IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 WA.No. 1383 of 2008 ----------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.6035/2008 DATED 07/04/2008 .................... APPELLANT/ 2ND RESPONDENT: ----------------------------------------------- THE DISTRICT CO-OPERATIVE BANK, KOTTAYAM, REPRESENTED BY ITS GENERAL MANAGER. BY ADV. SRI.T.A.SHAJI. RESPONDENTS/ PETITIONER & 1ST RESPONDENT: -------------------------------------------------------------------------- 1. T.R.RADHAMANI, EXECUTIVE OFFICER (RETD.), DISTRICT CO-OPERATIVE BANK, KOTTAYAM RESIDING AT EZHAVAR VAYALIL, CHENTHIMATTOM, PALAI PO., KOTTAYAM. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM. BY THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & P.N.Ravindran, JJ. ===================== W.A.No.1383 of 2008 ===================== Dated this the 3rd day of July, 2008. JUDGMENT Ravindran,J. The second respondent in W.P.(C)No.6035 of 2008 is the appellant. By judgment delivered on 7.4.2008, the learned Single Judge directed the appellant to release the retirement benefits admissible to the writ petitioner within a period of 45 days, without prejudice to the appellant's right to initiate appropriate action for recovery of the amount if any due from the writ petitioner in accordance with law. The brief facts of the case are as follows: 2. The writ petitioner retired from the service of the appellant - bank on 31.8.2006. While she was working as Accountant in the Erattupetta Branch of the appellant bank, Sri.O.Vijayakumaran Nair, a Peon in the service of the bank tampered with a cheque drawn in favour of the appellant - bank by the Meenachil East Urban Co-operative Bank for the sum of WA 1383/06 -: 2 :- Rs.1 lakh and withdrew the said sum. The culprit was caught red-handed and the sum of Rs.89,000/- in cash was recovered from him. In connection with the said incident, the writ petitioner who was then an Accountant and Sri.K.Viswanathan Nair, who was then working as Cashier, were placed under suspension. In the domestic enquiry held by the appellant bank they were exonerated of all the charges. It was found that Sri.O.Vijayakumaran Nair, the Peon, alone was the person responsible for the wrongful withdrawal of the money. The period during which the writ petitioner and the cashier were placed under suspension was regularised as duty and they were paid salary and allowances for the said period. The writ petitioner accordingly rejoined duty on 5.4.1988. On 8.8.1988, the writ petitioner was promoted as Branch Manager. She was thereafter promoted as Executive Officer and she retired from service on 31.8.2006 while working as Executive Officer. 3. The Meenachil East Urban Co-operative Bank had in the meanwhile filed Arbitration Case No.23 of 1982 against the appellant - bank for the realisation of the amount covered by the cheque with interest at 14.5% per annum from 6.3.1981. The WA 1383/06 -: 3 :- Arbitration Case was initially dismissed. On appeal filed by the Meenachil East Urban Co-operative Bank, the award passed by the Arbitrator was set aside and the case was remanded to the Arbitrator. The case was thereafter renumbered as A.R.C.No.6 of 1986. The Arbitrator passed an award against the appellant bank on 8.10.1999. On appeal by the appellant bank, the award was set aside on 29.6.2002 and the case was remanded to the Arbitrator for fresh disposal. The Arbitration Case is said to be still pending. The pleadings disclose that the sum of Rs.89,000/- which was recovered from the Peon in 1981 is still lying in deposit in the sub treasury. 4. After retirement, when terminal benefits were not paid to her, the writ petitioner filed W.P.(C) No.10971 of 2007 in this Court. By an interim order passed in the said Writ Petition, a learned Single Judge of this Court directed the appellant to disburse the admitted amount due to the writ petitioner within one month. Accordingly, the sum of Rs.1,84,732/- was disbursed to the writ petitioner withholding the sum of Rs.4,82,412/-, said to be the amount involved in the Arbitration Case instituted by the Meenachil East Urban Co-operative Bank. The writ petitioner WA 1383/06 -: 4 :- thereupon filed Arbitration Case No.8 of 2007 before the Joint Registrar of Co-operative Societies, Kottayam under Section 69 of the Kerala Co-operative Societies Act, 1969 seeking the