VISHNU.S v. S SERVICE CO-OPERATIVE BANK LTD.NO. 919, ANAD.P.O

BY ADV THOMAS ABRAHAM, GP, SRI RIYAL DEVASSY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.5.2024, THE COURT ON 29.07.2024 DELIVERED THE FOLLOWING: WPC 19687/2024 2 JUDGMENT (Dated this the 29th day of July 2024) The petitioner was issued with Memo No.150/2022 dated

20.09.2022, on the allegation that he misbehaved with the President and used to come for duty after consuming alcohol and that he is not properly distributing the Social Welfare Pension to a mentally challenged person for the last ten months. On

14.3.2023, Ext.P2 memo of charge was issued with a statement of allegations. The petitioner was placed under suspension with effect from 23.09.2022. As per the judgment dated 05.03.2024 in W.P.(C) No.4907 of 2024, the petitioner was reinstated in service, and the subsistence allowance was disbursed. He was issued with a show cause notice dated 30.04.2024, directing him to file an objection against the report of the 4th respondent within four days. An enquiry report was also served to him. WPC 19687/2024 3

2. The petitioner has requested for 10 days’ time to file an objection as per Ext.P4. The petitioner was served with another communication from the 3rd respondent informing that 5 more days are allowed for filing an objection, and if nothing is heard within the stipulated time, it shall be deemed that he has no objection. The petitioner submitted another representation seeking 2 weeks for filing objection. But the same was rejected. Consequently, the 5th respondent, President of the Society, passed Ext.P7 order No.EST 10/23 dated 20.5.2024 dismissing the petitioner from service. Through this Writ Petition, the petitioner seeks a declaration that Ext.nos.P3, P3(A), P6 and P7 are illegal and arbitrary and to set aside the same.

3. A counter affidavit is filed by respondent Nos.2 to 5 in which it is contended that the petitioner has an alternate efficacious remedy of Appeal under Sub Rule 4 of Rule 198 of the Kerala Co-operative Societies Rules, 1969 (the Rules) against the imposition of penalty against him under Rule 198(1)(h). The WPC 19687/2024 4 petitioner joined the respondent Bank as a Night watcher on

5.10.2019. He was also in charge of distributing Social Security Pension to the pensioners. There were complaints against the petitioner regarding non-reporting for duty and instances of misbehaviour also. Regarding the non-disbursement of pension to a mentally challenged pensioner, a complaint was filed by the daughter of the said person. On receipt of the complaint, the Managing Committee held on 17.9.2022, issued a memo to the petitioner on 20.9.2022 seeking an explanation. While so, the petitioner was arrested by Nedumangad Police, while he was on duty at the Vengavila branch of the bank on 21.9.2022 for the offences punishable under Sections 450, 342, 354, 354B and 376 IPC and a crime was registered as Crime No.1565 of 2022 of Nedumangad Police station. On coming to know of the registration of the crime, the petitioner was placed under suspension. WPC 19687/2024 5

4. As per the decision of the Managing Committee on

28.11.2022, a sub-committee was constituted to enquire into the allegations of the petitioner and to submit a report. The sub committee examined the allegations raised against the petitioner, recorded a statement, examined the case documents and submitted Ext.P3 report to the Managing Committee. It was found by the Sub-committee that all the charges levelled against the petitioner stand proved. The Managing Committee, on

28.2.2023, as per the decision No.662, decided to issue a Memo of charges against the petitioner. Ext.P2 Memo of charges was handed over to the petitioner at his residence through another employee on 16.3.2023, and the petitioner was required to submit his response within 7 days. But he did not submit any response to Ext.P2. The Nedumangad Police has submitted the charge sheet in Crime No.1565 of 2022 on 21.9.2022. Ext.P3(A) letter, along with the committee report, was served on the petitioner, and he was given 4 days to reply. However, the petitioner sought 10 WPC 19687/2024 6 days to respond and was granted 5 days' time. But even after that, he sought two more weeks' time. At that point, Ext.P6 letter was served on the petitioner to appear at 11 a.m. on 9.5.2024, if he wants to make any submission. The petitioner did not opt to avail of the said opportunity also; therefore, by Ext.P7 order, he was dismissed from the service.

