Thiruvalla East Co-op.Bank Ltd. Vs. E.A.Abraham - Court Judgment

SooperKanoon Citationsooperkanoon.com/1016766
CourtKerala High Court
Decided OnJul-29-2013
JudgeHONOURABLE MR.JUSTICE A.M.SHAFFIQUE
AppellantThiruvalla East Co-op.Bank Ltd.
RespondentE.A.Abraham
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice a.m.shaffique monday, the 29th day of july2013/7th sravana, 1935 op(c).no. 2058 of 2011 (o) --------------------------- ap.no.15/2010 of kerala co-operative tribunal, thiruvananthapuram. ........... petitioner: --------------------- thiruvalla east co-operative bank ltd., no.3260, thiruvalla, pathanamthitta, represented by its general manager. by sri.p.ravindran, senior advocate. adv. smt.aparna rajan. respondent(s): ---------------------------- 1. e.a. abraham, thekkanamalayil, kunnathanam p.o., thiruvalla, pathanamthitta ”581. 2. co-operative arbitration court, thiruvananthapuram”001. 3. kerala co-operative arbitration tribunal, thiruvananthapuram-695 001. r1 by adv. sri.s.subhash chand. r2 & r3 by govt......
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE MONDAY, THE 29TH DAY OF JULY2013/7TH SRAVANA, 1935 OP(C).No. 2058 of 2011 (O) --------------------------- AP.NO.15/2010 OF KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. ........... PETITIONER: --------------------- THIRUVALLA EAST CO-OPERATIVE BANK LTD., NO.3260, THIRUVALLA, PATHANAMTHITTA, REPRESENTED BY ITS GENERAL MANAGER. BY SRI.P.RAVINDRAN, SENIOR ADVOCATE. ADV. SMT.APARNA RAJAN. RESPONDENT(S): ---------------------------- 1. E.A. ABRAHAM, THEKKANAMALAYIL, KUNNATHANAM P.O., THIRUVALLA, PATHANAMTHITTA ”

581.

2. CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM”

001.

