IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 WP(C).No. 35566 of 2007(H) -------------------------------------- PETITIONER: ------------------- N.M.BHASKARAN, JOINT SECRETARY, MEPPAYUR SERVICE CO-OP.BANK LTD.NO.D 2019, MEPPAYUR P.O., KOZHIKODE, PIN 673 524. BY ADV. SRI.P.N.MOHANAN RESPONDENTS: ----------------------- 1. JOINT REGISTRAR OF CO-OP.SOCIETIES (GENERAL), KOZHIKODE. 2. MEPPAYUR SERVICE CO-OP. BANK LTD. NO.D.2019, MEPPAYUR P.O., KOZHIKODE REP. BY ITS PRESIDENT. ADDL. 3. ABDUL RAHIMAN.T.R., S/O.KOYATTY, GAZAL, MEPPAYUR POST, KOZHIKODE. (ADDL.3RD RESPONDENT IS IMPLEADED AS PER ORDER DATED 9.1.2008 IN I.A.NO.202/2008) R1 BY SPECIAL GOVT.PLEADER SMT.A.G.ANEETHA R2 BY ADV. SRI.P.P.JACOB R3 BY ADV.SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.35566 OF 2007 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PETITION FILED BY THE PETITIONER DATED 20.8.2007 EXT.P2 TRUE COPY OF THE RESOLUTION OF THE MANAGING COMMITTEE DATED 12.1.2007 EXT.P3 TRUE COPY OF THE COMMUNICATION DATED NIL EXT.P4 TRUE COPY OF THE ORDER OF THE JOINT REGISTRAR DATED 16.11.2007 EXT.P5 TRUE COPY OF THE ORDER DATED 27.11.2007 OF THE MANAGING COMMITTEE EXT.P6 TRUE COPY OF THE ENQUIRY REPORT. EXT.P7 TRUE COPY OF THE COMMON JUDGMENT DATED 31.12.2005 EXT.P8 TRUE COPY OF THE JUDGMENT DATED 20.5.2005 OF THE SESSIONS COURT. EXT.P9 TRUE COPY OF THE SENIORITY LIST. RESPONDENTS' EXHIBITS: EXT.R2(A) TRUE PHOTOCOPY OF THE RELEVANT PAGES 1 TO 8 OF ENQUIRY REPORT. EXT.R2(B) TRUE PHOTOCOPY OF THE LETTER ISSUED BY SECOND RESPONDENT TO THE PETITIONER DATED 19.2.2001. EXT.R3(A) TRUE PHOTOCOPY OF THE AWARD DATED 18.8.2000 IN I.D.NO.14/1999 EXT.R3(B) TRUE PHOTOCOPY OF THE ORDER BEARING NO.CRP.9296/84/K.DIS. DATED 30.10.1984 EXT.R3(C) TRUE PHOTOCOPY OF THE SENIORITY LIST AS ON 09.10.2004 EXT.R3(D) TRUE PHOTOCOPY OF THE RESOLUTION BEARING NO.18 DATED 12.1.2007. / TRUE COPY / THOTTATHIL B. RADHAKRISHNAN, J. ------------------------------------------ W.P.(C) No.35566 of 2007 ------------------------------------------ Dated, this the 30th day of May, 2008 JUDGMENT The petitioner while employed in the services of the second respondent Co-operative Bank faced disciplinary proceedings resulting in his dismissal. That led to I.D.No.14 of 1999 in which Ext.R3(a) award was passed on 18.8.2000 recording certain settlement between the parties, wherein among other things, the petitioner undertook to remit to the Bank the amounts due from him in the enquiry under Section 65 of the Kerala Co-operative Societies Act at or before his reinstatement. It was agreed that the petitioner would be reinstated as a junior clerk with certain protective orders regarding pay scale. After Ext.R3(a), the petitioner joined as a junior clerk enjoying the benefit of Ext.R3(a) settlement. While continuing in service, as per Ext.P4, he got back all his service status including the seniority after he was acquitted by the criminal court in about seven cases charge sheeted on the complaint of the Bank. As a consequence of this, the Bank decided to create a post of Joint Secretary between the categories of Secretary and Assistant Secretary which is indisputably away from the prescriptions of the statutory provisions. Be that as it may. The stand taken by the petitioner was that having been acquitted by the criminal court on same set of charges on which he was removed from service on account of indiscipline, he was entitled to restoration of all benefits in service. The Registrar exercising his powers under Section 176 of the Kerala Co-operative Societies Act interfered with the decision of the Bank to perch the petitioner as Joint Secretary. This is under challenge by the W.P.(C) No.35566 of 2007 2 petitioner. 2. From what is sated above it can be seen that whatever benefits the petitioner was seeking and the society was proceeding to extend were dependent on the basic and fundamental fact that the petitioner was reinstated in service after he was once dismissed on account of alleged indiscipline. It is to be noted that while the petitioner was reinstated as junior clerk following Ext.R3(a) award of the Labour Court, the impleaded additional third respondent though entered service after the initial date of entry of the petitioner had moved ahead and was a senior clerk. Even if he could not be immediately aspiring to be an Assistant Secretary or the Secretary, he is entitled to object to the onward march of the petitioner as sought for by him and thereby get into that post created to accommodate him higher above in the ladder. 3. Ext.R3(a) is the decision of the Labour Court. In a statutory proceeding the industrial dispute was decided on the basis of a settlement between the parties. But for that award the petitioner would not have re- entered the service. He enjoyed the benefit of Ext.R3(a) award and re-entered the service as junior clerk. He cannot, therefore, turn round to impeach the disciplinary proceedings even if the finding in the enquiry report contains the consequence that he should not have been found guilty. It was a joint application filed by the petitioner to accept the settlement between the parties, i.e. the management, the union and himself way back in 2000, and too late for the aid of the petitioner to reopen it or that the management to come to his aid much to the opposition of the other employee, the third respondent in particular. 4. For the aforesaid reasons I find no jurisdictional error or legal infirmity in the impugned proceedings. The writ petition fails and the same is W.P.(C) No.35566 of 2007 3 accordingly dismissed. It is further clarified that the petitioner having discharged whatever duties and responsibilities that were assigned to him in the post as Joint Secretary which post could not have been there at all, the amount, if any received by the petitioner as salary for the said work done shall not be recovered or counted for fixation of further benefits. No costs. THOTTATHIL B.RADHAKRISHNAN JUDGE vns