IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 OP.No. 4678 of 2001(F) -------------------------------- PETITIONER: ------------------- 1. K.V. BHASKARAN, KUNNUMMEL VALAPPIL, PAINKANNUR.P.O., KUTTIPPURAM VIA., PIN: 679 590. (DIED). *ADDL. PETITIONERS 2 TO 6 IMPLEADED: 2. SAROJINI, W/O. LATE K.V. BHASKARAN, KUNNUMMAL VALAPPIL HOUSE, PAINKANNUR, KUTTIPPURAM, MALAPPURAM DIST. 3. KUSUMALATHA, D/O. LATE K.V. BHASKARAN, KUNNUMMAL VALAPPIL HOUSE, PAINKANNUR, KUTTIPPURAM, MALAPPURAM DIST. 4. GIRIJA, D/O. LATE K.V. BHASKARAN, KUNNUMMAL VALAPPIL HOUSE, PAINKANNUR, KUTTIPPURAM, MALAPPURAM DIST. 5. SASIKALA, D/O. LATE K.V. BHASKARAN, KUNNUMMAL VALAPPIL HOUSE, PAINKANNUR, KUTTIPPURAM, MALAPPURAM DIST. O.P. NO.4678/2001-F: 6. BABURAJ.K.V., S/O. LATE K.V. BHASKARAN, KUNNUMMAL VALAPPIL HOUSE, PAINKANNUR, KUTTIPPURAM, MALAPPURAM DIST. *ADDL. PETITIONERS 2 TO 6 ARE IMPLEADED AS PER ORDER DATED 05/01/2010 IN I.A. NO. 19/2010. BY ADVS. MR.PIRAPPANCODE V.SREEDHARAN NAIR, MR.S.P.ARAVINDAKSHAN PILLAY, MR.PIRAPPANCODE V.S.SUDHIR. RESPONDENTS: ------------------------ 1. KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. 2. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, TIRUR, MALAPPURAM DIST. 3. KUTTIPPURAM SERVICE CO-OPERATIVE BANK LTD. NO.F.1253, VALANCHERI, REPRESENTED BY ITS SECRETARY. R1 & R2 BY GOVT. PLEADER MR. DILEEP MOHAN, R3 BY ADVS. MR.P.K.SURESH KUMAR, SMT.M.R.SREELATHA. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO.4678/2001-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE R.2. EXT.P.2: COPY OF THE ADDITIONAL OBJECTION FILED BY THE PETITIONER. EXT.P.3: COPY OF THE AWARD ISSUED BY THE R.2. EXT.P.4: COPY OF THE JUDGMENT DTD. 21/09/1995 OF THE R.1. IN A.P. NO.129/93. EXT.P.5: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. 17408/95 DTD. 20/11/97. EXT.P.6: COPY OF THE PETITION DTD. 16/02/1998 SUBMITTED BY THE PETITIONER BEFORE THE R.1. EXT.P.6.A: COPY OF THE RECEIPT DTD. 10/07/90 ISSUED BY THE BANK TO THE PETITIONER. EXT.P.6.B: COPY OF THE LETTER SENT BY THE PETITIONER BEFORE THE R.1. EXT.P.6.C: COPY OF THE EXT P.6.(A). EXT.P.6.D: COPY OF THE EXT.P.6.(B). EXT.P.7: COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE R.1. EXT.P.8: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN A.P. 129/93 DTD. 14/07/2000. EXT.P.9: COPY OF THE NOTICE DTD. 31/01/2001 ISSUED BY THE R.3. TO THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ------------------------- O.P No.4678 of 2001 -------------------------- Dated this the 5th January, 2010 J U D G M E N T The petitioner was an Appraiser in the service of the 3rd respondent Co-operative Bank. He was dismissed from service pursuant to disciplinary proceedings initiated by the Bank against him. Petitioner raised an industrial dispute which was adjudicated by the appropriate Labour Court and an award was passed upholding the dismissal of the petitioner. W.P.(C) No.13350 of 2003 filed by the petitioner against that award is pending consideration of this Court. 2. Earlier while the petitioner was working in the Bank he had availed of a housing loan for Rs.50,000/- on 26.9.1987. Till the suspension of the petitioner, pursuant to the disciplinary proceedings, with effect from 27.6.1990, instalments of repayment of the loan was being deducted from the petitioner's salary every month. After the suspension of the petitioner, the Bank filed arbitration proceedings for recovery of the balance amount due from the petitioner in the loan account with interest under Section 69 of the Kerala Co-operative O.P No.4678 of 2001 2 Societies Act, 1969. In the objections filed before the Arbitrator, the petitioner took the contention that he had paid an amount of Rs.32,000/- on 10.7.1990 in the loan account, which was kept in suspense account and therefore that amount has to be deducted from the amounts due from him. But overruling the objections of the petitioner, by Ext.P3 the Arbitrator passed an award for realisation from the petitioner and the sureties a sum of Rs.51,705.30 with interest at the rate of 7% per annum on Rs.41,184/- till the date of realisation and costs to the Bank. Petitioner filed A.P. No.129/93 before the Kerala Co- operative