3. KERALA CO-OPERATIVE ARBITRATION TRIBUNAL, THIRUVANANTHAPURAM-695 001. R1 BY ADV. SRI.S.SUBHASH CHAND. R2 & R3 BY GOVT. PLEADER SMT.ROSE MICHAEL. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2013, ALONG WITH W.P.(C) NO.15295 OF 2011.THE COURT ON 29/07/2013 DELIVERED THE FOLLOWING: rs. OP(C).No. 2058 of 2011 (O) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1 COPY OF THE MEMO CHARGES DATED 02 08/2006. EXT.P2 COPY OF THE ENQUIRY REPORT DATED 24 02/2007. EXT.P3 COPY OF THE COVERING LETTER DATED 24 02/2007. EXT.P4 COPY OF THE DELIVERY VOUCHER ISSUED BY THE COURIER OPERATOR DATED 24 02/2007. EXT.P5 COPY OF THE NOTICE DATED 26 02/2007. EXT.P6 COPY OF THE COMMUNICATION OF THE GENERAL MANAGER DATED 02 03/2007. EXT.P7 COPY OF THE LETTER DATED 03 03/2007. EXT.P8 COPY OF THE COMPLAINT DATED 07 03/2007. EXT.P9 COPY OF THE COMMUNICATION DATED 27 03/2007. EXT.P10 COPY OF THE MEMORANDUM OF APPEAL DATED 04 06/2007. EXT.P11 COPY OF THE NOTICE DATED 27 06/2007. EXT.P12 COPY OF THE ORDER OF THE BOARD OF DIRECTORS DATED 29 06/2007. EXT.P13 COPY OF THE PETITION DATED 07 10/2008. EXT.P14 COPY OF THE WRITTEN STATEMENT DATED 01 12/2008. EXT.P15 COPY OF THE ORDER OF THE ARBITRATION COURT DATED 05 12/2009. EXT.P16 COPY OF THE MEMORANDUM OF APPEAL DATED 25 03/2010. EXT.P17 COPY OF THE ORDER OF THE CO-OP.TRIBUNAL DATED 28 03/2011. RESPONDENT'S EXHIBITS & ANNEXURES:- EXT.R1A COPY OF THE ORDER DATED 15 06/2011 IN RP NO.259/2011 AND CONNECTED CASES PASSED BY THIS HONOURABLE COURT. EXT.R1B COPY OF THE BYELAW OF THE BANK. 2/-.......... OP(C).No. 2058 of 2011 (O) EXT.R1C COPY OF THE ORDER DATED 11 02/2011 PASSED BY JOINT REGISTRAR (G), PATHANAMTHITTA. EXT.R1D COPY OF THE PETITION DATED 09 05/2011 SUBMITTED BY RESPONDENT NO.1 BEFORE THE JOINT REGISTRAR (G) PATHANAMTHITTA. EXT.R1E COPY OF THE REPLYDATED 14 08/2006 TO EXT.P1 MEMO OF CHARGES. EXT.R1F COPY OF THE LETTER DATED 13 08/2005. EXT.R1G COPY OF THE MINUTES OF THE GENERAL BODY MEETING DATED 20 08/2005. EXT.R1H COPY OF THE CHARTER OF DEMANDS (EXT.A3 BEFORE THE ARBITRATION COURT). EXT.R1I COPY OF THE MINUTES OF THE MEETING DATED 08 10/2005 (EXT.A5 BEFORE THE ARBITRATION COURT). EXT.R1J COPY OF THE NOTICE DATED 09 02/2006 (EXT.A5(B) BEFORE THE ARBITRATION COURT). EXT.R1K COPY OF THE INSPECTION REPORT OF THE RESERVE BANK OF INDIA. EXT.R1L COPY OF THE SECTION 6 ENQUIRY REPORT PREPARED BY THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THIRUVALLA. EXT.R1M COPY OF THE COMPLAINT DATED 19 02/2007 SUBMITTED BY ADVOCATE OF RESPONDENT NO.1. EXT.R1N COPY OF THE NOTICE DATED 22 06/2007. EXT.R1O COPY OF THE REPRESENTATION DATED 26 06/2007. EXT.R1P COPY OF THE MEDICAL CERTIFICATE DATED 26 06/2007. EXT.R1Q COPY OF THE COVERING LETTER DATED 24 08/2007 BY WHICH EXT.P12 ORDER WAS SERVED ON ME. EXT.R1R COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.VC 6/09/PTA DATED 10 08/2009. EXT.R1S COPY OF THE JUDGMENT DATED 18 09/2008 IN W.P.(C) NO. 4826/2008 (Y) PASSED BY THIS HONOURABLE COURT. 3/-.......... OP(C).No. 2058 of 2011 (O) EXT.R1T COPY OF THE COUNTER AFFIDAVIT DATED 29 05/2008 (PRESENTED ON 04/06/2008) BY THE PETITIONER IN OF IN W.P.(C) NO. 4826/2008. EXT.R1U COPY OF THE ANNUAL REPORT FOR THE YEAR 2005 06 AND THE AUDIT CERTIFICATE DATED 27 09/2006 OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (AUDIT), PATHANAMTHITTA. EXT.R1V COPY OF THE STATEMENT HAVING 1 PAGES TITLED AS THE ''FACTS STATED IN THE CHARTER OF DEMANDS AND EVIDENCE FOR THE SAME'' HANDED OVER TO THE PRESIDENT OF THE BANK. EXT.R1W COPY OF THE AFFIDAVIT SUBMITTED ON BEHALF OF THE MANAGEMENT BEFORE THE LEARNED ARBITRATOR. EXT.R1X COPY OF THE PETITION SUBMITTED ON BEHALF OF THE MANAGEMENT BEFORE THE LEARNED ARBITRATOR. EXT.R1Y COPY OF THE WITNESS SCHEDULES SUBMITTED ON BEHALF OF THE MANAGEMENT BEFORE THE LEARNED ARBITRATOR. EXT.R1Z COPY OF THE DEPOSITIONS OF WITNESSES WHO DEPOSED ABOUT M5 DOCUMENT BEFORE THE CO-OPERATIVE ARBITRATION COURT. EXT.R1AA COPY OF THE 50TH ANNUAL REPORT AND ACCOUNTS OF THIRUVALLA EAST CO-OPERATIVE BANK LTD. NO.3260 ALONGWITH BUDGET FOR THE YEAR 2007 08. ANNEXURE 1 COPY OF THE JUDGMENT IN W.P.(C) NO. 4826/2008 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A1. ANNEXURE 2 COPY OF THE NOTICE DATED 13 08/2005 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A2. ANNEXURE 3 COPY OF THE CHARTER OF DEMANDS PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A3. ANNEXURE 4 COPY OF THE INSPECTION REPORT OF RBI PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A4. 4/-........... OP(C).No. 2058 of 2011 (O) ANNEXURE 5 COPY OF THE MINUTES OF GENERAL BODY MEETING OF EMPLOYEES PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A5A. ANNEXURE 6 COPY OF THE MINUTES OF GENERAL BODY MEETING OF EMPLOYEES PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A5B. ANNEXURE 7 COPY OF THE MINUTES OF GENERAL BODY MEETING OF EMPLOYEES PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A5C. ANNEXURE 8 COPY OF THE SUSPENSION ORDER DATED 02 03/2006 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A6. ANNEXURE 9 COPY OF THE RESOLUTION NO.886 DATED 25 02/2006 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A7. ANNEXURE 1 COPY OF THE INVITATION LETTER PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A8. ANNEXURE 1 COPY OF THE REPRESENTATION TO THE JOINT REGISTRAR DATED 11 07/2006 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A9. ANNEXURE 1 COPY OF THE MEMO CHARGES DATED 02 08/2006 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A10. ANNEXURE 1 COPY OF THE APPLICATION DATED 24 04/2006 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A11. ANNEXURE 1 COPY OF THE IDENTITY CARD PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A12. ANNEXURE 1 COPY OF THE JOINT REGISTRAR PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A13. 5/-.......... OP(C).No. 2058 of 2011 (O) ANNEXURE 1 COPY OF THE REPLYOF THE PLAINTIFF DATED 14 08/2006 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A14. ANNEXURE 1 COPY OF THE MEMO CHARGES DATED 01 09/2006 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A15. ANNEXURE 1 COPY OF THE SUB RULES OF EMPLOYEES HOUSING LOAN SCHEME PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A16. ANNEXURE 1 COPY OF THE DEMAND DRAFT PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A17A. ANNEXURE 2 COPY OF THE LOAN CLOSURE CERTIFICATE. ANNEXURE 2 COPY OF THE DOCUMENT PREPARED BY THE PLAINTIFF PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A18A. ANNEXURE 2 COPY OF THE COMPLAINT SUBMITTED TO THE RBI PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A18B. ANNEXURE 2 COPY OF THE ORDER DATED 22 01/2007 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A19. ANNEXURE 2 COPY OF THE REPRESENTATION DATED 19 02/2007 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A20. ANNEXURE 2 COPY OF THE REPORT OF THE ASSISTANT REGISTRAR DATED 06 02/2007 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A21. ANNEXURE 2 COPY OF THE DIRECTION OF JOINT REGISTRAR DATED 20 02/2007 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A22. ANNEXURE 2 COPY OF THE SHOW CAUSE NOTICE DATED 20 02/2007 OF THE JR PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A23. 6/-.......... OP(C).No. 2058 of 2011 (O) ANNEXURE 2 COPY OF THE LETTER DATED 26 02/2007 PRODUCED0 BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A24. ANNEXURE 2 COPY OF THE ENQUIRY REPORT DATED 24 02/2007 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A25. ANNEXURE 3 COPY OF THE REPRESENTATION DATED 03 03/2007 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A26. ANNEXURE 3 COPY OF THE POSTAL DELIVERY CERTIFICATE PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A27. ANNEXURE 3 COPY OF THE ORDER OF DISMISSAL DATED 02 03/2007 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A28. ANNEXURE 3 COPY OF THE ORDER OF THE JOINT REGISTRAR DATED 16 04/2007 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A29. ANNEXURE 3 COPY OF THE JUDGMENT IN W.P.(C) NO. 12420/2007 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A30. ANNEXURE 3 COPY OF THE NOTICE DATED 22 06/2007 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A31. ANNEXURE 3 COPY OF THE REQUEST DATED 26 06/2007 PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A32. ANNEXURE 3 COPY OF THE ORDER OF THE APPELLATEAUTHORITY PRODUCED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM MARKED AS EXT.A33. //TRUE COPY// P.A. TO JUDGE. rs. A.M.SHAFFIQUE, J * * * * * * * * * * * * * OP [C] No.2058 of 2011 and WPC No.15295 of 2011 ---------------------------------------- Dated this the 29th day of July 2013

JUDGMENT

In OP No.2058 of 2011 the petitioner challenges Exts.P15 and P17. Ext.P15 is the award passed by the Co- operative Arbitration Court and Ext P17 is the appellate order of the Co-operative Tribunal.

