 10.3.08 SUBMITTED BEFORE THE IST RESPONDENT. P23:- COPY OF THE MINUTES OF THE PROCEEDINGS OF THE ENQUIRY CONDUCTED ON 4.2.08. P24:- COPY OF THE LIST OF WITNESSES SUBMITTED BY THE 3RD RESPONDENT. P25:- COPY OF THE LETTER DT. 22.3.08 FROM THE ENQUIRY OFFICER TO THE PETITIONER, P26:- COPY OF THE COMPLAINT/PETITION DT. 29.8.07 FILED BY THE PETITIONER BEFORE THE WOMEN'S COMMISION. P27:- COPY OF THE PETITION DT. 6.11.07 FILED BY THE PETITIONER BEFORE THE WOMEN'S COMMISSION. P28:- COPY OF THE LETTER NO.103/07-08 DT. 22.3.08 TO THE PETITIONER. P29:- COPY OF THE LETTER DT. C. NO.C2/3666/EKM/07/KWC DT. 15.7.08 ALONG WITH A COPY OF THE REPORT PREPARED BY THE MEMBER, KERALA WOMEN'S COMMISSION. P30:- COPY OF THE NOTICE DT. 1.9.08 ISSUED BY THE 3RD RESPONDENT. P31:- COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER ALONG WITH THE COVERING LETTER DT. 19.2.09. P32:- COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER DT. 7.3.09. P33:- COPY OF THE DECISION DT. 16.2.09. P34:- COPY OF THE DECISION DT. 16.3.09. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE COMPLAINT DT. 29.8.07 FILED BY THE PETITIONER BEFORE THE KERALA WOMEN'S COMMISSION. R3(b):- COPY OF THE NEWS ITEM APPEARED IN THE DESHABHIMANI DAILY DT. 9.10.07. R3(c):- COPY OF THE NEWS ITEM APPEARED IN THE MATHRUBHUMI DAILY DT. 25.9.07. R3(d):- COPY OF THE NEWS ITEM APPEARED IN THE MANGALAM DAILY DT. 25.9.07. R3(e):- COPY OF THE NEWS ITEM APPEARED IN THE JANAYUGAM DAILY DT. 25.9.07. W.P.(C) NO.11467/2008 R3(f):- COPY OF THE NEWS ITEM APPEARED IN THE VEEKSHANAM DAILY DT. 25.9.07. R3(g):- COPY OF THE ARGUMENT NOTE DT. 12.2.09 SUBMITTED BY THE PRESIDENT OF THE SOCIETY BEFORE THE REGISTRAR OF CO-OPERATIVE SOCIETIES. R3(h):- COPY OF THE NEWS ITEM APPEARED IN THE MATHRUBHUMI DAILY DT. 28.8.08. R3(i):- COPY OF THE NEWS ITEM APPEARED IN THE MALAYALA MANORAMA DAILY DT. 28.8.08. R3(j):- COPY OF THE NEWS ITEM APPEARED IN THE DESABHIMANI DAILY DT. 28.8.08. TRUE COPY P.S. TO JUDGE TSS ANTONY DOMINIC,J. --------------------- W.P.(C).No.11467 OF 2008 ------------------------ Dated this the 5th day of June, 2009. JUDGMENT On 16.6.1991, Petitioner commenced service under the 3rd respondent Co-operative Society as junior clerk. In 2001 she was promoted as a Senior Clerk and on 1.12.2004, she was again promoted as Accountant. While so, on 30.6.2006, a vacancy in the post of Secretary arose and the petitioner staked her claim for promotion. However, according to her, ignoring her rightful claim, a senior clerk in the Bank was promoted and as a result of which she moved the 2nd respondent for necessary directions. It is stated that the 2nd respondent issued certain directions and that infuriated by those orders, without any basis, the President of the Society, issued Exts.P6 and P7 memos, alleging that the petitioner was absent in the Bank during working hours and that when questioned she behaved rudely and calling WP(c).No.11467/08 2 upon her to show cause why disciplinary proceedings shall not be initiated against her. Petitioner submitted Ext.P8 reply denying the allegations. It is stated that in terms of the provisions contained in Rule 198 of the Kerala Cooperative Societies Rules, a sub Committee was formed by Ext.P10 to conduct an enquiry into the allegations of misconduct against the petitioner. The Sub Committee issued Ext.P12 notice along with a memo of charges, and on its receipt, petitioner filed Ext.P13 explanation, again denying the allegations. 2. Thereafter by Ext.P16 dated 1.10.2007, petitioner was ordered to be placed under suspension and while the domestic enquiry was pending, petitioner filed Ext.R3(a) complaint before the Kerala State Women's Commission alleging harassment against the President and the Commission issued notice to the President of the Society and Ext.19 is its report, which reads as under. “Report by Prof. Meenaksy Thampan after taking the statement of the petitioner Girija and counter petitioner Uthuppan- WP(c).No.11467/08 3 12/3/2008 at the Guest House Ernakulam assisted by advocate Ramesh Chandran, Irinjalakuda. The complainant Girija was appointed in 1991 in the Housing Co-operative society number E 314, Kothamangalam. Subsequently she was promoted as an accountant and her appointment was approved by the Department. The work allotment to her was perused by me and it can be seen that she had to work hard to finish it. The society building is three storied and the files are kept in the topstorey(including the accounts books) Copy of the papers submitted before me show that initially five employees were there in the society and the only female employee was the complainant Girija. The attender who was working as a clerk was promoted and given the post of the Secretary, overlooking the seniority of Smt. Girija. The president of the society Sri. Uthuppan had intention to harass the only female employee and made unwelcome sexual advances which