IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 WP(C).No. 15370 of 2010(U) ---------------------------------------- PETITIONER(S): ------------------- SUNNY CHERIAN, KUNNAKATTU HOUSE, MELAMPARA PO, KOTTAYAM DISTRICT. BY ADV. SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU RESPONDENT(S): ------------------------ 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,KOTTAYAM. 2. THE TRAVANCORE RUBBER MARKETING AND PROCESSING CO-OPERATIVE SOCIETY LTD.NO.K.876,PALA, REPRESENTED BY ITS SECRETARY. 3. THE MANAGING COMMITTEE OF THE TRAVANCORE RUBBER MARKETING AND PROCESSING CO-OPERATIVE SOCIETY LTD.MNO.K-876,PALA, REP. BY ITS PRESIDENT SRI.SUNNY MATHEW, VADAKKE MULANGANAL,KIZHAKAMATTOM PO, MELUKAVUMATTOM. 4. THE KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., KOTTAYAM. R1 BY SR. GOVT. PLEADER SRI. K.S.MUHAMED HASHIM R2 &R3 BY ADV.SRI.P.C.HARIDAS R4 BY ADV. SRI.T.A.SHAJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.15370/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE CERTIFICATE DTD. 22.5.2006 ISSUED BY THE PRESIDENT OF THE 2ND RESPONDENT SOCIETY. P2:- COPY OF THE APPOINTMENT LETTER DTD. 12.4.2010. P3:- COPY OF THE SAID LETTER DTD. 19.4.2010 SUBMITTED BY THE PETITIONER. P4:- COPY OF THE DECISION NO.2. DTD. 27.4.2010 OF THE 3RD RESPONDENT. P5:- COPY OF THE DECISION DTD. 30.4.2010 OF THE MANAGING COMMITTEE OF THE 4TH RESPONDENT BANK. P6:- COPY OF THE ADVERTISEMENT THAT APPEARD IN MALAYALA MANORAMA NEWSPAPER DTD. 4.5.2010. P7:- COPY OF THE FORM OF UNDERTAKING DTD. NIL TO BE FILED BY A CANDIDATE. P8:- COPY OF THE SAID PETITION DTD. 10.5.2010 SUBMITTED TO THE IST RESPONDENT. P9:- COPY OF THE ORDER NO.H.M. 4083/10 DTD. 20.5.2010 OF THE IST RESPONDENT. RESPONDENT'S EXHIBITS R3(A):- COPY OF THE COMPLAINT SUBMITTED BY SIMON. R3(B):- COPY OF THE COMPLAINT SUBMITTED BY JUSTIN. R3(C):- COPY OF THE SUSPENSION ORDER ISSUED TO THE PETITIONER. R3(D):- COPY OF THE REPLY GIVEN TO THE IST RESPONDENT BY THE 2ND RESPONDENT. TRUE COPY P.A. TO JUDGE tss K.SURENDRA MOHAN, J. -------------------------------- W.P.(C).No.15370 of 2010 ---------------------------------------- Dated this the 22nd day of June, 2010 JUDGMENT The petitioner who is the Secretary of the 2nd respondent Society has filed this writ petition complaining of inaction on the part of respondent 2 and 3, on his request seeking to relieve him of his services for the purpose of taking up employment with the Kottayam District Co- operative Bank Ltd. The petitioner was appointed as the Secretary of the 2nd respondent Society on 15.11.1994. The Society is a marketing Society and also a member of the Kottayam District Co-operative Bank. According to the petitioner, he has a total service of more than 15 years as the Secretary of the 2nd respondent-Society. 2. While so the Public Service Commission invited applications from eligible candidates for appointment to the post of Clerk/Cashier under the 4th respondent bank. As per Rule 187 of the Kerala Co-operative societies Rules, 1969 (the 'Rules' for short), 50% of the vacancies in the W.P.(C).No.15370 of 2010 2 Central and Apex Societies are reserved for the employees of the member Societies. The petitioner applied for appointment to the post in the quota reserved for employees of the member Societies. A written test and interview were conducted and the petitioner was selected for appointment. It is to be noted that the petitioner had submitted his application for the post supported by a No Objection Certificate issued by the President of the 2nd respondent-Society, which is Ext.P1. 3. As per letter dated 12.4.2010 the petitioner was directed by the General Manager of the 4th respondent to report for duty within 15 days of receipt of the appointment letter, Ext.P2. The petitioner immediately submitted a request to the 2nd respondent-Society for the issue of a relieving order, non-liability certificate, conduct certificate etc., so as to join the services of the 4th respondent bank. However, he was not relieved. Instead, respondents 2 and 3 resolved to request the 4th respondent for an extention of the time granted to the petitioner to join duty, for the reason that the services of the petitioner were necessary and could W.P.(C).No.15370 of 2010 3 not be spared for some more time. Accordingly, the relieving time of petitioner was extended up to 31.5.2010. Thereafter, the petitioner made several representations to the 2nd and 3rd respondents for relieving him from service. But he was not relieved of his duties. The 2nd respondent society also initiated action for the selection and appointment of a suitable candidate as its Secretary by publishing a notification in the newspaper for the purpose. According to the petitioner, he had been working without salary for a period of 8 months prior to the date of filing of this writ petition. 4. According to the petitioner, he is ready to furnish an undertaking or an indemnity bond in favour of the Society and to indemnify the 2nd respondent against any audit objection fixing liability on the Secretary in the departmental audit to be conducted. If the petitioner is not permitted to join duty within the time fixed by the 4th respondent, the petitioner submits that he would lose his appointment. Therefore, he has approached this Court by filing the above writ petition. W.P.