IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 WP(C).No. 22567 of 2010(U) -------------------------- PETITIONER: --------------- THE TALIPARAMBA CO-OPERATIVE HOUSE BUILDING SOCIETY LTD.NO.C.340, REPRESENTED BY ITS SECRETARY, TALIPARAMBA P.O., KANNUR DISTRICT. BY ADV. SRI.K.K.MOIDEEN SMT.AYSHA RAHMAN RESPONDENTS: --------------- 1. P.DHARANEEDHARAN, S/O. NARAYANAN, NO.16, NETHAJI HOUSING COLONY, TRICHAMBARAM, TALIPARAMBA P.O., KANNUR DISTRICT-670 141. 2. THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM, PIN-695 001. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ALONG WITH W.P.(C) NO.12146/2010 ON 03/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 22567/2010) PETITIONER'S EXHIBITS: P1: TRUE COPY OF MEMO OF CHARGES DT.22.12.2005. P2: TRUE COPY OF LETTER SENT BY R1 DT.19.1.2006. P3: TRUE COPY OF ORDER DT.18.3.2006. P4: TRUE COPY OF AWARD IN THE CO-OPERATIVE ARBITRATION OF TVM DT.23.4.2008. TRUE COPY PS TO JUDGE C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. .................................................................... W.P.(C) Nos.22567 & 12146 of 2010 .................................................................... Dated this the 3rd day of February, 2011. JUDGMENT Ramachandran Nair, J. The connected W.Ps. are filed by Co-operative Housing Bank and it's former Secretary. The Secretary was suspended on grounds of alleged misappropriation. The Bank appointed Enquiry Officer with whom the delinquent Secretary did not co-operate. However, when he was indicted in the Enquiry Report and disciplinary action was proposed, he approached the Arbitration Court constituted under Section 70A of the Co-operative Societies Act. During pendency of the Arbitration case, the Bank issued dismissal order against the delinquent Secretary. He, therefore, challenged the dismissal order also before the Arbitration Court and the Arbitration Court allowed his claim by setting aside the entire disciplinary proceedings initiated including his dismissal. It is this order that is challenged by the Co- operative Bank in W.P.(C) No.22567/2010. The connected W.P.(C) filed by the Secretary is for release of pension and retirement benefits W.P(C) 22567&12146/10 2 based on order of the Arbitration Court wherein his dismissal is cancelled. 2. We notice that even though allegation against the Secretary was very serious in nature and he was found guilty in the enquiry proceedings, the Arbitration Court has not gone into the merits of the case but interfered with the disciplinary proceedings only on ground of violation of natural justice. This is a case where the delinquent Secretary deliberately did not participate in the enquiry proceedings by alleging that the Enquiry Officer is biased. We do not think the Arbitration Court can exonerate the delinquent Secretary merely because enquiry proceedings were completed without giving opportunity to him i.e. in violation of natural justice. In our view, even if there is a procedural irregularity, which in this case is on account of deliberate absence of the delinquent employee, the Arbitration Court cannot exonerate the delinquent employee. However, we notice that the delinquent Secretary had expressed lack of faith in the Enquiry Officer for the reason that Enquiry Officer was otherwise associated with the Bank. We find force in this contention because the Enquiry W.P(C) 22567&12146/10 3 Officer is a Legal Advisor to the Bank and is also a local Advocate handling matters relating to the Bank. Counsel appearing for the Bank has submitted that Bank is in terrible financial position and it cannot even engage another Enquiry Officer for a fresh enquiry. We feel in the interest of all and in view of the allegation of bias against the Enquiry Officer appointed by the Bank by the delinquent Secretary, the Assistant Registrar of Co-operative Societies, Thaliparamba, could be appointed as the Enquiry Officer. Accordingly we set aside the order passed by the Arbitration Court and also the findings in the Enquiry Report and restore the matter for enquiry by the Assistant Registrar of Co-operative Societies, Thaliparamba, who is directed to complete the enquiry within a period of three months from date of receipt of copy of this judgment. The Bank will produce copy of this judgment and co- operate with the Assistant Registrar for completion of enquiry within time. The delinquent Secretary will be issued notice and he should also co-operate in the enquiry, failing which the Assistant Registrar will proceed to examine the documents, take evidence and complete the enquriy. The Bank is free to take disciplinary action based on the W.P(C) 22567&12146/10 4 findings in the fresh Enquiry Report in accordance with the procedure. Since the delinquent employee has retired from service and since enquiry is pending, there is no scope for giving terminal benefits to him until completion of enquiry and follow up action if any. Accordingly the eligibility for terminal benefits will depend on disciplinary action, if any, after fresh enquiry. W.P.(C)s are disposed of as above. C.N.RAMACHANDRAN NAIR Judge BHABANI PRASAD RAY Judge pms