IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 WP(C).No. 26247 of 2005(Y) ----------------------------------------- PETITIONER: -------------------- MANAGING COMMITTEE OF SREE NARAYANA COLLEGE CO-OP.SOCIETY, KOLLAM, REPRESENTED BY ITS HONOURARY SECRETARY, PREMKUMAR.R. LECTURER(ENGLISH S.N.COLLEGE, KOLLAM, RESIDING AT “KAMBISSERIL”, VIDYA NAGAR, PATTATHANAM EAST, KOLLAM. BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM) RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, TRIVANDRUM. 3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOLLAM. 4. G.LALITHA BHAI, LAILA SADANAM, MUNDAKKAL, KOLLAM. R1 TO R3 BY GOVERNMENT PLEADER SRI. P.K.RAVIKRISHNAN R4 BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.K.K.RAJEEV SMT.C.V.RAJALAKSHMI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.26247/2005 Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PETITION DTD. 26/11/97 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT REQUESTING TO ENQUIRE THE MALPRACTICE COMMITTED BY THE ADMINISTRATOR. EXT.P2: COPY OF THE ORDER O.SNC/CS.60/97 DTD. 26/11/97 ISSUED BY THE PETITIONER SUSPENDING THE 4TH RESPONDENT. EXT.P3: COPY OF THE SHOW CAUSE NOTICE NO.C.S.7577/97 DTD. 13/02/98 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P4: COPY OF THE REPLY NO.SNC/CS.16/98 DTD. 26/02/98 FILED BY THE SECRETARY OF THE PETITIONER SOCIETY BEFORE THE 3RD RESPONDENT. EXT.P5: COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS AS PER LETTER NO.SNC/CS/22/98 DTD. 19/03/98 ISSUED BY THE PRESIDENT OF THE PETITIONER SOCIETY TO THE 4TH RESPONDENT. EXT.P6: COPY OF THE REPLY TO EXT.P1 STATING THAT THE ADMINISTRATOR HAD ACTED WITH IN HIS JURISDICTION VIDE LETTER NO.V(1) 5111111503/97 DTD. 24/03/98 BY THE 2ND RESPONDENT. EXT.P7: COPY OF THE ORDER NO.C.S.7577/97 DTD. 25/03/98 ISSUED BY THE 3RD RESPONDENT RECINDING THE DECISION OF THE COMMITTEE. EXT.P8: COPY OF THE APPEAL DTD. 25/04/98 UNDER SECTION 83(2) FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P9: COPY OF THE LETTER DTD. 6/04/98 SUBMITTED BY THE 4TH RESPONDENT TO THE PETITIONER SOCIETY REQUESTING THE REINSTATE HER IN SERVICE. EXT.P10: COPY OF THE LETTER NO.SNC/CS.29/98 DTD. 13/04/98 ISSUED BY THE PETITIONER INFORMING LALITHA BAI THAT IT IS NOT POSSIBLE TO REINSTATE HER IN SERVICE TILL THE COMPLETION OF DOMESTIC ENQUIRY ALREADY INITIATED VIDE EXT.P5. Kss ..2/- ...2.... WPC.NO.26247/2005 Y EXT.P11: COPY OF THE LETTER NO.CS.7577/97 DTD. 11/05/98 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER SOCIETY THREATENING THAT PROCEEDINGS UNDER SECTION 32 WOULD BE INITIATED AGAINST THE PETITIONER IF LALITHA BAI IS NOT REINSTATED IN SERVICE. EXT.P12: COPY OF THE ORDER DTD. 8/06/98 OF THE LABOUR COURT, KOLLAM. EXT.P13: COPY OF THE ENQUIRY REPORT DTD. 27/07/98. EXT.P14: COPY OF THE SHOW CAUSE NOTICE NO.SNC/CS.50/98 DTD. 14/08/98 ISSUED BY THE PETITIONER TO THE DELINQUENT. EXT.P15: COPY OF THE REPRESENTATION DTD. 27/08/98 SUBMITTED BY THE 4TH RESPONDENT TO THE PETITIONER DENYING THE ALLEGATIONS. EXT.P16: COPY OF THE ORDER NO.SNC/CS.72/98 DTD. 9/11/98 ISSUED BY THE PETITIONER REMOVING THE 4TH RESPONDENT FROM SERVICE. EXT.P17: COPY OF THE REPRESENTATION DTD. 10/06/99 SUBMITTED BY THE 4TH RESPONDENT TO THE PETITIONER SOCIETY REQUESTING TO REVIEW HER REMOVAL AND PRAYED FOR A REINSTATEMENT. EXT.P18: COPY OF THE LETTER NO.CS/7577/99 DTD. 2/12/99 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DIRECTING TO REINSTATE THE 4TH RESPONDENT FAILING WHICH PROCEEDINGS UNDER SECTION 32 WOULD BE INITIATED AGAINST THE PETITIONER. EXT.P19: COPY OF THE LETTER NO.SNC/CS 27/99 DTD. 14/12/99 SENT BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.P20: COPY OF THE NOTICE NO.CS 7577/97 DTD. 31/03/2000 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P21: COPY OF THE JUDGMENT DTD. 28/01/2002 IN O.P.NO.15495/2000 OF THIS HON'BLE COURT. Kss ...3/- ...3..... WPC.NO.26247/2005 Y EXT.P22: COPY OF THE ORDER NO.C.S.3627/2000 DTD.2/11/2002 SUPERCEEDING THE PETITIONER SOCIETY. EXT.P23: COPY OF THE JUDGMENT DTD. 8/01/2004 IN O.P.NO.37415/2002 OF THIS HON'BLE COURT. EXT.P24: COPY OF THE LETTER NO.C.S.3627/2000 DTD. 17/03/2004 ISSUED BY THE 3RD RESPONDENT. EXT.P25: COPY OF THE JUDGMENT DTD. 27/09/04 IN R.P.NO.295/2004 IN O.P.NO.37415/2000 OF THIS HON'BLE COURT. EXT.P26: COPY OF THE G.O.(RT) NO.367/2005/CO-OP. DTD. 14/06/2005 ISSUED BY THE 1ST RESPONDENT. /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.26247 OF 2005 ------------------------------------------- Dated this the 25th day of February, 2008 JUDGMENT The petitioner, a co-operative society, employed the 4th respondent. She entered service on 9.11.1981. She availed leave from 1.6.1988 to 30.7.1988 on medical grounds. This was sanctioned. Thereafter, going by the records, she rejoined duty only on 18.12.1996. Though there are controversies as to whether it was the 4th respondent who had deserted her service or whether it was a case of the petitioner management harassing her by forcing her to discharge duties and responsibilities attached to two posts, all those issues have culminated in a claim petition being filed before the Labour Court, which said that she could draw her salary only as a Sales Woman and not as a Clerk. But the fact remains that she rejoined duty only on 