IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 WA.No. 2330 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.18067/2004 Dated 18/07/2008 .................... APPELLANT: -------------- MUVATTUPUZHA-KOTHAMANGALAM PRIMARY CO.OP .AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO., 4389, MUVATTUPUZHA, REP. BY ITS PRESIDENT. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF CO.OPERATION, GOVT, SECRETARIAT, TRIVANDRUM. 2. REGISTRAR OF CO.OP.SOCIETIES, TRIVANDRUM 3. JOINT REGISTRAR OF CO.OP.SOCIETIES (GENERAL), ERNAKULAM. 4. N.D.JOSEPH, NADUKUDIYIL HOUSE KARUMPALAMATTOM, KARIMANNOOR PO. THODUPUZHA, IDUKKI. GP MR.R.BINDU FOR R1 TO R3 ADV. SRI.SAJEEV KUMAR K.GOPAL FOR R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 9.12.2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ WA No.2330 of 2008 ------------------------------------------------------------------ Dated 9th December 2009 Judgment Balakrishnan Nair, J. The writ petitioner is the appellant. The Writ Petition was filed by it, challenging Ext.P7 proceedings of the third respondent Joint Registrar of Co-operative Societies (General), Ernakulam and Ext.P10 order of the 1st respondent Government. 2. The brief facts of the case are the following : The 4th respondent joined the service of the appellant Society as Attender on 17.11.1978. In due course, he got promotions and in 1994, he was promoted and posted as Administrative Officer. While working in that post, he was suspended from service by order dated 30.03.1999. He was served with Ext.P2 memo of charges dated 31.05.1999, to which, he submitted Ext.P3 reply, denying the allegations raised against him. While so, the appellant Society constituted a Sub- committee, consisting of two members of its Managing Committee, to enquire into the charges levelled against the 4th respondent. The said Committee found the 4th respondent guilty WA No.2330/08 2 of 11 charges and submitted Ext.P4 enquiry report. The Sub- committee of the Society, which is the disciplinary authority as per Rule 198 of the Kerala Co-operative Societies Rules, by Ext.P5 proceedings dated 27.04.2000, ordered to remove the 4th respondent from service and also to recover the amount, which was allegedly lost to the Society, as a result of his commissions and omissions. The 4th respondent appealed to the Managing Committee of the Society. The Appellate Authority, by Ext.P6 order dated 28.07.2001, converted the punishment into one of reversion as the junior-most Junior Supervisor. The punishment regarding recovery of the amount due to the Society, was sustained. The 4th respondent moved the 3rd respondent Joint Registrar of Co-operative Societies, praying to rescind the decisions of the Sub-Committee and the Managing Committee, under Rule 176 of the Kerala Co-operative Societies Rules. The Joint Registrar, by Ext.P7 proceedings dated 16.10.2002, modified the punishment into reversion to the post of Senior Supervisor. Instalment facility was also provided for repayment of the amount due to the Society. The 4th respondent filed Ext.P8 appeal and the appellant preferred Ext.P9 appeal before the WA No.2330/08 3 Government, challenging Ext.P7. The Government, after hearing both sides, by Ext.P10 order dated 26.05.2004, allowed Ext.P8 appeal filed by the 4th respondent and dismissed Ext.P9 appeal filed by the appellant. The Government took the view that the decisions impugned, are not in the best interest of the Co-operative Society and therefore, they were rescinded. Liberty was given to the appellant to impose the punishment of barring increments with or without cumulative effect, as provided under Rule 198(1)(c) of the Kerala Co-operative Societies Rules, on the 4th respondent. Challenging Exts.P7 and P10, the Writ Petition was filed. The learned Single Judge, after hearing both sides, upheld the decision of the Government. Hence this appeal. 3. We heard the learned counsel Sri.K.Jaju Babu, who appeared for the appellant and also the learned counsel Sri.Sajeevkumar.K.Gopal, who appeared for the 4th respondent. The learned counsel for the appellant took us through Ext.P2 memo of charges, Ext.P3 reply submitted by the 4th respondent and also Ext.P4 enquiry report submitted by the Sub-committee constituted by the appellant Society. We were also taken through Exts.P7 WA No.2330/08 4 proceedings passed by the Joint Registrar and Ext.P10 order passed by the Government. The learned counsel for the appellant submitted that the Joint Registrar has interfered with the punishment and passed the above said order, without giving any reasons. The Government considered the matter, as if it is constituted as the Appellate Authority over the decision of the Sub-committee of the Society. The power of the Joint Registrar to interfere with the order passed in a disciplinary action, under Rule 176 of the Kerala Co- operative