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2022 Supreme(Online)(KER) 40182
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &
THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 CON.CASE (C) NO.2399 OF 2022 AGAINST THE JUDGMENT DATED 26.09.2022 IN WP(C)
NO.22754/2020 OF HIGH COURT OF KERALA PETITIONER/PETITIONER:
DERLY K.J., AGED 50 YEARS, W/O.JOSEPH, KATTUKARAN HOUSE, MARATHAKKARA P.O, OLLUR, THRISSUR:680306.
BY ADV JELSON J.EDAMPADAM RESPONDENT/RESPONDENT:
LINTO RAPHAEL FATHER'S NAME & AGE NOT KNOWN TO THE PETITIONER SECRETARY, OLLUR TOWN CO-OPERATIVE SOCIETY LTD.NO.R 1120, COMPANYPADY P.O., OLLUR, THRISSUR DISTRICT: -680 306.
BY ADV.T.R.HARIKUMAR THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
09.12.2022, ALONG WITH R.P.NO.1040/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &
THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 R.P NO.1040 OF 2022 AGAINST THE JUDGMENT DATED 26.09.2022 IN WP(C)
NO.22754/2020 OF HIGH COURT OF KERALA REVIEW PETITIONERS/RESPONDENTS 2 & 3:
1 OLLUR TOWN CO-OPERATIVE SOCIETY LTD NO.R 1120, REPRESENTED BY ITS SECRETARY, COMPANYPADY P.O, OLLUR, THRISSUR DISTRICT, PIN – 680306.
2 THE MANAGING COMMITTEE, OLLUR TOWN CO-OPERATIVE SOCIETY LTD NO.R 1120, REPRESENTED BY ITS PRESIDENT, COMPANYPADY P.O, OLLUR, THRISSUR DISTRICT, PIN – 680306.
BY ADVS.
T.R.HARIKUMAR ARJUN RAGHAVAN RESPONDENTS/PETITIONER & 1ST RESPONDENT:
1 DERLY K.J., AGED 50 YEARS, W/O.JOSEPH, KATTUKARAN HOUSE, MARATHAKKARA P.O, OLLUR, THRISSUR:680306.
2 THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN – 695001.
BY ADV JELSON J.EDAMPADAM THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
09.12.2022, ALONG WITH CON.CASE(C) NO.2399/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &
THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 R.P.NO.1120 OF 2022 AGAINST THE JUDGMENT DATED 26.09.2022 IN W.A.NO.445/2020 OF HIGH COURT OF KERALA REVIEW PETITIONER/APPELLANT:
OLLUR TOWN CO-OPERATIVE SOCIETY LTD NO.R 1120, REPRESENTED BY ITS SECRETARY, COMPANYPADY P.O, OLLUR, THRISSUR DISTRICT, PIN – 680306.
BY ADVS.
T.R.HARIKUMAR ARJUN RAGHAVAN RESPONDENTS/RESPONDENTS:
1 THE KERALA CO-OPERATIVE TRIBUNAL, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM, PIN – 695001.
2 DERLY.K.J, AGED 50 YEARS, W/O.JOSEPH, KATTUKARAN HOUSE, MARATHAKKARA P.O, OLLUR, THRISSUR, PIN – 680306.
BY ADV JELSON J.EDAMPADAM THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
09.12.2022, ALONG WITH CON.CASE(C) NO.2399/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 R.P.NO.1122 OF 2022 AGAINST THE JUDGMENT DATED 26.09.2022 IN W.A.NO.331/2021 OF HIGH COURT OF KERALA REVIEW PETITIONER/1ST RESPONDENT:
OLLUR TOWN CO-OPERATIVE SOCIETY LTD NO.R 1120, REPRESENTED BY ITS SECRETARY, COMPANYPADY P.O, OLLUR, THRISSUR DISTRICT, PIN – 680306.
BY ADVS.
