IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 WP(C).No. 38073 of 2003(G) -------------------------------------- PETITIONER: ------------------ PANAVALLY SERVICE CO-OPERATIVE BANK LTD., NO.901, PANAVALLI P.O. CHERTHALA, ALLEPPEY REP. BY THE PRESIDENT, MR. K.M.KHALID. BY ADV. SRI.P.N.MOHANAN RESPONDENTS: ---------------------- 1. GOVERNMENT OF KERALA, REP. BY SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIE ALLEPPEY. 3. K.PURUSHOTHAMAN NAIR, JAYA NIVAS, PANAVALLY P.O. CHERTHALA, ALLEPPEY. 4. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, CHERTHALA. R3 BY ADV. SRI.ALIAS M.CHERIAN GOVERNMENT PLEADER SRI. P.K.RAVIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/02/2008, ALONG WITH WPC NO. 38188 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 38073/2003 G APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE REPORT OF THE UNIT INSPECTOR DT. 4/11/91. EXT.P2. COPY OF THE DISMISSAL ORDER DT. 27/1/94 OF THE R3. EXT.P3. COPY OF THE ORDER PASSED BY THE JOINT REGISTRAR DT. 13/08/97. EXT.P4. COPY OF THE ORDER PASSED BY CONVENOR OF THE SUB COMMITTEE DT. 5/5/98. EXT.P4A. COPY OF THE POSTAL ENDORSEMENT OF THE LETTER RETURNED UNSERVED WAS SEEN IN THE REVERSE OF THE EXT.P4 ORDER. EXT.P5. COPY OF THE ORDER IN APPELA DT. 1/09/00 OF THE GOVT. EXT.P6. COPY OF THE ORDER PASSED BY THE JOINT REGISTRAR ON 1/07/02. EXT.P7. COPY OF THE JUDGMENT IN OP NO. 19578/02 BEFORE THIS COURT DT. 5/08/02. EXT.P8. COPY OF THE JUDGMENT IN OP NO. 997/94 DT. 31/3/2003. EXT.P9. COPY OF THE ORDER PASSED BY THE R1 DT.1/09/03. RESPONDENT'S EXHIBITS EXT.R3(1). COPY OF THE DISMISSAL ORDER DT. 27/1/94. EXT.R3(2). COPY OF THE AGREEMENT EXECUTED WITH THEGRADER DT. 20/08/90. EXT.R3(3). COPY OF THE AGREEMENT EXECUTED WITH GRADER DT. 29/07/91. EXT.R3(4). COPY OF THE AGREEMENT EXECUTED WITH THE GRADER DT. 30/4/92. EXT.R3(5). COPY OF THE REPORT DT. 28/12/92 OF THE ASST. REGISTRAR. EXT.R3(6). COPY OF THE ORDER NO. CRP(1) 943/93 DT. 13/1/94 ISSUED BY THE JOINT REGISTRAR TAKING SURCHARGE PROCEEDINGS. EXT.R3(7). COPY OF THE LETTER DT. 10/09/93 BY THE JUNIOR CONCURRENT AUDITOR. EXT.R3(8). COPY OF THE ORDER NO. CRP(1) 2928/96/K.DIS DT. 13/08/97 BY THE JR UNDER RULE 176. EXT.R3(9). COPY OF THE GO RT NO. 387/2000/CRP DT. 1/09/00 BY THE APPELLATE AUTHORITY. WP(C) NO: 38073/2003 G EXT.R3(10). COPY OF THE LAWYER'S NOTICE DT. 8/12/00. EXT.R3(11). COPY OF THE REPRESENTATION DT. 14/11/00 FOR GETTING THE PF AMOUNT. EXT.R3(12). COPY OF THE JUDGMENT DT. 18/12/2001 IN OP NO. 19887/2001. EXT.R3(13). COPY OF THE ORDER NO. CRP 1 1865/1 DT. 1/07/02 BY THE JR UNDER RULE 176. EXT.R3(14). COPY OF THE JUDGMENT DT. 5/08/2002 IN OP NO. 19578/2002. EXT.R3(15). COPY OF THE LETTER NO. D./901/02 DT. 27/08/2002 BY THE SOCIETY REFUSING PF AMOUNT. EXT.R3(16). COPY OF THE ORDER DT. 09/09/2002 IN CMP NO. 42276/02 IN OP NO. 19578/2002. EXT.R3(17). COPY OF THE LAWYER'S NOTICE DT. 13/09/02. EXT.R3(18). COPY OF THE ORDER NO. 495/2002 DT. 3/10/2002 BY THE SOCIETY ADJUSTING PF AMOUNT. EXT.R3(19). COPY OF THE REPLY DT. 3/11/2002. EXT.R3(20). COPY OF THE ORDER OF THE APPELLATE AUTHORITY DT. 1/09/2003. EXT.R3(21). COPY OF THE PETITION DT. 20/2/2002 FILED BY THIS RESPONDENT UNDER RULE 176. True copy tga THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).Nos.38073/2003-G & 38188/2003-U = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of February, 2008. JUDGMENT 1.The petitioner in the latter among the captioned matters is an employee of the petitioner in the former. He was dismissed from service. This led to the culmination of the disciplinary proceedings in GO(Rt)No.506/2003/Co-op. dated 1- 9-1993 which is impugned by the employer society. 2.It has been found by the Government that the employee had superannuated on 31-12-1994 and still further, that the disciplinary proceedings against him and the imposition of punishment are illegal, arbitrary and in violation of the natural justice. The said Government Order specifically refers to the evidence and the rival contentions and has applied the relevant laws to WP(C)38073 & 38188/2003 -: 2 :- hold that the procedure under Rule 198 of the Kerala Co-operative Societies Rules was not complied with and that the order of the Joint Registrar does not warrant interference in the appeal at the hands of the Government. With the passage of time, the approach of the employer society was to ensure that monies which it asserted as due to it are recovered from the employee. 