18.12.1996, after the expiry of her medical leave on 30.7.1988, that too, during a period when an administrator was in office from 4.10.1996. Thereafter, an elected committee came into office and they resolved to request the higher statutory WPC.26247/05 Page numbers authorities to take action against the administrator for the decision leading to the 4th respondent rejoining service on 18.12.1996. The committee also resolved to place the 4th respondent under suspension and to proceed with certain actions against her. She was placed under suspension, by the committee, on 26.11.1997. An enquiry followed and she was dismissed from service on 9.11.1998. In the interregnum, it appears that the order of suspension was interfered with by the Deputy Registrar. This means that she was entitled to be treated as a person who continued in service without an order of suspension, until she was dismissed from service on 9.11.1998. On the basis of the complaint of the petitioner employer against the decision of the administrator permitting the 4th respondent to rejoin duty on 8.12.1996, the Registrar held that the action of the administrator was in order and that the 4th respondent was not liable to be kept out of service. The petitioner carried an appeal. That stands rejected by the Government. However, the intervening decision of the Labour Court holding that the 4th respondent was employed only as a Sales Woman has become WPC.26247/05 Page numbers final. The revocation of her suspension by the Deputy Registrar is also final. Her ultimate dismissal from service on 9.11.1998 was also not challenged. The punishment of dismissal imposed on her has also become final. I am not persuaded to accept the argument on her behalf that by the cancellation of the order of suspension, disciplinary proceedings should be deemed to have ended. The mere cancellation of suspension would only result in the 4th respondent's entitlement, at the most, to be treated as if she was not suspended. This does not mean, as a necessary corollary, that the disciplinary proceedings have been stultified. 2. Imposing the impact of the official verdict of the Government, it has to be noticed that the Government ordered reinstatement with all consequential benefits and regularization of the entire service from 30.7.1988 till the date of dismissal on 9.11.1998, which includes the period from 30.7.1988 to 18.12.1996, during which period, she was admittedly not attending office. WPC.26247/05 Page numbers 3. Having regard to what is aforesaid, it is apparent that the 4th respondent, after having enjoyed medical leave from 1.6.1988 to 30.7.1988 rejoined duty only on 18.12.1996. Though she laments that she was kept away from duty, was harassed and that is why she did not rejoin, there is no material to hold that between 1.6.1988 and 18.12.1996, she made any appropriate complaint before any of the statutory authorities, to have any directions issued in relation to her such grievance. With that in view and having regard to the fact that the 4th respondent has not, until now, contributed anything to the service right from 30.7.1988, except for the period from 18.12.1996 to 9.11.1998, the date of her dismissal, an order for reinstatement with backwages and regularisation of the entire service from 30.7.1988 would be wholly inappropriate and against the interest of the establishment. To do so would be totally unjust. 4. The learned counsel for the petitioner rightly pointed out that the suspension of the 4th respondent from service was not apparently, challenged by her. But the fact remains that she WPC.26247/05 Page numbers had been before the different authorities at least after she was placed under suspension and all those proceedings were considered by the statutory authorities, including the Government, also touching the question of dismissal from service. Having regard to the economic strata to which the 4th respondent would belong and she having been only a Sales Woman in the service of the petitioner, I am inclined to take the view that the entire matter requires to be dealt with by this Court under authority under Article 226 of the Constitution of India. 5. With the passage of time, the 4th respondent would have been due to retire on 31.3.2008, if the order of dismissal is set aside and she be in service. Under such circumstances and noticing the entire facts of the case, this writ petition is disposed of directing that the impugned orders will stand modified and regulated by what is stated hereunder: WPC.26247/05 Page numbers (i) The service of the 4th respondent would be treated as continues from 18.12.1996 to 9.11.1998, the date of the order of her dismissal from service. (ii) The order of dismissal dated 9.11.1998 will stand set aside and the 4th respondent shall stand reinstated with 1/4th back wages from the date of dismissal. (iii) Her period of service from 9.11.1981 to 30.7.1988 will also be reckoned for the purpose of determining the total length of service to arrive at the retiral benefits, including pension. In terms of this judgment, it is directed that the competent authority to determine the pension shall also follow what is stated herein. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.