2. The facts leading to the above original petition disclose that, disciplinary proceedings were initiated against the first respondent alleging certain misconducts. An enquiry was conducted by the petitioner society and the first respondent was dismissed from service. He challenged the order of dismissal before the appellate authority and the same came to be confirmed. The first respondent thereafter approached the Arbitration court by raising a dispute. The Arbitration court found that the disciplinary proceedings were not conducted observing the principles of natural O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

2. justice and that the allegations were baseless. Hence the order of the disciplinary authority and the appellate authority was set aside as per Ext. P15. The petitioner bank filed an appeal before the Cooperative Tribunal which again came to be dismissed, as per Ext.P17, against which the present writ petition is filed.

3. W.P.C.No.15295 of 2011 is filed by the first respondent in O.P.No.2058 of 2011 for a direction to implement the orders passed by the Arbitration Court and the Appellate Tribunal. The petitioner also seeks to reinstate him in service in the appropriate post in accordance with his seniority and to pay the entire back wages.

4. Since common questions arise for consideration in the above petitions the same are decided together. The documents and parties referred are as stated in O.P.(c) No.2058/2011, unless otherwise stated.

5. The main contention raised by the bank is regarding the validity of the orders passed by the Arbitration O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

3. court as well as the Appellate Tribunal. Ext.P1 is the first charge memo. The allegation of misconduct against the first respondent is that while he was working in the Eraviperoor branch of the bank as senior clerk, violating the rules of the bank, the first respondent has failed to maintain secrecy in respect of the documents in his custody and had misused such secret information of the bank and made allegations against the bank which created loss of trust among the public at large. It is alleged that he had collected the information and data by misusing his employment as a senior clerk in the bank. Another allegation is that the first respondent misusing his official position collected information regarding the profit and loss of the bank as on 31/03/2006 and prepared a profit and loss account by himself, by publicising that it is the actual profit and loss account of the bank and that the bank is at a loss of Rs.93.72 lakhs. He had also published such a document by convening general meetings among the public and O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

4. especially the customers of the bank which resulted in the loss of trust, the customers had with the bank. Another allegation against the petitioner is that on 03/12/2005, while a joint meeting of the managing committee and employees were in progress, the 1st respondent forcibly entered the dias and delivered a speech making allegations against the bank and exhibiting the balance sheet prepared by himself. Another allegation is that on 17/02/2006 the first respondent while addressing a dharna in front of the head office relied upon such documents and created fear in the mind of the customers of the bank by giving false details of the accounts. Yet another allegation is that on 24/02/2006 and 25/2/2006, the first respondent in the guise of being a member of certain organizations conducted a demonstration in the front of several branches of the bank and made public speeches against the interest of the bank. It is also alleged that the first respondent made false complaints against the office bearers and has sent complaints in false names. A O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

5. second memo of charges was also issued to the first respondent, alleging that he had taken a loan from the bank for house construction and he has not constructed the house.

6. These allegations, according to the bank, were clear misconduct on the part of the first respondent and hence an inquiry was conducted. Ext. P2 is the enquiry report. The enquiry officer found that charges 1 to 6 in the first charge memo and all other charges in the second charge memo levelled against the delinquent were proved. A copy of the report was forwarded to the first respondent and thereafter he was issued with the notice for hearing. The petitioner did not appear for hearing nor did he submit any explanation and therefore a decision was taken to dismiss him from service. Ext.P6 is the intimation issued to the first respondent dismissing him from service. The first respondent thereafter sent a reply stating that he received the notice only on 03/03/2007 after the date proposed for O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

6. hearing. When an enquiry was conducted with the postal department it was found that the said notice was taken to the first respondent's house by the postal department on 24/02/2007, but since he was not present, necessary intimation was given. It is also stated that the first respondent did not collect the said letter till 03/03/2007. The first respondent filed an appeal before the board of directors alleging violation of principles of natural justice. It is contended that though notice of hearing was served on the first respondent he did not appear on the hearing date. He was given another opportunity, on which date also he did not appear and therefore the Board of Directors, having considered the appeal on merits, rejected the same. It is thereafter that the first respondent preferred the arbitration case before the Co-operative Arbitration Court.

7. The Arbitration court found that the disciplinary proceedings were vitiated by violation of principles of natural justice. Though the petitioner preferred an appeal O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

7. the same also came to be dismissed by the Appellate Tribunal. It is the contention of the petitioner that instead of relegating the matter back to the disciplinary authority the Appellate Tribunal rejected the appeal thereby coming to a conclusion that the employee had the right to demonstrate and justified the actions of the delinquent officer.

8. The main contention raised by the petitioner is that, the Arbitration Court as well as the Appellate Tribunal had no jurisdiction to entertain the matter in view of the specific provision made under the Cooperative Societies Act (hereinafter referred to as 'the Act'). The argument is that the decision of the disciplinary authority as well as the appellate authority cannot be called in question under Section 69 of the Act. It is also the contention of the petitioner that the enquiry was conducted after complying with all the formalities as provided under the Rules and therefore the authorities were not justified in setting aside their disciplinary enquiry alleging violation of principles of O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

8. natural justice. The authorities also did not consider whether the entire proceedings against the first respondent was in accordance with the requirements under rule 198 of the Kerala Co-operative Societies Rules (hereinafter referred to as 'the Rules') and observing the principles of natural justice. It is further contended that even assuming that there is non- observance of the principles of natural justice they should have called upon the disciplinary authority to pass fresh orders after complying with the principles of natural justice.

9. Counter affidavit is filed by the first respondent inter alia contending that the Arbitration court as well as the Tribunal had come to a conclusion that the proceedings were vitiated by the principles of natural justice. It is contended that the General Manager of the bank has no right in law to institute the writ petition as the Administrator is in charge of the administration of the bank under Section 33 of the Act. It is also contended that all the charges levelled against the first respondent was absolutely vague O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

9. and not supported by any materials, that Ext.P1 memo of charges was not accompanied by any statement of allegations, that he has only acted in accordance with the principles applicable to the employees of the bank and he being an office bearer of an association, is entitled to take up issues relating to the bank and has only addressed the employees of the bank in the meetings of such employees. According to him he had not acted against the interest of the bank in any manner. He supports the view taken by the Arbitration court as well as the Tribunal.

10. The first respondent filed W.P.C.No.15295 of 2011 seeking to reinstate him in service and to pay him the entire back wages in accordance with settled seniority by implementing the award passed by the Arbitration Court and confirmed in appeal by the Tribunal. Exts.P4 and P9 are the orders sought to be implemented which are impugned in O.P.(C) No.2058 of 2011. O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

10. 11. The question to be considered in the above writ petitions is the correctness of Exts.P15 and P17 orders passed by the Arbitration court and the Appellate Tribunal, respectively.

12. Heard the learned senior counsel appearing on behalf of the bank and the learned counsel appearing on behalf of the delinquent officer.