Tribunal. The Tribunal by Ext.P4 judgment allowed the claim of the petitioner for adjustment of the amount of Rs.32,000/- paid by the petitioner and subject to the same held that the Bank is entitled for a decree for Rs.50,000/- with interest at the rate of 7% per annum from the date of debt till 10.7.1990. The Bank filed O.P. No.17408/95 before this Court challenging Ext.P4 judgment regarding adjustment of the amount of Rs.32,000/-. In that original petition, this Court passed Ext.P5 judgment setting aside Ext.P4 judgment of the O.P No.4678 of 2001 3 Tribunal, permitting the Bank to produce two documents which were produced as Exts. P3 and P4 in the Original Petition and directing the Tribunal to reconsider the matter after hearing the petitioner and the Bank. Before the Tribunal, the Bank produced Exts.P6 (a) and P6 (b) documents (which were Exts.P3 and P4 in O.P. No.17408/1995) claiming that the amount of Rs.32,000/- paid by the petitioner was towards repayment of amounts misappropriated by the petitioner in a gold loan account in respect of which only the disciplinary proceedings were initiated against the petitioner and was not paid towards the housing loan account. By Ext.P6 (b) they claimed that petitioner himself had admitted that the amount of Rs.32,000/- is being paid towards repayment of the amount due from the petitioner in respect of the said gold loan account. Accepting that contention, the Tribunal, by Ext.P8 order held that the petitioner is liable to pay the entire amount decreed as per Ext.P3 order of the Arbitrator and he is not entitled to adjustment of the amount of Rs.32,000/- since there is no material on record to show that the said amount of Rs.32,000/- was paid towards the O.P No.4678 of 2001 4 housing loan account. Petitioner is challenging Ext.P8 order in this Original Petition. 3. The contention of the petitioner is that the reliance placed by the Tribunal on Exts.P6 (a) and P6 (b) documents are illegal in so far as the same were only photocopies which had not been proved appropriately by examining a person conversant with the said documents. Petitioner's contention is that the petitioner had actually paid the amount of Rs.32,000/- towards the housing loan account which was kept in a suspense account. According to the petitioner, the Secretary and President of the Bank forcibly made the petitioner sign on bank papers which were used for forging Ext.P6 (b) document. He also points out that in Ext.P6 (a), there are interpolations which would go to show that originally they had kept the amount in a suspense account and later on the number of the gold loan account was fraudulently incorporated in the same. According to the petitioner, in respect of the said criminal act, the Police had filed a charge sheet before the Judicial First Class Magistrate's Court, Thirur as C.C No.475/90 which was withdrawn by the prosecution after the trial of O.P No.4678 of 2001 5 the case was over, challenging which, the petitioner had filed Criminal R.P. No.612/94 which was pending at the time filing of this original petition. But the petitioner now admits that Criminal R.P was later dismissed. According to the petitioner, the fact that the handwriting in Ext.P6 (b) is not that of the petitioner would go to show that the same is a concocted document. 4. A counter affidavit has been filed by the Bank disputing the contentions of the petitioner. According to them, they had sufficiently proved that the payment of Rs.32,000/- was not towards the housing loan account but was in repayment of the amounts misappropriated by the petitioner in the gold loan account in respect of which disciplinary proceedings were initiated against the petitioner which culminated in his dismissal from service which was upheld by the Labour Court. It is submitted by the learned counsel for the Bank that copies of Exts.P6 (a) and P6 (b) were produced before this Court in O.P. No.17408/95 as Exts.P3 and P4 and by Ext.P5 judgment, this Court permitted the bank to produce the same before the Tribunal and the Tribunal was directed to consider the O.P No.4678 of 2001 6 matter afresh after hearing the petitioner and the Bank. Pursuant that to, the Bank had produced those documents before the Tribunal and considering those documents, the Tribunal accepted the case of the bank that such payment was not towards repayment of the housing loan account. 