Abraham Vs. Elikulam Service Co-operative Bank Ltd. - Court Judgment

M. Ramachandran, J.

1. The Convenor of the Disciplinary Sub Committee constituted by the Director Board of Elikulam Service Co-operative Bank Limited (1st respondent herein) had advised the petitioner, by communication dated 16.10.2001, that in furtherance of the memo that had been issued to him dated 23.7.2001 after due enquiries it had been found that the petitioner was at fault, duly taking notice of the gravity of the lapses. According to him, though it was a case of serious indiscipline, taking notice of the circumstance that there was no past similar conduct from his part, it had been decided to bar two increments with cumulative effect. Ext.P1 is the order. During the period concerned, the petitioner was working in the cadre of Accountant, but working as Branch Manager of Karakkulam Branch of the Bank. He had been kept under suspension during the period of enquiry.

2. Normal remedy, which might have been admissible to the petitioner, is an appeal as prescribed under Rule 198(4) of the Kerala Co-operative Societies Rules (hereinafter referred to as Rules)'. But the petitioner had resorted to a remedy of proceedings under Rule 176 of the Rules. Under the said Rule, power is invested in the Registrar to rescind resolutions of a Committee, in given circumstances. It had been contended by the petitioner inter alia that there was no proper enquiry in consonance with the principles of Natural Justice and it was a case of mala fide exercise of powers and circumstance for interference under Rule 176 was essentially there.

3. The application filed on 19.12.2002 had not been taken up or heard, but however the petitioner came to know about a Memo that had been filed by the counsel representing the Bank before the Joint Registrar of Co-operative Societies (General), Kottayam, dated 31.3.2004, whereby the said officer had been informed that there was a resolution taken as No. 438 dated 13.3.2004 by the Bank, whereunder the entire disciplinary action taken as against him had been decided to be cancelled, subject to their right to take fresh action in accordance with law. The petitioner had objected to the above request made by the Bank, but no orders have been passed by the Joint Registrar, and in the meanwhile, coming to know that an Enquiry Officer had been appointed to enquire into the allegations against him, he has approached this Court. The enquiry notice is Ext.P4 dated 11.5.2004, and because of the interim orders passed by this Court, further proceedings have been stayed.

4. The allegations against the petitioner was that there was a compliant submitted against him by two members of the Bank, who were husband and wife on 14.6.2001, and it constituted grave dereliction of duties. They had alleged about certain indiscreet conduct on the part of the petitioner. Suggestions had been passed over telephone which were likely to hurt the esteem of Smt. Alice Mathew, wife of Mathewkutty Thomas and they had therefore taken the steps for filing a complaint to the Bank. The Memo issued to the petitioner dated 23.7.2001, referred to in Ext.P1, on which the Sub Committee had made enquiries pertained to the above complaint.

5. The contentions of the petitioner are two fold. The first is that the proceedings, whereunder the decision of the Committee had been cancelled by the Director Board was without authority of law. The second is that interference with the jurisdiction of an officer who had authority to examine the issue placed before him under Rule 176 could not have been initiated or permissible. The co-operative institution, when Ext.P1 came to be passed, had become functus officio in the matter, and it could not have been recalled.

6. A preliminary objection has been raised by the respondents about the maintainability of the Writ Petition. It is contended that the application before the Joint Registrar itself was not maintainable, as the petitioner has not resorted to statutory remedy of appeal. Further, it is contended that the decision of the Sub Committee was not a resolution capable of being rescinded by the Joint Registrar. The next submission was that the Writ Petition effectively was directed against a co-operative institution and a writ normally therefore was not maintainable. It was also argued that the resolution leading to Ext.P3 memo was never subjected to attack, but on the other hand, he had derived benefit out of that.

7. Of course, Sri. P. Ravindran, counsel for the petitioner, referred to a judgment of this Court reported in 2003 (2) KLT 606 (Thrissur District Co-operative Bank v. State of Kerala), wherein Justice R. Rajendra Babu had held that a Writ Petition will lie against a co-operative institution, but it is submitted at the bar that doubting the above decision, reference is pending before a Full Bench of this Court.

8. I may examine the maintainability of the Writ Petition. The first objection is that the application under Rule 176 was misconceived. Perhaps after a statutory appeal, it would have been permissible, but what is challenged is a decision of a Sub Committee, constituted for enforcing discipline.

9. Rule 176 refers to power of the Registrar to rescind any resolution of any meeting of any Society or the Committee of any Society. The Committee denotes the Director Board, and a resolution passed could be challenged. Likewise, a resolution of general body of the Society also can be the subject matter of proceedings. Under Section 2(e) of the Act, Committee is defined as the governing body of a Co-operative Society to which the management of the Society is entrusted. A Sub Committee does not come within the definition, and therefore against its decision application under Rule 176 also may not lie. Therefore, the first respondent is justified in contending that the application itself was not maintainable, before the Registrar.