13. It is not in dispute that the petitioner bank had dismissed the first respondent from service after giving an opportunity to contest the allegations raised in the memo of charges, by conducting an enquiry in terms of Rule 198 of the Rules. The Arbitration Court as well as the Appellate Tribunal formed an opinion that there is violation of principles of natural justice in the matter relating to disciplinary proceedings. The primary finding of the Arbitration Court was that a copy of the enquiry report was not given to the delinquent before imposing the punishment and therefore the proceedings would be defective. It was O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

11. found that the enquiry report was sent to the first respondent on 26/02/2007, which was served on him only on 03/03/2007. A notice for hearing was sent on 26/02/2007 fixing the date of hearing as on 01/03/2007. The Arbitration Court therefore found that when the first respondent was not given a copy of the enquiry report and he was denied a legitimate right to submit his objection on the enquiry report before the disciplinary committee. In that view of the matter, the Arbitration Court found that there was denial of natural justice. It is also found that there was non compliance of Rule 198(2) of the Rules which clearly stipulates that no punishment shall be awarded to an employee unless he has been informed in writing, the grounds on which action is proposed to be taken. Further the Arbitration Court also found that the charges levelled against the first respondent was not proper and valid and findings of the enquiry officer on the same are perverse. It is also found that the evidence given by witnesses before the domestic enquiry and before O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

12. the Arbitration Court do not support the charges leveled against the delinquent officer.

14. The Appellate Tribunal observed that the first respondent was selected as the convener of the Co- ordination forum on 20/08/2005 and it was decided to submit a charter of demands signed by the majority of the employees before the appellant highlighting the critical financial position of the bank and it is pursuant to the same that the delinquent had acted accordingly. It is found that it was on account of the strike and propaganda made by the employees of the bank that the first respondent was dismissed from service. After discussing the evidence made available on record, the Appellate Tribunal found that the documents produced in the domestic enquiry was not a profit and loss account or a balance sheet and therefore there was no basis for taking any action against the delinquent officer. The Tribunal also highlights the social system which permits strike and other methods of O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

13. demonstration and finally concludes that there is no basis for the charges levelled and it was also in violation of the principles of natural justice. The Tribunal found that the petitioner had not succeeded in proving the charges and therefore the disciplinary proceedings were liable to be set aside and there is no reason to interfere with the findings of the Arbitration Court.

15. The learned senior counsel appearing for the petitioner would argue that the maintainability of the arbitration proceedings was not considered by the Arbitration court. Reliance is placed on Sections 69 and 80 of the Act, Rule 198(4), 198(5) of the Rules. It is further contended that the memo of charges disclose specific charges against the 1st respondent and the contrary findings of the Arbitration court and the Appellate authority was erroneous.

16. It was further argued that the authorities failed to consider the matter in the proper perspective in so far as the O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

14. evaluation of the evidence was done by the authorities which they were not expected. Once the enquiry officer had found the delinquent guilty of the charges, in the absence of any factors to show that the enquiry was not conducted properly, no interference was possible. It is further contended that the authorities had wrongly come to the conclusion that the charge is very vague and that the delinquent was only protesting against the actions of the bank which cannot be termed as misconduct.

17. On the other hand, learned counsel appearing for the first respondent would argue that none of the grounds mentioned in the memo of charges would enable the bank to take disciplinary proceedings against the first respondent. It is argued that the entire charges levelled against him could not have been the subject matter of an inquiry. It is argued that the first respondent was the convener of a meeting and he had only participated in a strike as per a common decision among the employees and if at all he had spoken O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

15. something against the manner in which the bank was functioning it was only to appraise the employees of the Bank and as a matter of caution to all concerned.

18. The first question that is to be considered is the maintainability of the said proceedings which resulted in Exts.P15 and P17. It is argued that section 69(1)(h) of the Act does not give any power to the Arbitration court to decide a dispute relating to disciplinary proceedings taken by the management against an employee. Reference is made to Section 80(9) which provides that suspension and disciplinary action in relation to an officer, employee or servant of a co-operative society shall be in such manner as may be prescribed. It is argued that when the procedure has been prescribed under Rule 198 of the Rules and when detailed procedure is provided under Rule 198 in terms of Section 80(9) it is not open for the Arbitration court, to sit in judgment against the orders passed by the Bank as per rules. O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

16. 19. In Thodupuzha Taluk General Marketing Co op. Society v. Michael Sebastian (2010 (1) KLT

938) a Division Bench of this Court held as under: "In view of sub-ss.(1)(c) and (2)(d), it is clear that any dispute arising in connection with the employment of officers and servants of a co- operative society is a dispute, which can be resolved under S.69(1). But, the office establishment of a co-operative society is an industry, as defined under S.2(j) of the Industrial Disputes Act. So, the dispute regarding denial of employment will be an industrial dispute, as defined under S.2(k) of the Industrial Disputes Act. The concerned worker can raise it as an industrial dispute under S.2A thereof. If S.69 of the Kerala Co-operative Societies Act was passed with the assent of the President, it may have overriding effect on central enactments, like the Industrial Disputes Act.

4. But, the learned Government Pleader told us that the amendment to S.69 of the Kerala Co- operative Societies Act was notified without obtaining the assent of the President, as O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

17. contemplated under Art.254(2) of the Constitution of India. If that be so, the amendment to S.69 of the Kerala Co-operative Societies Act cannot have the effect of overriding the provisions of the Industrial Disputes Act. Therefore, the Labour Court and the Co-operative Arbitration Court have concurrent jurisdiction to deal with the industrial disputes. In view of the above position, the challenge against Ext.P1 raised by the appellant, on the ground of lack of jurisdiction has been rightly repelled by the learned Single Judge. So, the Writ Appeal fails and it is accordingly, dismissed.