3.But, a perusal of paragraph 8 of WP(C).38073/2003 would show that though the society invoked proceedings by way of arbitration under Section 69 of the Kerala Co-operative Societies Act, that was withdrawn on the ground that the Assistant Registrar was not passing any orders and the committee of the society withdrew the arbitration and is stated to have recovered the amounts due to the society from the retiral benefits of the employee. A statement of accounts is also shown in paragraph 8 of WP(C).38073/2003 disclosing a total amount of Rs.2,42,599/- as due retiral WP(C)38073 & 38188/2003 -: 3 :- benefits as against which liabilities to the tune of Rs.1,96,970.74 are fixed. 4.The learned counsel for the employee is right in arguing out that there was no adjudicatory proceedings or any decision on the basis of which any liability could be fastened. An examination of the statement of accounts as shown in paragraph 8 of WP(C).38073/2003 would show that the major chunk of the liabilities fixed against the employee is on account of shortage of copra. 5.Before I proceed further on the question whether the employer society was entitled to make deduction by fixing any liability for shortage of copra, I may state that in so far as the other liabilities fixed are concerned, fixation cannot be treated as arbitrary or irrational because, one of the heads of liabilities is loan with accrued interest. The amounts covered by the audit certificates and other heads are also respectively on the lower side. I, therefore, do not deem it WP(C)38073 & 38188/2003 -: 4 :- appropriate to enter on any consideration as to the entitlement to make such deductions except as regards the question of deducting an amount of Rs.1,69,363/- towards shortage of copra. 6.On to the deduction on the ground of alleged shortage of copra, it has to be noticed that there is no service condition pleaded on or shown, on the basis of which the employer society could have fixed the liability by itself. That apart, it is the specific case of the employee that even the statutory authorities had concluded that no liability could be fastened exclusively on the employee in question. Apart from that, it has also to be noted that there is no provision in the Kerala Co-operative Societies Act and Rules and no provision is pointed out either with reference to bye-laws or other conditions of service, on the basis of which the employer gets a right to decide on any monetary liability of the employee. Under such circumstances, the only course that was available was to proceed for an arbitration which, WP(C)38073 & 38188/2003 -: 5 :- unfortunately, has been withdrawn. Hence, there can be no excuse for the society in the matter of disbursal of the amount withheld towards alleged shortage of copra. 7.In the aforesaid circumstances, while affirming the decision of the Government confirming the Joint Registrar's decision on the disciplinary proceedings in favour of the employee and also the different other recoveries which are enumerated as liabilities in paragraph 8 of WP(C).38073/2003, it is declared that the employer society is not entitled to withhold or recover any amount towards shortage of copra without getting an adjudication and an order for recovery from the competent authority in accordance with law. Under such circumstances, the employee, namely, the petitioner in WP(C).38188/2003, is entitled to be paid the entire amounts found due to him as retiral benefits, i.e., Rs.2,42,599/- less the liabilities as covered by the four audit certificates and dues towards the loan accounts. WP(C)38073 & 38188/2003 -: 6 :- This means that the amount of Rs.1,69,363/- shown as shortage of copra cannot be recovered. That shall, therefore, stand deleted from the list of liabilities enumerated in paragraph 8 of WP(C). 38073/2003. All amounts due in terms of the declarations herein above shall be released to the petitioner in WP(C).38188/2003 within an outer limit of two months from the date of receipt of a copy of this judgment. Having heard counsel for parties, the claim for interest is refused. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/