IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 OP.No. 34718 of 2002(G) ----------------------------------- PETITIONER: -------------------- KUTTIYIL SALAM, MEMBERSHIP NO.2257, KUTTIYIL PADINHATTIL, PATTATHANAM, MUKUNDAPURAM P.O., CHAVARA BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENTS: ------------------------ 1. THE JOINT REGISTRAR (GENERAL), OFFICE OF THE CO-OPERATIVE JOINT REGISTRAR, KOLLAM. 2. THE PART TIME ADMINISTRATOR, 2471 PATTATHANAM SERVICE CO-OPERATIVE BANK, THEVALAKKARA UNIT INSPECTOR, ASST. REGISTRAR (G), CO-OPERATIVE OFFICE, KARUNAGAPPALLY. 3. M.NIZAMUDDIN, CASHIER, PATTATHANAM SERVICE CO-OPERATIVE BANK, MUKUNDAPURAM, CHAVARA. R1 BY GOVERNMENT PLEADER SMT. M.K.PUSHPALATHA BY ADV. SR.B.S.SWATHIKUMAR R2 BY ADV. SMT.P.A.ANITHA R3( BY ADV. SRI.V.G.ARUN ( SRI.T.R.HARIKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/02/2008 ALONG WITH WPC NO. 33068 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.58818/2002 IN O.P.NO.34718/2002 G DISMISSED 05/02/2008 SD/- THOTTATHIL B.RADHAKRISHNAN, J U D G E. APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER OF THE 2ND RESPONDENT DTD. 2/05/2002. EXT.P2: COPY OF THE NOTICE ISSUED BY THE SUB-COMMITTEE OF THE SOCIETY, TO THE 3RD RESPONDENT, DTD. 19/11/1998. EXT.P3: COPY OF THE PETITION FILED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT, DTD. 15/01/2002. EXT.P4: COPY OF THE NOTICE NO.C.R.P.(2)601/02, DTD. 5/07/2002. EXT.P5: COPY OF THE ORDER NO.C.R.P.(2)601/02, DTD, 10TH OCTOBER, 2002. 3RD RESPONDENT'S EXHIBITS: EXT.R3(A): COPY OF THE LETTER NO.877/96 DTD. 13/12/1996 OF THE ASSISTANT REGISTRAR (GENERAL), KARUNAGAPALLY. EXT.R3(B): COPY OF THE CHARGE MEMO DTD. 17/01/1997 OF THE 3RD RESPONDENT. EXT.R3(C): COPY OF THE AWARD IN A.R.C.NO.107/2000 DTD. 30/08/2000 OF THE COURT OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOLLAM. EXT.R3(D): COPY OF THE ORDER NO.P.6483/2001 DTD. 6/11/2002 OF THE JOINT REGISTRAR (GENERAL), KOLLAM. EXT.R3(E): COPY OF THE AUDIT CERTIFICATE NO.M/69/2000/R.DIS. DTD. 28/08/2000 OF THE KERALA STATE CO-OP.DEPARTMENT. EXT.R3(F): COPY OF THE AUDIT CERTIFICATE NO.M/246/2001/R.DIS. DTD. 26/09/2001 OF THE KERALA STATE CO-OP.DEPARTMENT. /TRUE COPY/ P.S.TO JUDGE Kss Thottathil B. Radhakrishnan, J. ================================== O.P.No.34718 of 2002 & W.P.(C)No.33068 of 2003 ================================== Dated this the 5th day of February, 2008. JUDGMENT These matters relate to the employment of the second respondent in WP(C)No.33068 of 2003. He entered the service of the Co-operative Bank on 2- 6-1977 and earned promotions to be a senior clerk on 1-7-1991. While working so, he was placed under suspension on 3-1-1997 and memo of charges were issued on initiation of disciplinary proceedings on certain counts. He remained ex-parte the proceedings and suffered an enquiry report by an independent enquiry officer holding him guilty of all, but two, counts of allegations against him. This resulted in his termination on 21-12-1998, the enquiry report having been approved by the sub committee. OP34718/02&WPC33068/03 -:2:- 2. Thereafter, the committee then in office, lost its quorum leading to the appointment of an Administrator. On 15-1-2002, the dismissed employee applied to the Joint Registrar to rescind the resolution terminating his service. He invoked Rule 176 of the Kerala Co-operative Societies Rules, 1969, hereinafter referred to as the “Rules”. At that point of time, Act 1/2000 was not in force and therefore the proceedings were in order in so far as the jurisdiction is concerned. After the appointment of the Administrator, an administrative committee came into office. Thereafter, after affording the administrative committee an opportunity of hearing, the Joint Registrar rescinded the resolution and further ordered reinstatement with backwages. On 6-11- 2002, the administrative committee was removed and a part time Administrator was brought in, who, in turn, acted on the decision of the Joint Registrar OP34718/02&WPC33068/03 -:3:- and reinstated the employee with effect from 18-11- 2002. 3. O.P.No.34718 of 2002 was filed on 20-11- 2002 by a member of the administrative committee which was in office on the ground that the decision of the Registrar to reinstate the employee with backwages is illegal and the same is to be set aside. Thereafter, election was held in the society, following directions of this Court and the elected committee came into office on 11-7-2003 following which, on 21-10-2003 a writ petition was filed by the Society through the elected committee, challenging the Registrar's decision. 4. The learned counsel appearing in O.P.No.34718 of 2002 submitted that the administrative committee in office was not willing to take the order of reinstatement as issued by the Registrar because the same was per se illegal and OP34718/02&WPC33068/03 -:4:- it was therefore that the administrative committee was removed and a part-time Administrator was appointed on 6-11-2002, following which the part time Administrator reinstated the employee based on the directions of the Registrar as contained in the impugned order. He argued further that the administrative committee was not afforded sufficient opportunity of hearing and that the order is issued in excess of jurisdiction. 5. Learned counsel for the petitioners in WP (C)No.33608 of 2003 argued that the application of the employee before the Joint Registrar was highly belated and no order under Rule 176 of the Rules ought to have been issued, particularly when, it was indisputably a matter of record that the employee, after being placed under suspension, had left India. It is also pointed out that the nature of the charges against the employee ought to have OP34718/02&WPC33068/03 -:5:- deterred the Registrar from interfering with the punishment. 