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Judgment
A.V. Ramakrishna Pillai, J.—The proceedings of respondents 2, 3 and 4 dismissing the petitioner from service is challenged in the writ petition alleging that the action of the respondents was illegal, arbitrary and unconstitutional.
The petitioner entered the service of the respondent bank in the year 1988 and while working as a Secretary, he was placed under suspension by the president of the bank by order dated 8.8.2011. Thereafter disciplinary proceedings were initiated against the petitioner alleging that he was guilty of serious misconduct. An Enquiry Officer conducted a domestic enquiry and the petitioner alleges that the enquiry was conducted in a partisan manner and he was denied the opportunity to defend his case in the proceedings. Ext. P3 enquiry report was accepted by the disciplinary committee and it acted upon the same. The petitioner alleges that no copy of the report has been given to him and no opportunity was given to him for submitting his objections. Though Ext. P7 appeal was preferred, the same was considered by the third respondent and rejected by Ext. P8, which, according to the petitioner is a non-speaking order.
The petitioner alleges that the managing committee, who heard the appeal, was comprised of all the 11 members including the three members who constituted the disciplinary sub committee which is absolutely against the provisions of Rule 198 of the Co-operative Societies Rules.
According to the petitioner, the very presence of the disciplinary committee members in the managing committee, while Ext. P8 decision was taken itself is a vitiating factor invalidating the said decision. It is with this background, the petitioner has come up before this Court.
In the counter affidavit filed by the third respondent, it is contended as follows:
The enquiry officer conducted domestic enquiry not in partisan manner, but he conducted enquiry after issuing notice and affording opportunity to defend his case in domestic enquiry proceedings. This fact is clear from Ext. P3 report. Hence, there is no violation of the principles of natural justice and fair play. After enquiry, the enquiry officer found the petitioner guilty of the allegations raised against him. All the allegations are proved by the enquiry officer based on the documentary and oral evidence and elaborately described in Ext. P3 enquiry report.
It is further contended that the 4th respondent in the writ petition issued a notice to the petitioner on 16.7.2013 directing him to show cause why he should not be terminated from service. Ext. P4 in the writ petition is the notice issued by the sub committee. The petitioner in the writ petition received notice on 19.7.2013. As per the letter dated 23.7.2013, the petitioner requested 10 days time for submitting explanation and for personal appearance. True copy of the letter issued by the petitioner to Rajendran Pillai, who is the convenor of disciplinary committee, dated 23.7.2013 is produced as Ext. R3(a). Thereafter the third respondent issued another notice to the petitioner on 27.7.2013. True copy of the letter issued by the disciplinary committee to the petitioner dated 27.7.2013 is produced as Ext. R3(b); it is contended.
It is further contended that the disciplinary committee, after conducting a fair and detailed enquiry and also considering the objection filed by the petitioner, resolved to dismiss the petitioner from service as per Rule 198(h) of the Co-operative societies Rules. There is no violation of the provisions of Rule 198 of the Co-operative Societies Rules. The averment made by the petitioner in the writ petition that copy of the report has not been given to the petitioner is also incorrect and denied. After the enquiry, a report was submitted by the enquiry officer finding the petitioner guilty of entire allegations raised against him. As per the report, the petitioner is guilty of all the allegations raised against him. All the allegations are proved with the support of documentary and oral evidence produced before the enquiry officer. The petitioner has misappropriated a huge amount without the permission of the committee and without any sufficient reason. He has received more than Rs. 2 lakhs as salary advance and also used to attend the office consuming charges. Besides these, several other serious allegations raised against the petitioner were proved and it was elaborately described in Ext. P3 enquiry report.
The averment made in the writ petition that members of the disciplinary committee were also included in the Managing Committee is also incorrect and denied. The members of the disciplinary committee have not participated in the meeting of the third respondent Managing Committee held on 19.8.2013. True copy of minutes dated 19.8.2013 is produced as Ext. R3(c).
The petitioner has filed a reply affidavit to which a re-joinder was also filed by the third respondent.
I have heard the learned counsel for the petitioner and the learned senior counsel for the respondents.
