Cooperative Societies Act - Disciplinary Sub Committee Not Competent To Issue Memo Of Charges In Departmental Enquiries: Kerala High Court

The Kerala High Court while deciding a writ petition recently observed that the jurisdiction of issuing memo of charges is vested with the Managing Committee of the Society which cannot further be delegated to a Disciplinary Sub Committee in a departmental enquiry. Justice Sunil Thomas while delivering the judgment observed that the Sub Committee is only vested with the power of conducting a domestic enquiry, and any action beyond this realm was without jurisdiction. The petitioner Krishna Kumar K. R was a Senior Clerk in the respondent Bank. On 28th March 2019, the Bank Secretary issued him a notice of suspension pursuant to the decision of the Managing Committee, alleging that he had misappropriated huge amounts from the bank. Subsequently, the Chairman of the Disciplinary Sub Committee issued a show cause notice and a memo of charges to the petitioner, calling him upon to reply. As a result, the petitioner submitted a reply answering the allegations within the prescribed time. Thereafter, the Disciplinary Committee appointed for the matter conducted an enquiry and found him guilty. Accordingly, after issuance of a show cause notice, he was terminated from service by the Disciplinary Sub Committee. Adv. B. S. Swathi Kumar while appearing on behalf of the petitioner submitted that the Disciplinary Sub Committee had no jurisdiction to issue a memo of charges. Reliance was placed on the provisions of the statute to show that the Managing Committee alone was competent to issue the same. Similarly, it was argued that pursuant to the ex parte domestic enquiry, he was terminated by the Disciplinary Sub Committee and not by the Managing Committee. The petition also brought about a contention that a copy of the Domestic Enquiry Report was not furnished to him which violated his right to effectively reply to the findings in the enquiry. The respondents objected the writ petition on the ground that it was filed during the pendency of a statutory appeal before the concerned authority. Therefore, it was alleged that a parallel proceeding through the petition was not maintainable. To this the petitioner responded that the petition was filed assailing his termination on the legal question of whether memo of charges could be issued by the Disciplinary Sub Committee. Since it was a pure question of law not involving any enquiry on factual premise, it was argued that he was entitled to challenge it in a writ petition. Justice Sunil Thomas found the petitioner's argument to be well grounded, and established that the writ petition was sustainable. The Bench enunciated that since it dealt with a strict legal question, there was no illegality in considering the petition. Upon scrutiny of the matter, the Court noticed that the primary question in the matter was whether the Disciplinary Sub Committee was competent to issue memo of charges. The Kerala High Court had previously pronounced two decisions answering an identical question whereby it was observed that the mandate under Rule 198(2) of the Kerala Cooperative Society Rules to take action against an employee was vested with the Managing Committee. No power was conferred upon the Managing Committee to delegate this power to a Sub Committee. This conclusion was drawn from the fact that the Managing Committee was entrusted with the power to manage the affairs of the society, and is the delegate of the general body. Therefore, they could not delegate their functions in the absence of byelaws or statutory provisions to that effect. Hence, after perusal of the law and relevant decisions, the Single Judge held as follows: "The jurisdiction of issuing memo of charges is vested with the Managing Committee of the Society which cannot further be delegated to a Disciplinary Sub Committee. The Sub Committee is vested with the power only of conducting a domestic enquiry. In the case at hand, it seems that the memo of charges was issued by and after the conclusion of the enquiry, show cause notice was issued by the Disciplinary Sub Committee which itself issued the termination order. This seems to be without any jurisdiction." Accordingly, the writ petition was allowed and the petitioner was directed to be restored to his position and be made entitled to the subsistence allowance in accordance with the Rules. However, it was clarified that this judgment will not preclude the bank from issuing a fresh memo of charges in accordance with law and to proceed against the writ petitioner, if so advised. Title: Krishna Kumar K. R. vs. Brahmamangalam Gramaswaraj Service Co-Operative Bank Ltd.Click Here To Download/Read Judgment

Cooperative Societies Act - Disciplinary Sub Committee Not Competent To Issue Memo Of Charges In Departmental Enquiries: Kerala High Court

Hannah M Varghese

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