5. According to the counsel for the Bank, in so far as the petitioner has not chosen to challenge those documents before the Tribunal, he cannot now turn around and contend that those documents were improperly admitted in evidence. Learned counsel for the Bank also points out that as is clear from Ext.P8 judgment of the Tribunal, the petitioner had never disputed those documents and never contended that without production of the originals of those documents, the same cannot be relied upon for deciding the issues involved in the appeal. According to him, all documents relevant were produced before the Arbitrator as well. 6. I have considered the rival contentions in detail. 7. At the outset, I must remind myself of the scope of my jurisdiction under Article 226 of the Constitution of India in considering findings of facts which have been O.P No.4678 of 2001 7 ascertained by two adjudicating authorities which is very limited to the extent of considering whether the decision making process was vitiated in any manner. I am not expected to re-appreciate the evidence and come to my own conclusion on the basis of that evidence unless the findings are totally perverse. Here the question before the Arbitrator and the Tribunal, was as to whether the payment of amount of Rs.32,000/- is the housing loan account of the petitioner or towards payment of the amounts misappropriated by the petitioner in the gold loan account. Two authorities had concurrently come to the conclusion that the petitioner had not produced any material to show that, that payment was towards repayment of the housing loan account. The Tribunal accepted the documents produced by the Bank to show that such payment was only towards repayment of the amounts misappropriated by the petitioner in respect of which disciplinary proceedings were initiated against him. 8. I am of opinion that if the petitioner had a case that the documents relied upon by the Tribunal was improperly admitted in evidence, it was for the petitioner O.P No.4678 of 2001 8 to raise such a contention before the Tribunal and get a decision in respect thereof. Nothing has been brought to my notice to the effect that the petitioner had objected to the Tribunal considering those documents on the ground that the same had not been properly admitted in evidence. 9. On the other hand, the criminal case filed on the very same contentions did not end in a decision in favour of the petitioner. By Ext.P5 judgment, this Court had permitted the bank to produce those documents before the Tribunal and the Tribunal was directed to consider the same. There is no law that in no circumstances photocopies of documents are admissible in evidence. Any document can be admitted in evidence provided the opposite side does not object to the same being accepted in evidence. Here there is nothing on record to show that the petitioner has not object to the documents. Therefore, after suffering Ext.P8 judgment , the petitioner cannot, thereafter, turn around and contend that since the admission of the documents in evidence is without complying with the procedure prescribed under law, the same cannot be relied upon for the purpose of rejecting the O.P No.4678 of 2001 9 contention of the petitioner. Admittedly the signature in Ext.P6 issued is that of the petitioner. Even if the handwriting therein is not that of the petitioner as contended by him that does not automatically make the document a concocted document. On a perusal of Ext.P6 (b), I am unable to find that the same has been prepared in a blank paper signed by the petitioner earlier. It appears to be a normal document signed after preparing the document. On such evidence I am unable to conclude that the decision of the Tribunal is in any way perverse in respect thereof. Therefore, I do not find any merit in the original petition and accordingly the same is dismissed. S.SIRI JAGAN, JUDGE ma O.P No.4678 of 2001 10 O.P No.4678 of 2001 11