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Judgment
The petitioner, who was working as Procurement Assistant in the 5th respondent Co-operative Society, has filed this writ petition under Article
226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 order dated 13.12.2017 issued by the Convener of the Administrative
Committee of the said Society, whereby she has been placed under suspension, and also Ext.P7 memo of charges dated 13.12.2017.
On 04.01.2018, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for
respondents 1 to 3. Urgent notice on admission by special messenger was ordered to respondents 4 and 5.
A statement has been filed on behalf of respondents 4 and 5, which is followed by a counter affidavit dated 30.01.2018.
Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 3 and also the learned
counsel for respondents 4 and 5.
The sole issue that arises for consideration in this writ petition is as to whether any interference under Article 226 of the Constitution of India is
warranted on Ext.P6 order of suspension and Ext.P7 memo of charges dated 13.12.2017 issued by the Administrative Committee of the 5th
respondent Society.
The petitioner was initially appointed as Secretaryin- charge of the 5th respondent Society on temporary basis, on 01.04.2012. While continuing
as such, she was appointed as Procurement Assistant on provisional basis, on 07.09.2013 and her appointment was later regularised vide Ext.P1
order dated 25.02.2016 of the 3rd respondent Deputy Director. Even after appointment as Procurement Assistant, the petitioner continued as the
Secretary-in-charge till 22.10.2017.
Five out of eight members in the Managing committee of the 5th respondent Society resigned. Therefore, the 3rd respondent, in exercise of the
powers under Section 33(1)(b) of the Kerala Co-operative Societies Act, 1969, appointed an Administrative Committee consisting of three
members, for a period of six months, vide Ext.P2 order dated 19.4.2017. On 23.10.2017, the Convener of the Administrative Committee issued
Ext.P3 order, whereby the petitioner was removed from the additional charge of Secretary, with effect from 23.10.2017.
Alleging that, on 25.10.2017, the members of the Administrative Committee attempted to forcibly dislodge the petitioner from the position of
Secretary-in-charge, she made a statement to the police on 30.11.2017, based on which, Crime No.2267/2017 of Anchal Police Station alleging
offences under Sections 294(b), 341, 506, 344 and 34 of the Indian Penal Code, 1860, was registered against two members of the Administrative
Committee and others. Ext.P4 is the FIR filed before the Judicial First Class Magistrate Court, Punalur. On 13.12.2017, the petitioner was served
with Ext.P6 order of the Convener of the Administrative Committee, whereby she is placed under suspension pending enquiry. Along with Ext.P6,
the petitioner was also issued with Ext.P7 memo of charges dated 13.12.2017.
The learned counsel for the petitioner would contend that Exts.P6 and P7 are ex facie illegal. As per Ext.P8, the duty time fixed for Procurement
Assistant is between 6.30 a.m. to 10.30 a.m. and thereafter from 2.00 p.m. To 6.00 p.m. Since the petitioner is not holding the additional charge
of Secretary, with effect from 23.10.2017, there is no necessity to keep her under suspension pending enquiry. The learned counsel would also
contend that the audit report for the financial year 2011-12 was also relied upon in Ext.P6 order of suspension, though the petitioner joined the 5th
respondent Society as Secretary-in-charge only from 1.4.2012 onwards. Moreover, the figure arrived at in Exts.P6 and P7 as Rs.7,74,988.22 is
without any factual basis. On the other hand, in Ext.P11 letter dated 28.8.2017 of the Convener of the Administrative Committee the total loss
caused to the Society is mentioned as Rs.8,89,430/-. Therefore, Ext.P6 order of suspension and Ext.P7 memo of charges are issued on
extraneous consideration and as such, vitiated by malice in law. The learned counsel would also contend that Ext.P7 memo of charges is vague and
one cannot expect a fair trial on the basis of such charge. Relying on Ext.P5 leaflet published by the local committee of the Communist Party of
India at Anchal, the learned counsel would contend further that Exts.P6 and P7 are on account of political rivalry in the management of the affairs
of the 5th respondent Society.
Rule 198 of the Kerala Co-operative Societies Rules, 1969, deals with disciplinary action against any member of the establishment of a Co-
operative Society. Sub-rule (6) of Rule 198 provides that an authority competent to appoint an employee may suspend him pending enquiry into
serious charges against such employee. No employee shall however be kept under suspension for a period exceeding six months at a time and in
no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar. As
per sub-rule (6) of Rule 198, an employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of
Subsistence Allowance Act, 1972. In view of the statutory provisions under sub-rule (6) of Rule 198 of the Rules, it cannot be contended that
Ext.P6 order, whereby the petitioner was placed under suspension pending enquiry, is one issued absolutely without any authority of law.
