IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 WP(C).No. 6648 of 2005(N) ------------------------- PETITIONER: ------------ K.J. BENOY, KUZHIKANDATHIL HOUSE, SEETHA MOUNT POST, PULPALLY, WAYANAD. BY ADV. SRI.P.N.MOHANAN RESPONDENTS: ------------- 1. KABINIGIRI KSHEEROLPADAKA SAHAKARANA SANGAM LTD.NO.W. 19 (D) APCOS, KABANIGIRI POST, PULPALLY, WAYANAD, REPRESENTED BY TIS PRESIDENT. 2. DEPUTY DIRECTOR, DIARY DEVELOPMENT, WAYANAD. R1 BY ADV. SRI.KALEESWARAM RAJ R2 BY GOVT. PLEADER SRI.P.K.RAVIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.6648/05 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE WARNING DT.3.12.1995 ISSUED BY THE 1ST RESPONDENT SOCIETY. EXT.P1(a): TRUE COPY OF THE ORDER DT.3.12.1995 ISSUED BY THE1ST RESPONDENT. EXT.P2: TRUE COPY OF THE ORDER DATED 29.2.1996 ISSUED BY THE FIRST RESPONDENT. EXT.P3: TRUE COPY OF THE AWARD IN I.D.50/96 DT.19.6.1998. EXT.P4: TRUE COPY OF JUDGMENT IN O.P.15097/99 DT.12.3.2003 OF THIS HON'BLE COURT. EXT.P5: TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED TO THE PETITIONER DATED 7.4.2003. EXT.P6: TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DT.16.4.2003 TO THE SHOW CAUSE NOTICE. EXT.P7: TRUE COPY OF THE MEMO OF CHARGES LEVELLED AGAINST THE PETITIONER DT.23.4.2003. EXT.P8: TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DT.29.4.2003. EXT.P9: TRUE COPY OF THE LETTER DT.1.1.2005 INFORMING THE DECISION OF THE MANAGING COMMITTEE TO DISMISS THE SERVICE OF THE PETITIONER. RESPONDENT'S EXHIBITS: EXT.R1(a): TRUE COPY OF THE LETTER DATED 30.11.1995 ADDRESSED TO THE PRESIDENT OF THE 1ST RESPONDENT SOCIETY BY THE PETITIONER. EXT.R1(b): TRUE COPY OF THE ENQUIRY REPORT DATED 7.10.1995 WITH RESPECT TO THE PETITIONER. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.6648 OF 2005 ------------------------------------------- Dated this the 17th day of July, 2008 JUDGMENT The petitioner, an employee of the first respondent, was proceeded against on grounds of indiscipline, which led to his dismissal from service. The labour court interfered with that decision. That was set aside by this Court in Ext.P4, leaving the society with liberty to take fresh action in accordance with law and also to keep the petitioner under suspension, if needed. Thereafter, Ext.P9 has been issued by the President of the society stating that on 29.12.2004, the committee of the society has decided, on the basis of the enquiry report, that the petitioner has to be dismissed from service. 2. This writ petition against Ext.P9 decision dated 1.1.2005 has been admitted on 25.2.2005 and I do not deem it appropriate at this distant point of time to relegate the petitioner to any statutory alternate remedy since there is a clear infraction of the relevant statutory rule in relation to the impugned action. Rule WPC.6648/05 Page numbers 198 (3) of the Kerala Co-operative Societies Rules, 1969 provides the identity of the authorities to impose a punishment. In view of that rule, a punishment of dismissal could have been imposed on the petitioner by the sub committee and the petitioner would have had an opportunity of filing an appeal to the committee of the society. However, the impugned decision has been taken by the committee, whereby, the petitioner's right of appeal within the institution or establishment has been lost. If the committee of the society, as the appellate authority, had the opportunity to express the reasons for the dismissal, the petitioner could have further pursued the remedies under Section 69 of the KCS Act as amended by Act 1 of 2000. On the face of the infraction of Rule 198 (3), a clear case of violation of statutory duty and prescriptions of legislature has been made out. So much so, notwithstanding the plea of the first respondent that it may not be amenable to writ jurisdiction on the ground that the society does not come under the purview of Article 12 of the Constitution, it needs to be held that the impugned action is in WPC.6648/05 Page numbers clear violation of the statutory command in the KCS Act and Rules which govern a disciplinary proceedings. For the above short reason, Ext.P9 is quashed, leaving the society to have the sub committee for disciplinary proceedings, to hear the petitioner on the basis of the enquiry report and to take such decision as may be available, in accordance with law. The petitioner will continue to be under suspension, having regard to Ext.P4 judgment of this Court and the entitlement of the petitioner in that regard would be only for subsistence allowance in accordance with law. Such subsistence allowance shall be released within a month and proceedings concluded within a period of three months from the date of receipt of a copy of this judgment. The writ petition ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.18/7.