IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 WP(C).No. 7200 of 2009(T) ------------------------- PETITIONER(S): --------------- C.G.SOMARAJAN, S/O.GOVINDAN.A.K., CHAMAKKALAYIL, THANNITHODU P.O., PATHANAMTHITTA (SALESMAN (FORMERLY) THANNITHODU SERVICE CO-OPERATIVE BANK LTD.NO.Q.364, THANNITHODU P.O., 689 699, PATHANAMTHITTA.) BY ADV. SRI.S.SUBHASH CHAND RESPONDENT(S): --------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), PATHANAMTHITTA. 2. THANNITHODU SERVICE CO-OPERATIVE BANK LTD.NO.Q.364, THANNITHODU P.O.689 699, PATHANAMTHITTA, REPRESENTED BY ITS SECRETARY. 3. BOARD OF DIRECTORS, THANNITHODU SERVICE CO-OPERATIVE BANK LTD.NO.Q.364, THANNITHODU P.O.689 699, PATHANAMTHITTA, REPRESENTED BY ITS PRESIDENT. 4. SUB COMMITTEE (DISCIPLINARY PROCEEDINGS),THANNITHODU SERVICE CO-OPERATIVE BANK LTD.NO.Q.364, THANNITHODU P.O.689 699, PATHANAMTHITTA, REPRESENTED BY ITS CHAIRMAN/CONVENOR. 5. PRESIDENT, THANNITHODU SERVICE CO-OPERATIVE BANK LTD.NO.Q.364, THANNITHODU P.O.689 699, PATHANAMTHITTA. ADV. SRI.VARGHESE PREM FOR R2 TO 5 SRI.N.V.AJAYAKUMAR FOR R2 TO 5 BY GOVT. PLEADER SRI. MOHAMMED HASHIM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC,J. --------------------- W.P.(C).No.7200 OF 2009 ------------------------ Dated this the 29th day of June, 2009. JUDGMENT In this writ petition, validity of Exts.P8 to P10 are under challenge. 2. By Ext.P1 dated 31.8.1991, the petitioner was appointed under the 2nd respondent as a Sales Man. While so, by Exts.P2 and P2(a) order dated 28.6.2007 he was placed under suspension for the misconducts mentioned therein. This was followed by Ext.P1 memo of charges, to which, Ext.P4 explanation was submitted by the petitioner. The explanation offered was unsatisfactory and an Enquiry Officer was appointed by the Bank. It is stated that subsequently, the Enquiry Officer was changed and an Advocate was appointed as the Enquiry Officer. 3. Enquiry was conducted with notice to the parties and on conclusion thereof, Enquiry Officer submitted Ext.P6 report to the effect that, the evidence adduced were WP(c).No.7200/09 2 insufficient to hold the petitioner guilty of the misconducts. On that basis, petitioner was exonerated of the charges and it was recommended that his suspension be revoked. On receipt of the enquiry report, by Ext.P7, the Bank appointed a Sub committee to examine the matter and submit a report to the Board of Directors in order to enable the Board to take a decision in the matter. It is stated that by Ext.P8 proceedings, the Sub Committee appointed as per Ext.P7 disagreed with the Enquiry Officer and resolved that the petitioner be terminated from the service of the Bank. 4. The matter was placed before the Board of Directors and the Board by Ext.P9 accepted the report of the Sub Committee and resolved to terminate the petitioner. Subsequently, the President of the Bank by Ext.P10 informed the petitioner that in view of Ext.P9 resolution of the Board of Directors, he has been terminated from services. It is in these circumstances the writ petition is filed. 5. Two contentions are raised. One is that, before disagreeing with the findings of the Enquiry Officer, neither WP(c).No.7200/09 3 the Sub committee nor the Directors issued any notice to the petitioner, calling upon him to show cause why they shall not disagree with the findings in Ext.P6 report. The other contention raised by the counsel for the petitioner is that the decision to terminate his service was taken by the Board of Directors of the Bank as per Ext.P9 and the authority that could terminate the service of an employee of this stature is the President of the Bank. 6. In so far as the first contention is concerned, a reading of Ext.P6, the report submitted by the Enquiry Officer appointed by the Bank for conducting enquiry into Ext.P3 memo of charges show that, the Enquiry Officer held the evidence in the enquiry insufficient to conclude the guilt of the petitioner and on that basis exonerated him of the charges. The report of the enquiry Officer was considered by the Sub Committee appointed as per Ext.P7 and the Sub Committee straight away, disagreed with the findings of the Enquiry Officer and recommend the petitioner's termination. If a report of the Enquiry Officer is in favour of the delinquent, WP(c).No.7200/09 4 although it is perfectly within the power of the disciplinary authority to disagree with the findings, the disagreement can only be after putting the delinquent on notice and after disclosing to him the tentative grounds on which it is proposed to disagree with the findings of the enquiry officer. The delinquent should also be given an opportunity to make his representations in the matter. Ext.P8 shows that no such notice was given and that an opportunity was not given either by the Sub Committee or by the Board of Directors when it resolved to terminate the petitioner as per Ext.P9. Therefore, the said decision to disagree with the findings of the enquiry officer in favour of the delinquent is violative of the principles of natural justice and for that reason the said action of the Sub committee of the Board cannot be sustained. The other plea that is raised by the counsel for the petitioner is regarding the incompetency of the Board of Directors to have passed Ext.P9 proceedings. The disciplinary authority, who could impose the punishment is the one mentioned in Rule 198(3) of the Kerala Co-operative Societies Rules. Petitioner is WP(c).No.7200/09 5 a Salesman in the Bank. The punishment of termination as provided under Rule 198(1)(h) could be imposed only by the President of the Bank. On the other hand in this case, such punishment has been imposed by the Board of Directors, which has been conferred with the appellate jurisdiction as per Rule 194(4) of the Rules. The resultant position is that the petitioner has lost the right of appeal. In my view, this could not have been done, particularly in the light of the judgment of this court in President, Pudupariyaram Service Co- operative Society V. Rugmini Amma & Ors.(1996(1)KLT 100). For the aforesaid reason Exts.P9 and P10 will stand set aside and the matter stands remitted back to the disciplinary authority for further action in accordance with law. (ANTONY DOMINIC) JUDGE vi/