Clause (i) of Section 2 of the Kerala Co-operative Societies Act define ''dispute'' to mean any matter touching the business, constitution,
establishments or management of a Society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a
Society, whether such claim be admitted or not. Section 69 of the Act deals with disputes to be decided by Co-operative Arbitration Court and
Registrar. Clause (d) of sub-section (2) of Section 69 of the Act makes it explicitly clear that, any dispute arising in connection with employment of
officers and servants of the different classes of societies specified in sub-section (1) of Section 18, including their promotions and inter se seniority
shall also be deemed to be a dispute, for the purpose of subsection (1) of Section 69. 12. In Thrissur Taluk Co-Operative College v. Joint
Registrar of Co-operative Societies (2012(1) KLT 503), this Court held that Section 69 of the Act provides for resolution of disputes as defined
under clause (i) of Section 2 of the Act by the Co-operative Arbitration Court whether it being a dispute between a member and the Society or an
employee and the Society. Clause (b) of sub-section (1) of Section 69 applies if it is a dispute between a member and the Society and clause (b)
of sub-section (2) of Section 69 applies if it is a dispute arising in connection with the employment. In Association of Milma Officers'' Ksheera
Bhavan and another v. State of Kerala and others (2015 (1) KHC 779) a Larger Bench of this Court held that in the case of a Co-operative
Society which does not fall under Article 12 of the Constitution, a writ petition can be maintained only when the action complained is of any
statutory violation or if it falls in a public domain or breach of public duty. No such circumstances warranting interference under Article 226 of the
Constitution of India is made out in the present writ petition.
Therefore, if the petitioner is aggrieved by Ext.P6 order of suspension or the disciplinary proceedings initiated by the issuance of Ext.P7 memo
of charges, it is for her to approach the Co-operative Arbitration Court under Section 69 of the Act, instead of approaching this Court invoking the
extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
The fact that the petitioner was holding the charge of Secretary of the 5th respondent Society from 1.4.2012 to 22.12.2017 is not in dispute.
The stand taken by respondents 4 and 5 in their counter affidavit is that, on a preliminary inspection, the present Administrative Committee found
certain irregularities committed by the petitioner and others. Thereupon, it was decided to conduct statutory audit for the years 2011-12 to 2016-
In Ext.R4(c) report for the years 2011-12 to 2015-16 and Ext.R2(d) report for the years 2016- 17 serious irregularities were detected by the
Statutory Auditor. Based on the said audit reports, the 3rd respondent Deputy Director issued Ext.R4(e) communication dated 17.10.2017 to the
Convener of the Administrative Committee, whereby the Committee was directed to take necessary action including realisation of certain amount
from the petitioner who was holding the charge of Secretary. It was thereafter, the petitioner was removed from the additional charge of Secretary
vide Ext.P3 order dated 23.10.2017.
In view of Exts.R4(c) and R2(d) reports of the Statutory Auditor and also Ext.R4(e) order of the 3rd respondent Deputy Director, it cannot
be said that Ext.P6 order of suspension is issued on extraneous considerations or it is politically motivated. It cannot also be said that Ext.P6 order
of suspension is for an unauthorised purpose, which constitutes malice in law. Therefore, the decision of the Apex Court in Ravi Yashwant Bhoir v.
District Collector, Raigad and Others [(2012) 4 SCC 407], is of no help to the petitioner.
In such circumstances, the petitioner has not made out a case warranting interference on Ext.P6 order of suspension and Ext.P7 memo of
charges, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. It is for the petitioner to challenge
Ext.P6 order of suspension and also the disciplinary proceedings initiated by the issuance of Ext.P7 memo of charges before the Co-operative
Arbitration Court raising appropriate factual and legal contentions. Without prejudice to the aforesaid right of the petitioner, this writ petition is
dismissed.
It is made clear that the observations contained in this judgment touching the merits of the case are made for the limited purpose to decide as to
whether an interference is warranted on Ext.P6 order of suspension and Ext.P7 memo of charges, invoking the extraordinary jurisdiction of this
Court under Article 226 of the Constitution of India.
All legal and factual contentions raised by both sides are left open to be raised before the appropriate forum.