disbursement of the sum of Rs.4,82,412/- with interest at 18% interest per annum from 31.8.2006. By Ext.P7 letter dated 11.12.2007, the Joint Registrar informed the writ petitioner that in view of the Arbitration Case instituted by the Meenachil East Urban Co-operative Bank, her claim can be considered only after the case is disposed of. The writ petitioner thereupon filed W.P. (C) No.6035 of 2008 seeking the following reliefs: "i) A writ in the nature of mandamus, directing the 1st respondent to initiate appropriate action against the 2nd respondent so as to get the petitioner's legally admissible monetary benefits within a time frame; in the alternative issue, ii) a writ in the nature of mandamus directing the 1st respondent to initiate necessary action on Exhibit P6 expeditiously within the time frame to be fixed by this Honourable Court, iii) Declare that the 2nd respondent is not legally entitled to claim/withhold any amount as narrated in Exhibit P5," WA 1383/06 -: 5 :- The Writ Petition came up for final hearing before the learned Single Judge on 7.4.2008. By judgment delivered on 7.4.2008, the learned Single Judge allowed the Writ Petition and directed the appellant bank to release all the retirement benefits legally admissible, within a period of 45 days. The appellant bank has in this Writ Appeal canvassed the correctness of the said direction. 5. We have heard Sri.T.A.Shaji, the learned counsel appearing for the appellant bank. The learned counsel contended that as the arbitration proceedings initiated by the Meenachil East Urban Co-operative Bank against the appellant bank is still pending, the learned single Judge erred in directing payment of the retirement benefits in full. It was contended that if payment is made to the writ petitioner, before the Arbitration Case is finally decided, the interests of the bank would be in jeopardy. It was further submitted that as the balance terminal benefits payable to the writ petitioner is kept in a suspense account there was no justification to direct payment of the terminal benefits. 6. We have considered the submissions made at the Bar by the learned counsel for the appellant. The pleadings disclose that Sri.O.Vijayakumaran Nair, the former Peon of the bank who had WA 1383/06 -: 6 :- misappropriated the money covered by the cheque issued by the Meenachil East Urban Co-operative Bank was apprehended soon after he committed the crime and the sum of Rs.89,000/- was recovered from him. A jeep purchased by him by using a portion of the swindled funds was also seized from him. The money is admittedly lying in deposit in the treasury since 1981. In the disciplinary enquiry initiated by the bank, the writ petitioner was exonerated of all the charges and the period during which she was placed under suspension was regularised as duty for all purposes. The delinquent Peon was dismissed from service. The petitioner cannot therefore be held liable for the claims of the Meenachil East Urban Co-operative Bank in relation to the amount covered by the cheque even if the Arbitration Case is decided against the appellant. The appellant bank which had accepted the findings in the domestic enquiry and exonerated the appellant of the charges cannot hold the appellant responsible for payment of the amount that the appellant would have to pay in the event of the Arbitration Case being decided against it. Further, a substantial portion of the amount is lying deposit in the treasury. The learned Single Judge was therefore justified in WA 1383/06 -: 7 :- directing payment of the retirement benefits to the writ petitioner within 45 days. We accordingly hold that there is no merit in the Writ Appeal and that it is liable to be dismissed. 7. Lastly, the learned counsel for the bank submitted that as the period fixed by the learned Single Judge has expired, the bank may be granted some more time to disburse the retirement benefits. The judgment of the learned Single Judge was delivered on 7.4.2008. The period of 45 days expired on 22.5.2008. The Writ Appeal was presented on 21.5.2008, the day before the said period expired. In the aforesaid circumstances, while dismissing the Writ Appeal, we grant the appellant bank time upto 14.8.2008 to comply with the directions issued by the learned Single Judge. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 18/7