10. Going through the facts in Thrissur District Co-operative Bank's case, and the judgments, on which reliance had been placed, it is difficult to agree with the submissions of the learned counsel for the petitioner that a Writ Petition against a Cooperative Society is maintainable. The learned Judge had relied on a decision of the Supreme Court where the co-operative institution concerned was practically an arm of the Government and the State had deep and pervasive control over the affairs of the institution. This Court had been consistently holding that perhaps a Writ Petition would have been maintainable against a co-operative institution in respect of certain statutory duties. But that is not a case with regard to the application for a writ of certiorari, whereby a resolution of the co-operative institution is sought to be set aside. The basic defect of maintainability always is there, and I have to uphold the preliminary objection of the respondents.

11. Another aspect also has to be taken notice of, that the decision taken by the Committee, referred to in Ext.P3 and other documents produced, namely Resolution No. 438 dated 13.3.2004, has not been subjected to challenge in the manner in which it should have been done. Resolution of a Co-operative Society is to be challenged by an aggrieved person, by resorting to Rule 176 of the Rules and this not having been done, the proceedings cannot be entertained in a writ jurisdiction. Thus, there are insurmountable objections in the path of the petitioner.

12. Notwithstanding the above findings, I may examine the contentions on merits as well. It was a case where proceedings were initiated on the basis of a complaint against a member of the Society. A Sub Committee had enquired into the allegations and had prescribed punishment, finding that charges stood substantiated. It has been taken up under Rule 176. But coming to know that there is infirmity in the orders, the Society had resolved to cancel the proceedings altogether, but however, reserving their rights to proceed in the matter appropriately. Mr. Ravindran submits that it was a case where the Committee was authorised to take a decision and as Appellate Authority the Director Board could have sat in judgment over it, but since no appeal was filed, they had no jurisdiction whatsoever to set aside or, annul the decision. In other words, according to him, a 'statutory body' has taken a decision as authorised by Rule 198 and it could not have been possible for the Director Board to interfere with it in any manner. According to him, it would have amounted to a review, but since powers for review had not been expressly conferred, the decision taken for annulling the orders were without jurisdiction.

13. The learned counsel had invited my attention to the decision reported in (1987) 4 SCC 525 (Kuntesh Gupta v. Hindu Kanya Mahavidyalaya) which provided that there should be specific conferment in the matter of power of review. He also took me to the decision reported in 1993 (1) KLT 920 (Sethu Jayasree Bhasker v. Travancore Devaswom Board), where a Division Bench of this Court had held that a power of review has to be expressly conferred and it would not have been permissible even for the Government to sit in judgment over its orders. Citing the judgment reported in 1982 KLT 512 (Kesavan Namboodiri v. State of Kerala) it is pointed out that a learned. Judge had held that once the finding had been accepted it cannot be discarded on a later occasion for convenience of the employer. However, these are issues where the right of quasi-judicial authorities had been examined for the purpose of finding whether there was a power of review.

14. In the present case, the position is entirely different. It was a case where the Sub Committee had taken a decision and this has been cancelled by the Board of Directors, when they found that there was inherent lacuna in the orders. A petition under Rule 176. before the Joint Registrar, whether maintainable or not maintainable would not have altered the position. It was not necessary for the employer to await the orders of such authority and then proceed with the matter as authorised alone. In other words, the application before the Joint Registrar by itself would not have insulated the issue. If the employer had a rethinking that the defects have to be appropriately cured, nothing could have held them back to proceed de novo on a new plat form.

15. I am constrained to hold that the arguments raised are therefore too technical. It is a case where the petitioner was not subjected to any disability. The impugned orders have been revoked. It is pointed out that the first reaction of the petitioner was to put up a request for monetary benefits which he had lost, arising from suspension and bar of increments, when he was advised of the decision. A resolution had been taken for restoring the benefits and it is now as if no punishment has been imposed on him. Therefore, the contentions raised in the Writ Petition that he had been subjected to a double jeopardy may not be sustainable. The principle cited by the petitioner does not militate against this position. What has been done by the respondents is to offer the petitioner a full opportunity to face the charges which had been raised against him, and full and fair opportunities had been offered and the enquiry is proposed to be held by an independent person. The petitioner can therefore avail of the opportunities. The alleged trauma through which he had gone is not sufficient enough to hold that he need not face any enquiry and what he has suffered already should be treated as adequate punishment. The reliefs sought for in the Writ Petition are not liable to be granted.

16. A decision of this Court may also be relevant, at this juncture. In President, Eraveli Co-operative Consumer's Stores Ltd. v. Deputy Labour Commissioner (1977 KLT 541), a learned Judge had held that on the cancellation of the order of termination, the Appellate Authority under the Shops and Commercial Establishments Act ceased to have any further jurisdiction to deal with the order of the employer, as it had become non-existent. This appears to be on all fours as far as the facts of this case are concerned.

17. An application had been filed by a third party to the proceedings (I.A.No. 9580 of 2004) seeking for impleading them as additional respondents, it is submitted by Sri. Sebastian Davis that it was at the instance of the said person that action had been initiated and therefore they are necessary parties to the proceedings. However, since the institution has taken a decision to proceed with the matter on their own volition, I do not think the impleadment of additional respondents will be necessary or justified. Therefore, I.A. No. 9580 of 2004 is dismissed.

The Writ Petition is dismissed.