T.R.HARIKUMAR ARJUN RAGHAVAN RESPONDENTS/APPELLANT & 2ND RESPONDENT:
1 DERLY K.J, AGED 50 YEARS, W/O.JOSEPH, KATTUKARAN HOUSE, MARATHAKARA P.O, OLLUR, THRISSUR, PIN – 680306.
2 THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN – 695001.
BY ADV JELSON J.EDAMPADAM THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
09.12.2022, ALONG WITH CON.CASE(C) NO.2399/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
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Cont.Case (C) No.2399 of 2022 in WP(C) No.22754 of
2020, Review Petition Nos.1040 of 2022 in WP(C) No.22754 of 2020, 1120 of 2022 in W.A.No.445 of
2020 & 1122 of 2022 in W.A.No.331 of 2021 ---------------------------------------------------
Dated this the 09th December, 2022
O R D E R
K.Vinod Chandran, J.
The review petitions arise from a common judgment in two writ appeals and one writ petition. The subject matter of the writ petitions was the disciplinary enquiry initiated against the 1st respondent herein, who was the Accountant of the Society; the review petitioner herein. Disciplinary proceedings were initiated on charges of misconducts, including calculation of interest on certain specified accounts, which the delinquent employee asserted would not give rise to a charge of misconduct, especially if the other similar accounts are verified. The disciplinary enquiry ended in the dismissal of the delinquent, upon which the delinquent approached the Arbitration Court, which confirmed the order of the Disciplinary Authority.
2. On a challenge before the Co-operative Tribunal, the enquiry report was set aside and there was a direction to the Arbitration Court to verify the correctness of the enquiry proceedings and the enquiry report afresh. The employer filed the writ petition, in which it was directed that the employer will be allowed to adduce evidence before the Arbitration Court, thus ensuring that the allegation raised of a fair opportunity having not been given to the delinquent could be rectified atleast before the Arbitration Court. Both the employer and the employee filed writ appeals, which were disposed of by the common judgment, in which we called for a writ petition filed by the employee challenging the invalidity of the memo of charges;
which was also disposed of by the common judgment.
3. We found that the memo of charges was issued by the Disciplinary Sub-Committee, while the appointing authority was the Managing Committee. Kodanchery Service Co-operative Bank Ltd. v. Joshy Varghese [2020 (4) KLT 129] found that only an appointing authority can issue a memo of charges. The enquiry, hence, stood vitiated by reason of the subsequent declaration of law by this Court. We held so and directed the enquiry to be commenced from the stage at which the enquiry was found to have been vitiated. Liberty was granted to the employer to consider the objections to the show- cause notice filed by the employee and either accept the objections, dropping the proceedings, or issue a fresh memo of charges. We also directed that the period when the delinquent employee stood terminated shall be considered as spent on service and the entire benefits due to her shall be paid within a period of one month. The review is filed only as against the direction to pay the back wages. As of now, the employee is reinstated in service, a fresh memo of charges issued and the delinquent placed under suspension.
4. Sri.Arjun Raghavan, learned Counsel appearing for the employer Society, would place reliance on the decision in Chairman-cum-M.D., Coal India Ltd. v. Ananta Saha [(2011) 5 SCC 142], wherein it is held that the question of back wages should be determined by the Disciplinary Authority in accordance with law, only on the conclusion of the fresh enquiry, especially when it is the settled law that if the enquiry ends in a termination, the same would relate back to the date of the earlier termination; when de novo proceedings are directed by a judicial forum. It is also argued that if a binding precedent was not noticed, it is a self evident error as has been spoken of in State of Rajasthan v. Surendra Mohnot [(2014) 14 SCC 77].
5. Sri.Jelson P.Edumpadam, the learned Counsel appearing for the respondent employee, however would resist the review petition placing reliance on Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya [(2013) 10 SCC 324], wherein it has been declared that when the employer acts in gross violation of the statutory provision or gives short shrift to principles of natural justice or is guilty of having victimized the employee, then the Court or Tribunal would be fully justified in directing payment of full back wages. It is asserted that, termination is a definite consequence in the de novo enq