(C).No.15370 of 2010 4 5. This petition was admitted on 19.5.2010 and notice was served on respondents 2 and 3 through special messenger. Thereafter, as per interim order dated 27.5.2010 “the 4th respondent was directed to extend the joining time that is granted to the petitioner by one month.” At present the joining time stands extended up to 30.6.2010. 6. A counter affidavit has been filed on behalf of respondents 2 and 3 contesting the submissions of the petitioner. According to the counter affidavit the petitioner has filed this writ petition without any bonafides with the intention of covering up his malpractices/misappropriation of funds/forgery/fraud committed by him during the course of his employment as the Secretary of the 2nd respondent. It is further averred that though the Managing Committee has granted permission to relieve the petitioner from service, the committee has received complaints against the petitioner from its members. Particular reference is made to Ext.R3A complaint dated 27.4.2010 made by one P.J.Simon Managing Committee member alleging that he W.P.(C).No.15370 of 2010 5 had supplied a large quantity of rubber to the Society during the period from 27.6.2009 to 22.3.2010, but that he was not given the value thereof by the petitioner. Subsequently, he was paid an amount of Rs.3,32,500/-only after the intervention of the Board of Directors, on 27.4.2010. The balance amount of Rs.1,54,246/-is still remaining unpaid. It is also alleged that, his enquiry with the trader to whom the petitioner is said to have given the rubber sheets revealed that 4 ½ tons of sheets belonging to Society was still in his possession. Therefore, the member suspected that the petitioner has committed some foul play in the transaction. According to the complaint, even when rubber sheets are shown in the accounts of the society as having been sold, in fact they were not sold but, only entrusted with the trader waiting for being sold at a higher price. 7. According to the counter affidavit, in view of the allegations against the petitioner, the members of the Managing Committee decided to conduct an enquiry into the allegations and deputed Sri.Justin Thomas one of the W.P.(C).No.15370 of 2010 6 members to conduct an enquiry and to submit a report on 19.52010. On 19.5.2010 though Sri. Justin Thomas perused part of the records, he could not complete the inspection. Therefore, he continued the inspection on 21.5.2010 and examined the records in the presence of the petitioner. He also took custody of some of the records inspected by him and they were kept in the locker of the Society. Since the inspection could not be completed on that day also, it was decided to continue the enquiry on the next day. The locker and shutter of the office room were locked and the keys were taken by Sri.Justin Thomas. However, on the next day when Sri. Justin Thomas came to the office the petitioner did not turn up. Sri. Justin Thomas also was not able to open the office with the key that was available with him. On enquiry, he came to know that the petitioner had locked the office and its shutter, using the master key that was available with the landlord which he had procured. Consequently, the office could not be opened upto 22.5.2010. On the said date, it was only on the intervention of the Police that the office could be opened. W.P.(C).No.15370 of 2010 7 8. In view of the above, it is submitted that disciplinary proceedings have been initiated against the petitioner and he has been placed under suspension pending enquiry as evidenced by Ext.R3C. The Managing Committee has appointed Sri.justin Thomas as the Honorary Secretary. In view of the above developments it is submitted that it is not possible to relieve the petitioner until the disciplinary proceedings are completed. Therefore, it is prayed that this writ petition may be dismissed. 9. I have heard Shri.Shaji Thomas, learned counsel for the petitioner, Shri.P.C.Haridas, learned counsel for respondents 2 and 3, Shri.T.A Shaji, learned counsel for the 4th respondent as well as the learned Senior Government Pleader who appears for the 1st respondent. I have heard the contentions of the rival parties in detail. I have gone through the records of the case and have given anxious consideration to the issues raised. 10. It is not disputed by the parties that the petitioner had been working with the 2nd respondent society from 15.11.1994 onwards and that he had maintained an W.P.