20. In Cheranallur Service Co op. Bank Ltd. v. State of Kerala (2012 (4) KLT SN 2 (C.No.

2) held as under: "xxxxx Sub-section (1) of section 70 of the Act stipulates that the Government shall constitute such number of Co-operative Arbitration Courts, as are necessary to exercise the powers and discharge the functions conferred on it. Sub-section (2) stipulates that the qualifications, term salary and allowances and other conditions of service of the person to be appointed as the Co-operative O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

18. Arbitration Court shall be such, as may be decided by the Government from time to time. Sub-section (3) stipulates that the Government shall make rules for regulating the procedure and disposal of business of the Co-operative Arbitration Court. Sub- section (4) stipulates that the Registrar or the Government shall lend the services of such number of officers and employees as may be necessary, to assist the Co-operative Arbitration Court. Section 70B of the Act stipulates that on the constitution of a Co- operative Arbitration Court, every dispute pending before the Registrar or any person invested with the power to dispose of the dispute by the Government or the arbitrator appointed by the Registrar, in respect of non-monetary disputes, relating to the local area of jurisdiction of the Arbitration Court, shall be transferred to such Arbitration Court and the Court shall dispose of the same as if it were a dispute referred to it under section 69. It is evident from provisions contained in sections 70A and 70B of the Act that the Co- operative Arbitration Court is not a forum subordinate to the Registrar. The contention raised by the petitioner that in view of Ext.P10 circular O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

19. issued by the Registrar of Co- operative Societies, the Co-operative Arbitration Court must be deemed to be a forum under the Registrar, does not merit acceptance. All that Ext.P10 circular stipulates is that non-monetary disputes have to be raised before the Co-operative Arbitration Court as per section 70A of the Act and rule 67B of the Kerala Co-operative Societies Rules, 1969 as amended. The jurisdiction of the Co-operative Arbitration Court is conferred by section 69(2) of the Act and not by Ext.P10 circular. Ext.P10 circular can only be said to be an information to the public that non- monetary disputes have to be raised before the Co- operative Arbitration Court. Likewise, I also find no merit in the contention that as section 70 of the Act prescribes a time limit of one year for passing the award, the Co-operative Arbitration Court ceases to be a forum, which is independent. If that be so, the Rent Control Court exercising jurisdiction under the Kerala Buildings (Lease and Rent Control) Act, 1965 should be held to be a forum which is not an independent forum because it is stipulated therein that the rent control petition shall be disposed of within four months. Interpreting the provisions O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

20. contained in the Rent Control Act, this Court has held that the stipulation regarding the time limit for disposal of rent control petitions is not mandatory. The same principle, in my opinion, applies in the case of the section 70 of the Act also. Therefore, for that reason also, I am of the opinion that no interference is called for with the impugned orders. I accordingly hold that the the preliminary objection raised by the petitioner was rightly repelled by the Co-operative Arbitration Court and the Kerala Co- operative Tribunal. Consequently, the writ petition fails and is dismissed in limine." 21. Further in Edava Service Co-operative Bank Ltd. v. Co operative Arbitration Court [2008(3) KLT 780.a learned Single Judge of this Court held that the legislative mandate under Section 69(2) of the Act is to bring all disputes in connection with employment in a Co-operative Society under the purview of arbitration to the exclusion of other courts and authorities. But that was a case relating to inter se seniority which is definitely coming within the purview of Section 69(2)(d), being a deeming provision the O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

21. learned Single Judge held that the limits of deeming provision have to be determined and within those limits and a fiction cannot be extended beyond its legitimate field. It must be allowed full operation within its intended sphere.

22. The argument of the learned senior counsel for the petitioner is that since the disciplinary action is to be taken as per Rule 198 of the Rules there is an implied bar of jurisdiction for the higher authorities namely the Arbitration Court and the Appellate Authority to consider any order passed by the disciplinary authority as well as the appellate authority under Rule 198. I do not think so. Section 80 of the Act read with Rule 198 is only the procedure prescribed for conducting an enquiry and the authority who has to conduct the disciplinary proceedings. An appeal is also provided under the Rules before the Board of Directors. These proceedings are only the opinion expressed by the management in regard to the disciplinary proceedings against an employee. Section 69 of the Act relates to O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

22. adjudication of "dispute" between various categories of persons which includes a dispute between the employer society and an employee. Therefore, a dispute can arise only after completion of the disciplinary proceedings. If the disciplinary proceedings culminates in an order against the employee, that could give rise to a dispute as defined under the Act. The judgment of this Court in Thodupuzha Taluk General Marketing Co op. Society (Supra) covers the point.

23. Therefore I am of the view that taking disciplinary action under Rule 198 shall not preclude the delinquent officer who is found guilty to raise a dispute under Section 69(2)(d) of the Act. And therefore the proceedings before the Arbitration Court as well as the appellate tribunal were justified.

24. Another contention is that the Arbitration Court should have decided the maintainability as a preliminary issue. In The Chala Beedi Workers Industrial Co-op. Society Ltd. v. Labour Court [2003(3) Kerala 561], the O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

23. learned Single Judge of this Court held that the Tribunals adjudicating labour disputes have to proceed to adjudicate on all the issues at the same time. Only when it is found absolutely essential to decide any question as a preliminary issue, the question of deciding the same as a preliminary issue arises. The very concept of adjudicatory measures like the Tribunals is to decide the cases without any delay and undue hardship to the parties to the lis. Therefore, it is always necessary in the interest of justice to decide and pass final orders on all the issues at the same time. The learned Single Judge also relied upon the judgment of the Supreme Court in Maheswari v Delhi Administration (1983 (4) SCC 293).

25. The next issue is relating to the finding regarding violation of Principles of natural justice. The facts as disclosed would show that the first respondent received the enquiry report only on 03/03/2007. According to the petitioner the enquiry report was received by them on O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

24. 24/02/2007. The enquiry report was forwarded to the delinquent on 26/02/2007. The petitioner had adduced evidence stating that the notice for personal hearing was sent by registered post on 26/02/2007 fixing the date of hearing on 01/03/2007. Ext.P27 is the postal delivery certificate issued by the Postmaster which would show that the notice was signed by the first respondent only on 03/03/2007. The order of dismissal was passed on 02/03/2007. It is on this basis that the Arbitration Court came to a finding that there was violation of Rule 198(2) of the Rules. The Supreme Court in Managing Director, ECIL, Hyderabad and Others v. B.Karunakar and Others [1993(4) SCC 727], held as under in Paragraph 29 : "29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

25. to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice." The above factual circumstances clearly leads to the fact that the finding regarding violation of principles of natural justice is not out of place.

26. The next contention urged by the petitioner is with reference to the findings of the Arbitration Court and the Tribunal. It is argued that the authorities have come to a wrong finding regarding the question as to whether the charges were vague or not. It is their contention that though there were several charges atleast two of the charges were very specific and had given sufficient materials to enable the delinquent officer to meet the charges. That apart, he had explained all the charges with considerable details which O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

26. would show that the charges were very specific and no prejudice had been caused to the respondent.

27. As far as the Arbitration Court was concerned, it considered each and every charge and found that none of the charges were proved. It also found that most of the charges were vague and cannot be the basis of an enquiry and therefore the enquiry was set aside. The appellate tribunal also came to the same opinion and further found that most of the allegations were in respect of the speeches made by the respondent during demonstration which is a fundamental right available to a citizen and that right cannot be denied for the mere reason that he is the employee of the bank.