The petitioner was issued with Ext. P1 memo of charges dated 27.9.2012 to which the petitioner submitted Ext. P2. As the reply was not convincing for the respondent bank, they had appointed an advocate as enquiry officer to contest the domestic enquiry against the petitioner. The petitioner alleges that the enquiry officer denied the petitioner the opportunity to defend the case. Admittedly, the petitioner had chosen to engage a trade union leader as his defence counsel in the proceedings and according to the petitioner, the lack of legal knowledge of the said trade union leader was also made use of by the management to the prejudice of the petitioner with the active support of the enquiry officer. The petitioner further alleges that the managing committee of the bank is under the control of a leading political party to which the petitioner was a former member. Subsequently the petitioner was expelled for the said party. Therefore, according to the petitioner, the managing committee had determined to put an end to the service of the petitioner in the bank. Therefore, they engaged an active member of the party as enquiry officer who had conducted the enquiry, it is alleged. The enquiry officer found that the petitioner was guilty of 17 out of 19 allegations. Ext. P3 is the enquiry report. After that the 4th respondent issued a notice to the petitioner directing him to show cause why he should not be terminated in view of Ext. P3 report. Ext. P4 is the notice. To this, the petitioner gave Ext. P5 reply. The 4th respondent considered and rejected Ext. P5 objection and resolved to dismiss the petitioner from service as per Rule 198(h) of the Co-operative Societies Rules and the same was intimated to the petitioner. The petitioner filed Ext. P7 appeal which was considered by the third respondent Managing Committee comprising of 11 members. The petitioner alleges that out of them, three were originally the members of the disciplinary committee. He alleges that the convenor of the said committee and other members were allowed to participate in the meeting held on 19.8.2013 in absolute violation of the provisions of Rule 198 of the Co-operative Societies Rules.
The petitioner further alleges that while 5 members of the third respondent committee voted against the dismissal of the petitioner, the majority of the members including the convenor and two other members of the disciplinary committee insisted that the petitioner should be dismissed from service and accordingly, without properly recording the deliberations, the managing committee passed Ext. P8 order, rejecting the appeal.
The main argument advanced by the learned counsel for the petitioner is that disciplinary proceedings were initiated, continued and culminated against him without following the procedure under Rule 198 of the Kerala Cooperative Societies Rules. The petitioner also alleges that disciplinary action has been taken against him in violation of the principles of natural justice.
The learned counsel for the petitioner points out that though the disciplinary committee was constituted by the third respondent, the above committee has not conducted any disciplinary action against him and the said material irregularity has now been admitted by one among the members of the alleged disciplinary committee by J. Krishnan Kutty who has sworn to an affidavit in that regard which was produced before this Court. The said affidavit is marked as Ext. P10.
The learned senior counsel, per contra, relying on Ext. R3(c) would submit that a detailed discussion was held in the Director Board and two members had expressed the opinion that the punishment of dismissal from service need not be granted, however, all other members are of the view that the dismissal from service has to be given to the petitioner and accordingly, it was decided by the majority to dismiss the appeal.
It was contended that none of the members of the disciplinary committee, viz. K. Rajendran Pillai, J. Krishnankutty Nair and Naseema had participated in the meeting of the Director Board. In Ext. P10, the aforesaid Krishnan Nair has averred that no disciplinary committee was constituted and that he had not participated in the disciplinary sub committee. The genuineness of Ext. P10 is challenged by the respondents. It was further argued by the learned senior counsel for the respondent that after the dismissal of the petitioner from service, it was revealed that the petitioner had caused huge financial loss to the society by fabricating documents as well as falsifying the loan accounts. It was subsequently revealed that three persons had availed of three loans for Rs. 2.5 lakhs each on 9.1.2009 and there was no repayment for the said amount. Without any repayment and without any authorisation from the bank, the petitioner misutilising the authority as Secretary has released the mortgage and handed over the original document to all the three persons even without repayment of the loan amount coming to Rs. 7.5 lakhs and the amount due to the bank coming to more than 14.5 lakhs including the interest.
Though it was strenuously argued that the enquiry itself was vitiated by violation of principles of natural justice, there is nothing on record to substantiate the same. However, the proceedings went out of gear after the enquiry report was filed by the enquiry officer. Before proposing the punishment, the copy of the enquiry report was not given to the petitioner. After receipt of Ext. P3 enquiry report, Ext. P4 notice was served on the petitioner proposing the penalty to be imposed upon him. This notice should have been preceded by another notice along with a copy of the enquiry report asking the petitioner why the report should not be accepted as well as proposing the penalty and asking explanation as to why such punishment should not be imposed upon the delinquent in the event of acceptance of enquiry. This procedure has not been complied with and therefore, the entire proceedings subsequent to Ext. P3 has to go.
The petitioner has a further case that the imposition of penalty upon him is without complying with the procedural formality envisaged under Rule 198.
Rule 198 of the Co-operative Societies Rules deals with the authorities who are to impose punishment and also the appellate body who is to hear the appeal. An order passed by the sub committee is appealable before the Board of Directors.
The appeal was considered by the Managing Committee comprising of all the 11 members including the three members who constituted the disciplinary sub committee. It is against the provisions of Rule 198 of the Cooperative Societies Rules. The very presence of the disciplinary committee members in the Managing committee while Ext. P8 decision was taken itself is a vitiating factor invalidating the said decision.
Therefore, on a consideration of the entire materials now placed on record, this Court is of the view that Exts. P6 and P8 shall not be allowed to stand.
In the result, this writ petition is disposed of quashing Exts. P6 and P8 and directing the respondents to proceed with in accordance with law from the stage at which Ext. P3 report was filed. Final decision shall be taken within a period of three months from the date of receipt of a copy of this judgment.