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Judgment
Amit Rawal, J
Challenge has been laid to orders Exts.P2 and P3, ie., the award in ARC No.30/2011 dated 22.2.2013 of the Co-operative Arbitration Court,
Kozhikode and common judgment in Appeal Nos.33/2013 and 44/2013 dated 26.11.2013.
2. The facts leading to filing of the writ petition are that the petitioner was initially appointed as Junior Clerk, thereafter, promoted as Senior Clerk
and then to the post of Accountant. While working as Accountant in the Kunnamkulam Co-operative Urban Bank Ltd., he was assigned the charge of
Secretary till 4.6.2004. On the said date he was served with an order of suspension from service and thereafter served with a notice alleging
misappropriation of the funds ,which, was duly replied.
3. Respondents 1 and 2 did not accept the reply and decided to conduct an enquiry by the Sub Committee. The petitioner was summoned to appear
for enquiry before the committee though no enquiry officer was appointed. During the period of alleged misappropriation, the tenure of managing
committee of the Bank was over and an Administrator was appointed in its place. Various amount was spent as per the order of the Administrator
without issuing any vouchers and the petitioner was made a scape-goat. Thereafter the petitioner was served with a show-cause notice on the basis of
the enquiry conducted by the sub committee dated 11.4.2005 which was duly replied on 19.4.2005 resulting into dismissal on 30.4.2005 which was
assailed before the Arbitration Court. The Arbitration Court vide order Ext.P2 dated 22.2.2013 considering the material on record noticed that the
Bank had not properly followed the provisions of Rule 198 of the Co-operative Societies Rules and no enquiry officer was appointed and a parallel
proceeding was conducted by the President much less there were no co-ordination between the Disciplinary Sub-Committee and the proceedings
taken by the President, resultantly, set aside the orders of suspension and dismissal and allowed petitioner to retire voluntarily from the services of the
Bank
4. Against the aforementioned order two Appeals bearing No.44/2013 and 33/2013 were filed by the petitioner and the Management respectively.
On 26.11.2013 the Tribunal passed a common judgment allowing appeal No.33/2013 and dismissed appeal No.44/2013 ultimately set aside Ext.P2
order.
5. Learned counsel appearing on behalf of the petitioner in support of the writ petition has raised the following submissions:
i. No proper procedure as envisaged under Rule 198 of the Co-operative Societies Rules was followed
ii.No enquiry officer was appointed, nor any enquiry was conducted and that the Chairman of the Subcommittee decided on his own that the petitioner was guilty.
iii.The petitioner was not given any chance to cross examine the witnesses nor any adherence or reference of the said witnesses.
iv.The alleged admission of the guilt cannot permit the authorities to bypass the rules or procedure prescribed as it was under a caution.
v. The authorities were required to go into the defence of the petitioner regarding the fact that during the period of alleged misappropriation new Administrator was
appointed as the tenure of managing committee of the Bank was over.
vi. The petitioner was not served with the copy of the charge and copy of all documents relied upon, resulting into much hardship, suffering and amounted to
violation of the principles of natural justice.
6. In support of the aforementioned contentions, the judgment of this Court in Jose Philip v. Thodupuzha Taluk Co-operative Rubber Marketing
Society (2018 (3)Â KLT 251) has been relied.
7. Counsel representing the respondents supported Ext.P3 judgment in Appeal on the premise that the petitioner had admitted the guilt as evidenced
from Ext.R1(a ) and R1(c). On 21.6.2004 a memo was given by the Administrator to the petitioner for which he acknowledged and admitted the guilt,
Ext.R1(d). The newly elected the committee had taken the charge on 27.6.2004. A Disciplinary Sub Committee and two other members was
constituted by the newly elected board to enquire into the matter which resulted into an issuance of a notice dated 30.11.2004 to appear before the
Sub Committee on 10.12.2004. The petitioner acknowledged the receipt of the same and without any objection participated in the enquiry. The Sub
Committee conducted an enquiry into the charges by giving sufficient opportunity in the enquiry and on 30.4.2005 passed the order of dismissal. The
Arbitration Court could not have ignored the misappropriation by taking the aid of non-adherence of Rules 198 as Sub Rule 2A also envisages the
constitution of the Sub Committee to hold the enquiry at their level which has been adhered to and order of dismissal was also passed by the
competent authority and thus reiterating the order of Ext.P3 urged this Court for dismissal of the writ petition.
8. I have heard the learned counsel for the parties and appraised the paper book. At the outset, the judgment cited pertains to a case where there
was no constitution of committee or service of any charge sheet upon the delinquent employee. Thus, the ratio in the aforementioned judgment would
not be applicable. Coming to the facts as aforementioned, it is a matter of record that the petitioner was suspended in June 2004 by the earlier
disciplinary authority wherein certain alleged admissions have been taken aid of but the fact of the matter is the newly elected committee as per the
stand in the counter had taken charge on 27.6. 2004 and sufficient opportunity of hearing was given on 30.11.2004. After the Sub Committee had
found the petitioner to be guilty, the petitioner was again served with a show cause notice on 11.4.2005 which was duly replied on 19.4.2005 resulted
into dismissal on 30.4.2005. However, the reply is bereft of any material, whether the newly elected committee had examined the witnesses and given
an opportunity to the petitioner to cross examine. It is also intriguing as to whether any Enquriy Officer or assistance of any external agency was
taken. The documents so relied upon to arrive at a just and equitable finding of misappropriation have to be confronted and given a chance to rebut, in
accordance with law. All the sufficient materials are conspicuously absent in the counter nor have been placed on record during the writ petition
remained pending. It is not a case of the judgment on admission where the petitioner had admitted his guilt resulting into deposit, the disciplinary
committee had done away with holding of regular enqiry. Rule 198 2A do not envisage such a situation. The principle of justice therefore has not been
adhered to. It was a farcical exercise in issuing show cause, seeking reply and then again for the purpose of granting a personal hearing with regard to
the punishment, the procedure can be said to have been followed. This Court cannot remain unmindful of the fact that the petitioner in one of the
contents of letter had sought voluntary retirement. Though in the present writ petition order Ext.P2 treating the petitioner who have been voluntarily
retired has also been assailed. The fact remains that the petitioner had admitted the guilt and deposited the money but in the absence of any regular
enquiry, I deem it appropriate to set aside the order Ext.P3 and uphold the order Ext.P2 by treating the petitioner to have been voluntarily retired.
The writ petition is allowed in terms of the aforementioned observations.