Smt. Girija resisted. That was the reason why she was denied her legitimate claim for promotion as Secretary. All the Director Board members seem to have been influenced by the president, Sri. Uthuppan to execute his decision, The department order to promote the complainant as the Secretary was throttled by the Director Board members. The complainant's claim for promotion WP(c).No.11467/08 4 should be accepted by the Govt. and the commission recommends to the head of the Co-operative Dept. to see that harassment in the work place meted out to her should be stopped and the complainant should be given her legitimate claim for promotion as secretary without any break of service. Because of the harassment at work place she had to undergo a major operation which compelled her to take leave for months together. It seems that there has been committee formed for enquiry from the Board of members which was also biased. The proper thing is to constitute independent grievance redressal cell according to Supreme Court guidelines. This may be expedited since the mental agony of Smt. Girija cannot be prolonged for long. (emphasis supplied) 3. The President of the society challenged Ext.P29 order before this court and in the judgment in Puthuppan V. Girija (2008(4) KLT 189) writ petition was disposed of. Taking note of the fact that the report of the Commissioner has been forwarded to the Registrar of Co-operative Societies, this court held that it is appropriate that the 3rd respondent, Registrar of the Co-operative Societies, shall WP(c).No.11467/08 5 look into the grievances of the petitioner, as to whether she has been denied the due opportunity of promotion. It is stated at the bar by both sides that, in pursuance to the directions in the judgment, the Registrar of Co-operative Societies heard both parties and orders have not been pronounced. 4. After the writ petition filed by the President of the Society was disposed of and during the course of the enquiry that was initiated pursuant to Ext.P12, Ext.P30, a show cause notice was issued, calling upon the petitioner to show cause why she shall not be proceeded for the misconducts alleged therein. The misconducts alleged against the petitioner in Ext.P30 are that she had made defamatory allegations against the Society in general and the President in particular in Ext.R3(a) complaint filed before the Womens' Commission and that although the Commission held various sittings and considered the allegations, the petitioner could not substantiate the allegations before the Commission. It was alleged that the WP(c).No.11467/08 6 allegations raised in the complaint were unfounded and ill motivated and amounted to a grave misconduct on her part. Though, the allegations were denied in the reply filed by the petitioner, Ext.M(14) charge was issued. 5. The enquiry continued in respect of both the memo of charge and the report of the enquiry is Ext.P31. In so far as the charges levelled in Ext.P12 are concerned, it has been held that these charges are proved and that the petitioner is guilty. In so far as Ext.M(14) charge is concerned, in the concluding portion of the report it is stated that since the allegations in the complaint were not substantiated by the delinquent employee by adducing satisfactory evidence, the Enquiry Officer concluded that the additional charges are proved. Copy of the enquiry report was furnished to the petitioner with an opportunity to make representations against the findings in the enquiry report and Ext.P32 is the representation that was made. Finally the decision of the Committee of the Society to accept the enquiry report and to appoint a Sub Committee WP(c).No.11467/08 7 for further action was conveyed to the petitioner by Ext.P33. The Sub Committee extended her an opportunity of hearing but however that was not availed of by the petitioner. Finally by Ext.P34, the Disciplinary Committee of the Society resolved to impose the punishment of dismissal on the petitioner as provided under Rule 198 (1)(h) of the Co- operative Societies Rules. 6. This writ petition was originally filed challenging the order of suspension and the disciplinary proceedings that were initiated against the petitioner. At the stage of admission this court passed the order dated 8.4.2008, to the effect that notwithstanding section 69 of the Act, the matter needs to be examined. It was directed that though, the proceedings can go on, imposition of penalty following the disciplinary proceedings shall be withheld and shall not be given effect without orders of this court. Subsequently various orders were passed by this Court on 3.9.2008, 10.9.2008, 18.9.2008, 19.3.2009, 24.3.2009 and 31.3.2009. After the writ petition was admitted when WP(c).No.11467/08 8 supplementary charge sheet was issued following Ext.P30, the writ petition was amended and continuance of the enquiry on the basis of Ext.P30 was made provisional and subject to the result of the writ petition. Again when order of punishment was imposed, this court directed that the same shall not be given effect to and writ petition was again amended. It is thus the matter coming up for final hearing. 