(C).No.15370 of 2010 8 unblemished record of service. It is also not disputed that the Public Service Commission had invited applications for appointment to the post of Clerk/Cashier in the 4th respondent bank and that the 2nd respondent had permitted the petitioner to apply for the said post in the quota reserved for employees of the member Societies affiliated to the 4th respondent. Thereafter, the petitioner was ranked by the Public Service Commission and was appointed. Therefore, he requested for being relieved of his duties for the purpose of joining the service of the 4th respondent. The petitioner has submitted Ext.P3 letter tendering his resignation for the purpose of joining the service of the 4th respondent. He also sought for the issue of an order relieving him from the service of the 2nd respondent. As per Ext.P4 decision of the 3rd respondent, it was decided to retain the services of the petitioner for some more time for the reason that his services were necessary in the absence of any other employee to relieve him. Therefore, a decision to request for extention of the joining time of the petitioner was taken. Later on, as per Ext.P6 advertisement, published W.P.(C).No.15370 of 2010 9 in the Malayala Manorama daily dated 4.5.2010 applications were also invited by the 2nd respondent for appointment to the post of Secretary. In spite of the above, since the petitioner was not relieved, he has filed this writ petition. 11. I notice that the complaints Ext.R3A as well as Ext.R3B have arisen only after the filing of this writ petition. The sequence of events, in not relieving the petitioner of his duties in spite of Ext.P3 letter dated 19.4.2010, in deciding to move for an extention of his joining time and later on initiating disciplinary proceedings against him on the basis of Exts.R3A and R3B complaints all casts serious doubts on the bonafides of the action. The conduct of respondents 2 and 3 in the context in which they have initiated action against the petitioner gives rise to grave suspicion. It is curious that the present complaints against the petitioner were never there during the long period of time that the petitioner had been serving the 2nd and 3rd respondents. Therefore, the allegations in the counter affidavits cannot be accepted as such. It appears that respondents 2 and 3 were trying to delay and possibly defeat the object of the W.P.(C).No.15370 of 2010 10 petitioner to join the services of the 4th respondent. Even if it is assumed that the complaints are justified, most of the allegations therein are still remaining in the realm of allegations for the reason that Exts.R3A and R3B complaints are yet to be inquired into. Regarding the allegations levelled by the member of the Managing Committee that the petitioner had kept the premises of the Society locked from 22.5.2010 the explanation of the petitioner is that the same was necessitated for his safety since the committee member was trying to take away the records of the society without issuing any receipt. I do not propose to consider the genuineness of the above allegations or the sustainability of the explanation offered by the petitioner, in these proceedings. It is sufficient to notice that, in the nature of the allegations levelled against the petitioner it is clear that any loss that may ensue to 2nd and 3rd respondents from the alleged acts of misfeasance or malfeasance on the part of the petitioner is capable of being compensated in terms of money. In view of the fact that the petitioner has already submitted an undertaking Ext.P7, W.P.(C).No.15370 of 2010 11 even if the petitioner is relieved from service, the loss if any caused can be recovered from the petitioner by initiating appropriate proceedings in accordance with law. However, if the petitioner is ultimately found to be innocent, no power on earth can turn the clock back and restore to him all that he stands to lose. Therefore the balance of convenience is strongly in favour of relieving the petitioner to join the service of 4th respondent. 12. Advocate Sri.P.C.Haridas appearing for respondents 2 and 3 placed reliance on the decision reported in Yogeswara Panicker V. Kerala State Institute for Languages, (ILR 1997 (3) Kerala 151), wherein it has been held by this Court that the resignation submitted by an employee shall take effect only on the same being accepted by the employer. It is further held that where an order of suspension is passed against an employee, he cannot escape from the culpability of his deeds by tendering his resignation from the post. In such case, the management is at liberty to refuse to accept his resignation. However, I do not think that the dictum in the W.P.(C).No.15370 of 2010 12 said decision has any application to the facts of this case. As noticed earlier, though the petitioner had served the 3rd respondent for more than 15 years there was no cause for any complaint against him at any time. The complaints surfaced only after he filed this writ petition. Ext.P3 resignation is long before any such complaints even came into existence. Therefore, I do not think that this is a case where respondents 2 and 3 are justified in detaining the petitioner in their service, without relieving him. For the forgoing reasons this writ petition is allowed. The 1st respondent is directed to issue urgent orders directing the 2nd and 3rd respondents to relieve the petitioner of his services by releasing to him the necessary relieving order, conduct certificate, etc and to ensure that the petitioner is so relieved before 30.6.2010 so as to enable him to join duty under the 4th respondent within the stipulated time. No costs. K.SURENDRA MOHAN, JUDGE. mns