28. It is further argued that if the authorities were of the opinion that there is violation of natural justice, they should have relegated the matter to the disciplinary authority to comply with the procedure and then pass appropriate orders. It is argued that there is no contention O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

27. regarding violation of natural justice at the time when the enquiry was conducted. The only reason for alleging violation of natural justice is for not providing the respondent with copy of the enquiry report and passing an order prior to the date on which he received the enquiry report. This submission definitely carries weight in so far as if the Arbitration Court had found violation of principles of natural justice, normally the matter should be remitted back to the disciplinary authority to comply with the said procedure and to pass orders.

29. True that the Arbitration Court or the appellate authority did not relegate the matter to the disciplinary authority. But they have indicated that there is no basis for the charges levelled against the respondent. On a factual consideration of the available materials, the authorities have found that none of the charges levelled against the respondent was enough to take disciplinary action against the respondent. The charges were either vague, flimsy or O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

28. not proved. When such being the factual consideration by the authorities below, the question is whether this Court can interfere in the matter by way of judicial review. When two authorities have concurrently found on appreciation of the evidence on record that the allegations against the respondent will not constitute misconduct in the absence of any material to indicate that the said finding is perverse, I do not think that this Court will be justified in interfering with the said finding of fact. Let me now consider the case law relied upon by the learned counsel for the 1st respondent. i) Radhey Shyam v. Chhabi Nath [2009(5) SCC 616]. This judgment is relied upon to highlight the scope of interference by the courts in a matter under Article 227 of the Constitution of India. It is held by the Supreme Court that orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

29. ii) Another judgment relied upon is Abdul Razak v. Mangesh Rajaram Wagle [2010(2) SCC 432.in which it is held that for exercising a jurisdiction under Article 226 the High Court has to consider whether a jurisdictional error has occurred or whether there was a substantial failure of justice or manifest injustice was caused to the plaintiffs. Iii) Sawai Singh v. State of Rajasthan [1986 (3) SCC 454]. This judgment is relied upon to contend that if the charges are vague and it is difficult for the the delinquent to meet the charges fairly the evidence adduced becomes perfunctory and will not bring home the guilt of the accused. If the charges are vague even if there is a finding by the enquiry officer the delinquent cannot be found guilty. It is also found that the application of principles of natural justice must always be confirmed with the scheme of the Act. iv) In Bharat Forge Co.Ltd. v. A.B.Zodge [(1996) 4 SCC 374], the Supreme Court found that if the finding in the enquiry report is perverse opportunity has to be given for O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

30. adducing evidence and the Tribunal is entitled to lead evidence in the merits of the dispute itself. It is further held that a domestic enquiry may be vitiated either for non- compliance of rules of justice or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. v) Amrit Vanaspati Co.Ltd. v. Khem Chand [2006(6) SCC 325]. This is also a case which highlights the jurisdictional powers of the High Court in dealing with disciplinary proceedings. It is held that the High Court cannot interfere with the factual findings of the Labour Court which are based on appreciation of facts adduced before it by leading evidence. It is also held that High court cannot interfere with the well considered order passed by the Labour Court confirming the order of dismissal. Vi) Maheswari v Delhi Administration [1983(4) SCC 293]. This judgment of the Supreme Court also O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

31. highlights the scope of interference by High Court in respect of findings based on proper appreciable evidence. The three Judges Bench held that the High Court under Article 226 is not justified in disturbing the finding of fact and taking a different view. Vii) Sree Ganapathi Bus Service v. Presiding Officer, Labour Court (2000(2) SCC 602). This judgment is relied upon for the proposition that when the domestic enquiry is upheld by the Labour Court there is no question of granting opportunity to give evidence in the matter. Reference is made to judgment in Sankar Chakravarthi v. Britannia Biscuit Company [1979(3) SCC 371.viii) In Rajagopal B v. Jomy Xavier [2010(2) KHC 19.(DB)], the Division Bench of this Court considered the scope of judicial review in respect of matters arising under the orders passed by lower authorities like Labour Court or the Industrial Tribunal. It is observed that the doctrine of ultra vires is the basis of judicial review and if the orders are O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

32. passed by the Labour Courts/Industrial Tribunals, the High Court cannot sit as an appellate authority over the said decisions. If the decision is within jurisdiction it is no part of business of this Court to interfere with the decision of the Labour Court/Tribunal according to its opinion regarding the propriety of the punishment. If, after following a proper procedure the Tribunal arrives at a conclusion which is patently perverse or one which no man in his senses would arrive at, then also it can be described that the Tribunal has stayed out of jurisdiction as one could say that the power given to the Tribunal was not to arrive at such a perverse decision. Therefore, perversity in the decision making process or the decision as the case may be is the factor to be considered before exercising jurisdiction against orders passed by the lower authorities. ix) In Viswamithran v. Manager, S.N.College & Ors. [1997(1) KLJ 147], a Division Bench of this Court held at paragraph 13 as under: O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

33. "13. Therefore, we are of the opinion that the misconducts as charge-sheeted were not proved. In fact, all the witnesses examined in support of the charges categorically stated that the petitioner did not collect the amounts. Therefore, misconducts as alleged in the charge sheet were not proved and hence disciplinary proceedings cannot be sustained. It is argued by the learned advocate for the respondents that once misconduct is proved and there is some evidence the Court should not interfere in such punishment. In the decision reported in State of UI.P. And others v. Ashok Kumar Singh and another [(1996) 1 SCC 302], it was held by the Supreme Court that when the High Court concurred with the findings of the Service Tribunal the Court should not have interfered with the order of removal passed after departmental enquiry and confirmed by the tribunal. Here, we are of the opinion that the misconducts alleged against the employee were not at all proved. We have also found that the charges were vague and not specific and mandatory provision that statement of allegations to be attached with the memo of charges was not complied with. It is well O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

34. settled that the charges should dbe specific, precise and intelligible. It should not be vague and clear facts should be set out. Management cannot escape the obligation on the contention that the delinquent knows all about the charge. It should not be left to the employees to find out or imagine what are the exact charges levelled against them. Obligation to inform the delinquent specific charges is part of the 'Audi Alteram Partem' rule that 'no man should be condemned without being heard'. According to Lord Denning in R. v. Life Assurance Unit Trust R.O.L 199.Q,B

17) "If the right to be heard is to be a real right which is worth anything, it must carry with it, a right in the accused man to know the case which is made against him." Here charge sheet was not specific and statement of allegations as provided in the rules were not served on him. Further, the misconduct in the charge sheet and misconducts sought to be proved were also different. Nobody can dispute the proposition that an employee charged with one misconduct cannot be punished for another misconduct even if that misconduct is proved in the course of enquiry proceedings. The charges as alleged were not O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