7. The learned counsel for the petitioner contends that the proceedings initiated by the Bank is vitiated by mala fides. According to him, the disciplinary action was initiated only when the Joint Registrar intervened on her claim for promotion and the allegations of misconduct were raised only to prevent her from enjoying the fruits of such order. Yet another plea raised was that the petitioner was denied legal assistance to defend in the enquiry. It was argued that the charges did not make out a misconduct warranting disciplinary proceedings against her. It is also contended that the findings in the enquiry report are perverse. Finally WP(c).No.11467/08 9 it was argued that the petitioner commenced service on 16.6.1991 and till date there has not been any proceedings against her. It is stated that even if the allegations amounted to misconducts and that she is to be punished, the punishment of dismissal is too disproportionate to the gravity of the misconducts. 8. Respondents on the other hand wants to sustain the action initiated against the petitioner and the contentions raised were on the maintainability of the writ petition. It was argued that in view of the provisions contained in Section 69 of the Co-operative Societies Act, even if the petitioner is aggrieved by the impugned proceedings, her remedy lies before the Arbitration Court in view of Section 69(2)(b of the Act. Counsel also argued that this Court, exercising the powers under Artl.226 of the Constitution, this court should not interfere in a matter of this nature. 9. I shall first deal with the case set up by the counsel for the 3rd respondent bank, regarding the maintainability of the writ petition. In view of the provisions contained in WP(c).No.11467/08 10 Section 69 of the Co-operative Societies Act as amended with effect from 2.1.2003, it must be accepted that section 69 of the Act provides an alternate remedy. Counsel for the Society relied on the judgments in Sherly V. Parappuram Milk Producers Co-operative Society Ltd. (2007(1)KLT 809), Edava Service Co-operative Bank Ltd. V. Co- operative Arbitration Court (2008(3) KLT 784), Raveendran V. State of Kerala (2007(3) KLT, 558) and Rangarajan V. Govt. of Tamilnadu (2003(3) KLT 86) in support of the contention that when an effective alternate remedy is available, this court should not entertain the writ petition. Although the law as laid down in the aforesaid judgments and as canvassed by the counsel for the respondents is unexceptional, fact remains that while admitting the writ petition, in the order dated 8.4.2008 itself this court held that notwithstanding Section 69 the writ petition will be admitted as the matter deserved to be examined on merits. Accordingly, the writ petition was admitted, various orders were passed, parties have filed WP(c).No.11467/08 11 their pleadings and arguments were also heard on the entire controversy. Further for deciding the points raised, it is not necessary to re-appreciate the evidence or adjudicate any disputed question of fact. In such circumstances, in my view, it is unnecessary and unfair to relegate the petitioner to pursue the alternative statutory remedy that is provided in the Co-operative Societies Act. 10. Among the various contentions raised, I shall first examine whether the charges levelled against the petitioner by Ext.P12 and Ext. M(14) disclosed misconducts. In so far as Ext.P12 memo of charges concerned, the allegation against the petitioner is that she had absented from the work place and when questioned, she misbehaved with the President of the Society. Absence from work place during working hours and misbehavior to the employer are certainly misconducts and the employer is entitled to proceed against the delinquent employee. If that be so, the contention that Ext.P12 does not disclose a misconduct is only to be rejected and I do so. WP(c).No.11467/08 12 11. Then what remains is the subject matter of Ext. M (14) charge sheet. As already stated during the course of enquiry petitioner approached the Kerala State Womens Commission and filed Ext.R3(a) complaint making allegations against the President of the Society who is the 4th respondent in this writ petition. It was on that complaint, Ext.P29 report was made by the Women's Commission, which has been extracted in the earlier portion of this judgment. The report shows that the Commission has accepted and acted upon the complaint made and made Ext.P29 report exercising its power under the Act. Ext.P29 report was challenged before this court and in the judgment in Puthuppan V. Girija (2008(4) KLT 189), taking note of the fact