6. Per contra, the learned counsel for the employee argued that the impugned order is reasonable, fair, legal, with jurisdiction and is therefore not liable to be set aside. It is pointed out that the Registrar had issued the orders after affording an opportunity to the administrative committee which was in office, which opportunity was not utilised. It is further argued that the Administrator had passed a resolution on the basis of the impugned order to reinstate the petitioner; that was well within authority and therefore the subsequent elected committee does not have the right to sustain a writ petition like WP (C)No.33068 of 2003 and if that is permitted, every action of an Administrator or an administrative committee could be torpedoed by an elected committee which comes into force at a later point OP34718/02&WPC33068/03 -:6:- of time. He further pointed out that while the petitioner was only a Cashier, one Kamalamma Pillai, charges against whom are more grievous was also placed under suspension and that following the arbitration award in favour of that person, the Society not only took her back into service but also extended various benefits. He also referred to a material Ext.R3(d) in O.P.No.34718 of 2002, to show that the administrative committee was removed on account of the disobedience of the Registrar's direction contained in the impugned order. 7. Learned counsel for the petitioner in WP (C)No.33068 of 2003, though not shown by the materials on record in this case, pointed out that in so far as Kamalamma Pillai's case is concerned, that issue had come to this Court and, to close her case finally, in view of the fact that she had by that time retired from service, she had to forego a OP34718/02&WPC33068/03 -:7:- good amount of money that would otherwise have been given to her. 8. The charges against the employee, consist of to different allegations as to non-maintenance of accounts, failure to make appropriate endorsements on certain documents relating to accounts, certain allegations of improper accounting of amounts and also certain allegations that amounts were lost. There are also allegations of misappropriation. The enquiry officer, as already noticed, found all charges against the employee, except two, out of the 22 charges. Admittedly, the employee did not participate in the enquiry proceedings. He also left India and was employed elsewhere. Learned counsel states that the employee was paid subsistence allowance only for one month and obviously he had to sustain his family. The Registrar, in the impugned order, found that the presenting officer before the OP34718/02&WPC33068/03 -:8:- enquiry officer was none other than a member of the sub committee and therefore rules of natural justice has been violated. He however held on the basis of the materials tendered before the enquiry officer that, the charges against the employee are not quite sustainable. As a result, the punishment of reinstatement was set aside by the Registrar, rescinding the resolution of the committee. But, contrary to the limits of jurisdiction available in that regard, the Registrar overstepped the bounds and directed reinstatement with backwages. The Registrar is not imputed with malice. The fact that the employee approached the Registrar at a distant point of time, if viewed in the proper perspective, would show that the delay of four years was a matter within the knowledge of the Registrar. The power to rescind the resolution of removal from service was available with the Registrar in terms of Rule 176 of the Rules. The exercise of such jurisdiction is aimed to be for OP34718/02&WPC33068/03 -:9:- the interest of the Society. On the whole, it is not available in the writ jurisdiction to hold that the order rescinding the resolution of dismissal is either without jurisdiction or arbitrary, capricious or otherwise requiring to be set aside in exercise of visitorial jurisdiction. 9. This leads to the question regarding the direction of the Registrar to reinstate the employee with full backwages. The directions, as is discernible from the impugned order, is only for reinstatement with retrospective effect. So much so, it cannot be treated as a case where there was an order for reinstatement with backwages. All that the Registrar could have meant by saying that reinstatement with retrospective effect is to direct that there has to be a reinstatement with continuity of service, there is no clear direction regarding backwages. On the jurisdictional aspect, the Registrar does not have the power to issue a OP34718/02&WPC33068/03 -:10:- direction for reinstatement or for grant of backwages. Once the resolution resulting in the dismissal of the employee is rescinded in exercise of authority under Rule 176, in the normal course, the disciplinary proceedings would become open for further consideration at the hands of the employer Society. 10. However, with the passage of time and in the nature of the contentions and in view of the indisputed fact that Kamalamma Pillai has been reinstated with certain benefits, I do not deem it necessary or appropriate to relegate the parties to further litigations, more so when the employee, whose case is in hand, is also likely to retire from service shortly. That apart, the fact situation, as available, as on today, is that he was reinstated by the Administrator on 18-11-2002 and is continuing in the said establishment as on today. OP34718/02&WPC33068/03 -:11:- 11. Having heard the learned counsel for the parties, I am of the view that ends of justice would be satisfied if reinstatement of the employee is with continuity of service without backwages for the period which he was out of service, that is, from the date of suspension till the date of reinstatement, however letting him earn such benefits of service as are attributable to the continuity of service, including all financial benefits. This would give a quietus to the litigation, rather than remit it for reconsideration. 12. In the result, the impugned order is declared illegal to the extent it orders reinstatement. The reinstatement of the petitioner by the administrative committee is sustained and such reinstatement shall be treated to be one with OP34718/02&WPC33068/03 -:12:- continuity of service for all purposes, however with no backwages. Writ petitions are disposed of in the above terms. Thottathil B.Radhakrishnan, Judge. sl.