35. proved and findings to the contrary by the enquiry officer is based on no evidence. Therefore, the entire disciplinary proceedings are vitiated." x) Management of the Northern Railway Co- operative Credit Society Ltd. v. Industrial Tribunal (AIR 196.SC 1182."12. The facts of this case, as enumerated by us above, show that the charge-sheet which was served on Kanraj was in fact very vague and did not contain any such details as could enable him to give any explanation. Charge No. 2 was the only charge in respect of which full details were mentioned. That charge was of disobedience of orders in not attending for medical examination in accordance with Honorary Secretary's letter of l9th April, 1956, from which an inference was drawn that Kanraj was not prepared to face the medical examination because he had pretended to be sick. So far as this charge is concerned, there is nothing to indicate that there were any rules of the Society under which Kanraj was required to obey the orders given by the Honorary Secretary to appear O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

36. for medical examination by the particular doctor nominated by him. In the absence of any rules, Kanraj could very well feel justified in relying on certificates obtained by him from a registered medical practitioner even though he might only be a Vaid practising 'Ayurvedic medicine. The charge of disobedience of orders, which were not enforceable under any rule could neither be the basis of any order of dismissal or removal, nor could it lead to any inference that Kanraj had merely been pretending to be sick.

13. As regards the remaining four charges, they were clearly very vague. The first charge, in general terms, stated that Kanraj had instigated and conspired to paralyse the working of the Society by collectively submitting sickness certificates. The charge did not mention whom he had instigated or with whom he had conspired, nor did it indicate how this conspiracy was being inferred. Similarly, the third charge of taking active part in the issue and distribution of certain leaflets against the management of the Society did not at all indicate what those leaflets were and what part Kanraj had taken in the issue and distribution of O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

37. those leaflets. The fourth charge of carrying vilifying propaganda in connection with the elections of the Society at the Annual General Meeting on 28th April, 1956, was again similarly vague as there was on specification as to the persons with whom this propaganda was carried on by Kanraj and where and when it was done. In the same way the last and the fifth charge of instigating the depositors to withdraw their deposits from the Society was again very Vague as there was no mention as to which depositors had been instigated and when they were instigated. In these circumstances, Kanraj was fully justified in pleading that the charges were vague and he was unable to show cause against the charges served on him.

14. It is true that the Tribunal correctly held that Kanraj was not entitled to be represented by a stranger to the Society at the enquiry proposed to be held against him. In fact, the correspondence which passed between Kanraj and the Society shows that Kanraj was taking a very unreasonable and undesirable attitude in this matter and his conduct in persistently demanding representation O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

38. by a stranger and on that account refusing to participate in the enquiry deserves to be condemned. That circumstance however will not make the enquiry valid, unless it be held that an adequate opportunity was given to Kanraj to meet the charges framed against him. The charges, as we have indicated above which were served on Kanraj were very vague and he had no opportunity to give a reply to them. The material which was available in support of these charges was also never disclosed to him. The mere fact that Kanraj did not appear on the date fixed for the enquiry will not, in these circumstances, satisfy the requirement of the principles of natural justice that he should have been told of the details of the charges and the material available in support of these charges should have been disclosed to him. It seems to us that it was in view of this omission that the subsequent notice was given by the Vice- Chairman to Kanraj to show cause when the Vice- Chairman had formed his provisional opinion on the basis of the report of the Committee of Enquiry that the changes were proved and Kanraj should be removed from service. This subsequent show O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

39. cause notice by the Vice Chairman was, no doubt not required by any rule on law analogous to Art 311 of the Constitution but in the instant case this subsequent opportunity which was offered. by the Vice-Chairman was the only opportunity which could have satisfied the requirement of principles of natural justice, because in the earlier enquiry Kanraj had already been prejudiced by the vagueness of the charges and by the omission to disclose to him the material in support of those charges. In the enquiry, no adequate opportunity having been given to Kanraj the Tribunal was perfectly justified in setting aside the order of removal based on the report of the Committee of Enquiry, and it appears that it was in view of the aspect explained by us above that the Tribunal proceeded to lay down that it was open to the Society to institute a fresh enquiry and give an opportunity to Kanraj to show cause after supplying copies of necessary documents to him as claimed by him when the notice, dated 13th September 1956 was issued to him. Consequently, we consider that the order passed by the Tribunal was fully justified." O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

40. xi) In Surath Chandra Chakravarty v. State of W.B. (AIR 197.SUPREME COURT

752) it is held that "We are unable to agree that the details without which a delinquent servant cannot properly defend himself are a matter of evidence. In this connection reference may be made to Fundamental R. 55 which provides, inter alia, that without prejudice to the provisions of the Public Servants Enquiry Act 1850 no order of dismissal, removal or reduction shall be passed on a member of service unless he is informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. This Rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

41. for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him. By way of illustration one of the grievances of the appellant contained in his letter dated March 24, 1950, to the Enquiry Officer may be mentioned. This is what he said though the language employed is partly obscure and unhappy: "Regarding the first charge I beg to submit that the allegation is vague. In the charge it has not been specifically stated as to where, when and before whom I circulated false rumours, regarding retrenchment policy of the Government and thereby spread insubordination. In fact if one goes through the statements of P. Ws. made to D. F. S. as submitted before my suspicion, it will appear that no specific case could have made with all material particular as to date, time and person. Having been able to take deposition and to conduct enquiry keeping me in dark and finally put me out of office. Sri S. Bose was able to win over O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

42. the witnesses and was able to shape his case to suit his Purpose." Now in the present case each charge was so bare that it was not capable of being intelligently understood and was not sufficiently definite to furnish materials to the appellant to defend himself. It is precisely for this reason that Fundamental Rule 55 provides, as stated before, that the charge should be accompanied by a statement of allegations. The whole object of furnishing the statement of allegations is to give all the necessary particulars and details which would satisfy the requirement of giving a reasonable opportunity to put up defence. The appellant repeatedly and at every stage brought it to the notice of the authorities concerned that he had not been supplied the statement of allegations and that the charges were extremely vague and indefinite. In spite of all this no one cared to inform him of the facts, circumstances and particulars relevant to the charges. Even if the Enquiry Officer had made a report against . him the appellant could have been given a further opportunity at the stage of the second show cause notice to adduce O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

43. any further evidence if he so desired after he had been given the necessary particulars and material in the form of a statement of allegations which had never been supplied to him before. This could undoubtedly be done in view of the provisions of Art. 311 (2) of the Constitution as they existed at the material time. The entire proceedings show a complete disregard of Fundamental Rule 55 in so far as it lays down in almost mandatory terms that the charges must be accompanied by a statement of allegations. We have no manner of doubt that the appellant was denied a proper and reasonable opportunity of defending himself by reason of the charges being altogether vague and indefinite and the statement of allegations containing the material facts and particulars not having been supplied to him. In this situation, for the above reason alone, the trial Judge was fully justified in decreeing the suit." 30. It is pointed out by the learned senior counsel appearing for the petitioner that the authorities have travelled beyond the scope of their jurisdiction in considering O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

44. the arbitration case as well as the appeal as they relied upon extraneous factors and had approved the actions of the respondent. As far as the arbitration court is concerned it has evaluated each and every charges and had formed an opinion that either the charges were vague or were not proved. The appellate tribunal also came to the same opinion but further explains the circumstances under which a member of the union will function and his right to do so. It could be said that extraneous matters need not have been highlighted by the tribunal. But the fact remains that both the authorities have considered the factual issues involved in the matter in great detail and has concurrently found against the petitioner. Having found so, and applying the principle of law as evolved in the judgments cited above, I do not think that this Court will be justified in interfering with the said factual aspects.