Societies Rules, is very limited. While hearing the appeal, the Government cannot go beyond the powers of the Joint Registrar. But, in this case, the Government clearly exceeded its powers and acted as an Appellate Authority over the decision of the Managing Committee and substituted its decision for that of the Committee. The same is not permissible. The learned Single Judge, without taking into account, the parameters of the powers of the Joint Registrar under Rule 176 of the Kerala Co-operative Societies Rules, affirmed the impugned orders. On the above grounds, the learned counsel for the appellant prayed for allowing the appeal. The learned counsel for the 4th respondent, on the other hand, supported the impugned WA No.2330/08 5 orders as also the decision of the learned Single Judge. None of the charges revealed against him is serious enough to order his reversion. A punishment grossly disproportionate to the gravity of the offence will amount to victimisation and de-moralise the employees and such an action is not in the best interest of the Society. Therefore, the Government rightly invoked its appellate power against the order under Rule 176 of the Kerala Co-operative Societies Rules, in the case on hand. The learned Single Judge has rightly affirmed the same, it is submitted. 4. To attack the orders of the Joint Registrar and the Government, the learned counsel for the appellant mainly brought to our notice, two allegations against the 4th respondent. One was regarding the purchase of a house by the said respondent and the other was concerning payment of subsistence allowance and other amounts due to the Secretary of the Society, under suspension. The 4th respondent, while he was the owner of a land and building, applied for a housing loan to acquire another land and building near the Head Office of the Society. The same was illegal and irregular, it is submitted. Further, after availing a loan of Rs.2 lakhs, he WA No.2330/08 6 purchased a property, having value of only about Rs.50,000/-, it is pointed out. Regarding the first part of the allegation, it is common ground that the existence of a house and building in his village, is not a disqualification for applying a housing loan. Therefore, the wrong statement, if any, made regarding that irrelevant point, cannot be taken as a ground for imposing a major penalty. Regarding the second limb of the allegation, it is pointed out that to save stamp duty, the document was undervalued. The appraiser of the Bank has found that the land and building purchased by the 4th respondent was worth for the amount shown in the loan application. Undervaluing documents, is an illegal act, but the Government was inclined to accept the version given by the employee and took the view that it is not a serious matter. We think, the said view taken by the Government cannot be said to be a perverse decision, warranting interference. Regarding the payments made to the Secretary under suspension, there is no case that the 4th respondent has actually misappropriated the amounts. Under the instructions of the President of the Society, the amounts were transferred to the account of the Secretary, which were later drawn by the said WA No.2330/08 7 employee, after he was re-instated. If the Government takes a view that the matter is not that serious, warranting major penalty, this Court cannot interfere with the same in exercise of its power of judicial review. The same is the case with the other allegations also. The Government felt that the imposition of major penalty for such minor things will demoralise the employees, which in turn, will go against the best interest of the Society. Therefore, we find nothing wrong with the said decision. At any rate, it is not a matter for judicial review. The Government have taken a plausible view on the facts. While exercising the power of judicial review, this Court cannot substitute its views for that of the Government. So, we find no reason to interfere with the impugned orders or the Judgment under appeal. But the learned counsel for the appellant submitted that as early as on 20.09.2001, the post of Administrative Officer has been abolished and therefore, the direction of the Government to reinstate the 4th respondent as Administrative Officer, cannot be implemented. 5. Now, it is common case that there is a post of Assistant Secretary, available in the appellant Society. It is stated to be more or less equivalent to the post of Administrative Officer. So, the 4th WA No.2330/08 8 respondent shall be re-instated in the post of Assistant Secretary. If any loan amount is remaining unpaid by the 4th respondent, needless to say, the Society will be free to take appropriate action to recover the same from the said respondent. The Writ Appeal is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta WA No.2330/08 9