that Ext.P29 had already reached the Registrar of the Co-operative Societies this Court held that the Registrar shall examine the matter and take appropriate action. Following the judgment of this court, Registrar of Cooperative Societies heard the parties and a decision is awaited. It was in the meanwhile, that WP(c).No.11467/08 13 Ext.P30 show cause notice was issued and Ext. M(14) charge sheet was issued. The allegation in Ext.P30 and Ext.M(14) is that the petitioner made unsubstantiated and baseless allegations before the Women's Commission which are defamatory to the Bank in general and the President in particular. This allegation was appreciated by the Enquiry Officer and in Ext.P31 report, Enquiry Officer concluded as follows; “Since the allegations raised in Ext.M10 are not substantiated by the delinquent employee by adducing material evidence before me I am inclined to conclude that the allegations are baseless. In the result I hold that the additional charge raised against the delinquent employee as per Ext.M14 stands proved and she is found guilty.” 12. First of all, the extracted portion of Ext.P29 report of the Women's Commission shows that the Commission directed the authorities to redress the grievances of the petitioner accepting the allegation made by her in Ext.R3(a) complaint. Though the said report was challenged before this court, this court did not set aside the said report and on WP(c).No.11467/08 14 the other hand, the Registrar was directed to take further action in the matter. The facts show that the allegations in Ext.R3(a) complaint were accepted by the the Women's Commission. Therefore, the very basis on which Ext.M(14) charge sheet was issued, that the petitioner could not substantiate the allegations in Ext.R3(a) complaint is erroneous. If so, I am not uphold the contention that Ext.M (14) does not disclose any misconduct. There is yet another vitiating circumstance. A reading of the concluding portion of Ext.P31 report shows that the enquiry officer proceeded on the basis that the burden of proof was entirely on the delinquent. On the other hand, it was burden of the Society to prove the charge levelled against the delinquent. For these reasons the finding of the Enquiry Officer in so far as Ext. M(14) memo of charge is concerned, is perverse. 13. True the counsel for the 3rd respondent, referred to the following judgments, in Govt. of India V. George Philip & Anor. (AIR 2007 SC 705), Ramakrishnan V. Union of India (1982 KLT 974), I.S. Meera V. The WP(c).No.11467/08 15 Commandant, Unit & Ors. (2005(3) KLJ 705), A.P. Foods V. Samuel & Ors. (AIR 2006 SC 3622) and State of Meghalaya V. Meeken Sugh N. Marak ( AIR 2008 SC 2862) and contended that in view of the limits of this court's jurisdiction under Art.226, this court shall not reappraise the evidence available before the Enquiry Officer and that interference with the order of punishment is possible only in a case where the same is shocking disproportionate. 14. I am fully conscious of the limits of jurisdiction of this court and the law canvassed by the learned counsel for the 3rd respondent cannot be doubted. However, on a reading of the charges and the enquiry report, it is found that the allegation raised by the petitioner do not disclose a misconduct and for this purpose, it was not necessary for this court to re-appreciate the evidence or decide any disputed questions of fact. In such a situation, the judgments relied on by the respondents will not help to prevent this court from interfering in such a matter. WP(c).No.11467/08 16 15. I am not impressed by the contentions raised by the counsel for the petitioner that the proceedings are vitiated for mala fides. As already noticed, the allegation in Ext.P12 disclose a case of misconduct and if that be so, the unsubstantiated and vague plea of mala fides cannot prevent the Bank form proceeding against the petitioner. In the light of the above, it is held that the allegation in Ext.P30 and Ext.M(14) did not disclose any misconduct to be proceeded against the petitioner. For that reason the findings of the Enquiry Officer, in so far as it concerns Ext.M (14) memo of charge is perverse. Consequently, Ext.P34 order dismissing the petitioner is liable to be set aside and I do so. The 3rd respondent Bank is directed to reconsider the issue and decide on the appropriate punishment to be imposed on the petitioner for the misconduct alleged against her in Ext.P12 memo of charge and found against her in Ext.P31 report. A decision in this regard shall be taken as early as expeditiously as possible at any rate within 4 weeks from the date of receipt of a copy of the judgment. WP(c).No.11467/08 17 In the meanwhile the petitioner will continue under suspension and she will be entitled to subsistence allowance as is being paid now. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.11467/08 18