31. The learned senior counsel would argue that there are specific allegations in respect of certain charges which O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

45. are not vague or which are the very material which was required to be considered by the authorities below. It is also contended that when the enquiry officer has found that the delinquent was guilty of the misconduct, there was no reason for the Arbitration Court to rely upon other evidence which were not available before the Enquiry Officer to negate the findings of the Enquiry Officer. The argument is that when the enquiry report clearly indicates that the charges are proved and unless it is found that the enquiry was conducted violating the principles of natural justice it was not open for the Arbitration Court to come to a different finding regarding the proved charges.

32. Having regard to the judgments cited above the scope of judicial review into findings of fact is very limited. But the argument of the petitioner is that certain charges are very specific, especially charges 2,3 and 4 of the 1st memo of charges. Let me now consider whether the said argument is sustainable, viewed in the light of the O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

46. judgments relied upon.

33. Though it could be said that some of the charges against the 1st respondent are vague, in the charge relating to preparing a so called profit and loss account of the Bank and other documents the charge is specific. It does not require any further clarification or elaboration. In the second charge it is alleged that even before the bank published their profit and loss account for the year ending with 31st March 2006, the 1st respondent had obtained the accounts of the bank secretly and prepared a profit and loss account by himself and published it among the share holders and depositors stating that it is the actual profit and loss account of the bank. In the said balance sheet it is shown that the bank has suffered a loss of Rs.93.72 lakhs and the same was published in several meetings among the public and especially among the customers thereby affecting the trust imposed by them on the bank. The third charge is that on 03/02/2005, he entered the bank auditorium where a O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

47. joint meeting was being held between the Managing Committee members and the employees. He forcibly entered the dias and addressed the gathering exhibiting the balance sheet copies showing that the balance sheet and profit and loss account for the year 1995-1996 which was approved by the Reserve Bank of India and Joint Registrar (Audit) was false. In charge No.4, the allegation is that based on a false document prepared by the 1st respondent on 17/03/2006, he had convened a Dharna in front of the bank and published the false documents prepared by him. These three charges substantially gives an indication that the 1st respondent has prepared certain false documents purporting it to be the balance sheet and profit and loss account of the bank. The enquiry officer in his report, has found, on the basis of evidence adduced before him that charges 1 to 6 in the first charge memo which includes charges 2, 3 and 4 are proved in addition to the charges levelled against the 1st respondent in the 2nd charge memo. O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

48. The Arbitration Court found that the 2nd charge levelled against the 1st respondent is vague since the petitioner has not stated how the 1st respondent collected the data and prepared the profit and loss account. It is further found that it is not a profit and loss account nor a balance sheet. In respect of charge No.3, it is found that evidence of DW3 would disprove the said charge. In respect of charge No.4 it is found that the evidence of the petitioner bank does not prove the said charge. The appellate authority had considered the actions of the 1st respondent as part of Trade Union activities. True that a Trade Union leader is entitled to address the gatherings of the employees and make speeches about the mal functioning of a society. The short question is whether such an officer of the bank could publish materials which are available with the bank and proclaiming the same as balance sheet or the profit and loss account of the bank when the bank had not finalised the balance sheet and profit and loss account for the said year. This aspect of O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

49. the matter was not considered by the Arbitration Court or the Tribunal. The charges to that extent is very specific. It is not merely the addressing of gatherings that matters, it is the publication of the documents which, according to the bank, were prepared on the basis of the information the 1st respondent had while working as an officer of the bank. Such an act can be treated by any employer as a serious misconduct on the part of the employee. Therefore, I am of the view that atleast charges 2, 3 and 4 in Ext.P1 memo of charges cannot be brushed aside as vague or not specific. The delinquent had understood the charges and had given replies, evidence was adduced, the evidence was considered by the enquiry officer and it is found that the charges were proved. Having found so, unless there is any perversity in the findings rendered by the enquiry officer the Arbitration Court could not have come to a different finding. In that view of the matter, the findings in respect of the aforesaid charges are liable to be set aside and I do so. O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

50. 34. In W.P.C.No.15295 of 2011 the petitioner, the 1st respondent in O.P.(c) No.2058 of 2011 had sought for implementing the direction to reinstate him with back wages and appropriate seniority. Since I am relegating the matter to the disciplinary authority for reconsideration of the disciplinary proceedings from the stage of preparation of the enquiry report in respect of charge Nos.2, 3 and 4 in Ext.P1, I am of the view that since the petitioner has remained out of service from 03/03/2006, having regard to the fact that I am relegating the matter to the disciplinary authority for taking further action, the petitioner shall be reinstated in service with 50% back wages and his entitlement for the balance back wages can be considered after the completion of the disciplinary proceedings. The bank shall start further disciplinary proceedings as stated above only after reinstatement of the petitioner and on payment of the back wages, which shall be done as early as possible and not later than fifteen days from the date of receipt of a copy of this O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

51. judgment.

35. Having regard to the aforesaid factual situation, I am of the view that these writ petitions can be disposed as follows: i) O.P.(C).No.2058 of 2011 is partly allowed. The findings in Ext.P15 and P17 are set aside, in respect of charges 2,3 and 4 in charge memo, Ext.P1 and it shall be open for the Petitioner to proceed with the Disciplinary proceedings from the stage after receiving the enquiry report. ii) W.P.C.No.15295 of 2011 is partly allowed. The petitioner shall be reinstated in service with 50% back wages within a period of fifteen days from the date of receipt of a copy of this judgment and the respondent bank shall continue the disciplinary proceedings as stated above only after reinstatement and payment of 50% back wages. (A.M.SHAFFIQUE, JUDGE) jsr O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

52. O.P(c) No.2058 of 2011 & W.P.C..No15295 o”

5.