5. Disciplinary proceedings were conducted strictly in accordance with law, giving sufficient opportunity to the petitioner to make his submissions before the Sub Committee and to respond to the committee's report. However, the petitioner failed to make use of the opportunity. He has not availed the statutory remedy of appeal under Rule 198(4) of the Rules. Without availing the statutory remedy, the petitioner cannot rush to this court under Article 226 of the Constitution of India and, therefore, prayed for dismissal of the Writ Petition. WPC 19687/2024 7

6. Heard Sri.Swathi Kumar B.S. for the petitioner, the Government Pleader Sri.Riyal Devassy for the 1st respondent and the standing counsel, Sri.Thomas Abraham for respondent Nos.2 to 5.

7. On the basis of the Ext.P3 enquiry report, the petitioner was given 4 days to reply, but the petitioner sought 10 days, which was allowed in part and was granted 5 days. Thereafter, the petitioner again sought two weeks, which was not given. At the same time, he was directed to appear in person on 9.5.2024 at 11 am and to make his submission. But the petitioner did not turn up. Ultimately, since the petitioner filed no objection, the respondent Bank had no other option but to dismiss the petitioner from the service.

8. The main contention raised by the counsel for the petitioner is that the petitioner was not given an opportunity to defend and file an objection to the enquiry report. It is seen that WPC 19687/2024 8 the petitioner was given an opportunity, but he requested more time, i.e., 10 days at the first instance and 2 weeks at the second instance. He was also given an opportunity to appear in person on 9.5.2024 at 11 am to submit his objection, which he has not availed. So, it cannot be said that there is a violation of principles of natural justice to entertain a Writ Petition under Article 226 of the Constitution of India.

9. According to Rule 198(4) of the Rules, the petitioner has an alternate efficacious remedy through an appeal against every order imposing a penalty to the competent appellate authority. The petitioner, being a night-watcher, if the punishment is imposed by the President, has to file an appeal to the Executive Committee/Board of Management. The order dismissing the petitioner is passed on 20.5.2024 under Rule 198(1) of the Rules. The limitation period for filing the appeal is 3 months from the date of order imposing a penalty. In such a situation, the petitioner has to invoke statutory remedy by an appeal under Rule WPC 19687/2024 9 198(4) of the Rules. If the petitioner files the appeal as mentioned above, it shall be considered by the appellate authority untrammeled by any of the observations in the judgment within a period of 3 months from the date of filing of appeal. The Writ Petition is disposed of as above. Sd/- BASANT BALAJI, JUDGE dl/ WPC 19687/2024 10 APPENDIX OF WP(C) 19687/2024 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P3(A) Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 TRUE COPY OF THE MEMO NO. 150/2022 DATED 20- 9-2022 ISSUED BY THE 3RD RESPONDENT TRUE COPY OF THE MEMORANDUM OF CHARGE NO. 282/23 DATED 14-3-2023 ISSUED BY THE 3RD RESPONDENT. TRUE COPY OF THE ENQUIRY REPORT DATED 9-3- 2023 ISSUED BY THE COMISSION CHAIRMAN TRUE COPY OF THE NOTICE DATED 30-4-2024 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 2-5-2024 TRUE COPY OF THE COMMUNICATION NO. 14/24 DATED 4-5-2024 OF THE 3RD RESPONDENT. TRUE COPY OF THE NOTICE NO. 15/24 DATED 8-5- 2024 ISSUED BY THE 5TH RESPONDENT. TRUE COPY OF THE ORDER NO. EST 10/23 DATED 20-5-2024 OF THE 5TH RESPONDENT. RESPONDENT EXHIBITS EXHIBIT R2(a) The true copy of the FIR in Crime No.1565 of 2022 of Nedumangad Police Station