WP(C) NO. 20194 OF 2024 1 2025:KER:29203 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE D. K. SINGH WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947 WP(C) NO. 20194 OF 2024 PETITIONER: NEETHU RAJAN AGED 33 YEARS W/O SHINU, PARAKAL HOUSE, PUTHUPADY P.O, PUTHUPADY.MULAVOOR KAVALAM, MUVATTUPUZHA, ERNAKULUM DIST., PIN - 686673 BY ADVS. P.M.RAFEEK RADHIKA V.R. RESPONDENTS: 1 THE STATE OF KERALA REPRESENTED BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 650014 2 THE REGISTRAR (GENERAL) OFFICE OF THE REGISTRAR OF COOPERATIVE SOCIETIES,JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION,THYCAUD P.O, THIRUVANANTHAPURAM, PIN - 695014 3 THE JOINT REGISTRAR (GENERAL) JOINT REGISTRAR OFFICE, CIVIL STATION, THRIKAKARA, KAKKANAD, ERNAKULUM DISTRICT, PIN - 682030 4 THE ASSISTANT REGISTRAR (GENERAL) ASSISTANT REGISTRAR OFFICE (GENERAL) MUVATTUPUZHA P.O, MUVATTUPUZHA, PIN - 686673 5 MUVATTUPUZHA CHERUKIDA VYAPARI COOPERATIVE SOCIETY LTD. NO- 1289 ARYANKALA COMPLEX, MARKET P .O, MUVATTUPUZHA REPRESENTED BY ITS SECRETARY., PIN - 686673 WP(C) NO. 20194 OF 2024 2 2025:KER:29203 6 THE SECRETARY MUVATTUPUZHA CHERUKIDA VYAPARI COOPERATIVE SOCIETY LTD NO- 1289,ARYANKALA COMPLEX, MARKET P.O, MUVATTUPUZHA,REPRESENTED BY ITS SECRETARY., PIN - 686673 7 THE PRESIDENT MUVATTUPUZHA CHERUKIDA VYAPARI COOPERATIVE SOCIETY LTD NO- 1289, ARYANKALA COMPLEX, MARKET P.O, MUVATTUPUZHA, REPRESENTED BY ITS SECRETARY., PIN - 686673 BY ADVS. P.P.JACOB T.P.GOPAKUMAR(K/233/2008) BIMAL K. NATH-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 20194 OF 2024 3 2025:KER:29203 JUDGMENT The petitioner was selected and appointed in the respondent society from 01.12.2016 as Attender. 2. The petitioner‘s probation was extended after one year. During her extended period of probation, she was issued with a notice dated 03.09.2018, placing her under suspension. Vide communication dated 11.09.2018, on the basis of an enquiry, it was intimated to the petitioner that she had misappropriated a sum of Rs.2,79,690/- and she was asked to deposit the said sum to the society. The petitioner filed a detailed objection to the said demand notice dated 11.09.2018 denying the charge of misappropriation of Rs.2,79,690/- or any liability of her to make deposit of the said sum. The petitioner requested for reinstatement. However, when the request was denied, the petitioner filed an Arbitration Case before the Arbitration Court, Thiruvananthapuram, as ARC No.27/2019. The WP(C) NO. 20194 OF 2024 4 2025:KER:29203 Arbitration Court held that the respondent society failed to produce any document to show how the petitioner had misappropriated the sum as alleged. It was also said that no enquiry was conducted by the respondent society towards misappropriation, and did not file any compliant against the petitioner. It was further said that the petitioner was only an attender and cash, securities records, seal, etc, were to be handled by the Secretary/Manager and the petitioner was not the person who could have handled the cash transaction. In view thereof, the Arbitration Court allowed the Arbitration Case and directed the respondent society to reinstate the petitioner from the date of her suspension, i.e. 03.09.2018 and provide her all service benefits due to her from the date of her suspension. 3. Aggrieved by the said decision of the Arbitration Court, the society filed an Appeal No.1/2023, before the Kerala Co-operative Tribunal, Thiruvananthapuram. The Tribunal allowed the appeal only on the limited ground WP(C) NO. 20194 OF 2024 5 2025:KER:29203 that the petitioner who was dismissed from service vide order dated 16.02.2019 did not challenge the said order of dismissal and therefore, Arbitration Case against the suspension order would not be maintainable. 4. The learned counsel for the petitioner submits that as per Rule 184 of the Kerala Co-operative Societies Rules 1969, particularly, Sub Rule 3 of Rule 184 mandates prior approval from the Registrar/Joint Registrar for terminating the services of an employee, who is in probation. No such prior approval was taken by society before passing the order dated 16.02.2019 terminating the petitioner from the services. The submission of the learned counsel for the petitioner is that the order dated 16.02.2019 is non-est and it has been passed after the petitioner had filed the Arbitration Case. When the order of dismissal is a non-est, it would not make any difference whether the said order has been challenged or not. WP(C) NO. 20194 OF 2024 6 2025:KER:29203 5. The learned counsel for the respondent society submits that a criminal case has been filed against the petitioner for misappropriation of funds of the society, the police have investigated the offences, and a final report has been filed. The case is now pending trial before the competent criminal Court. It is further submitted that if the order of dismissal has not been challenged, the Arbitration Case against the order of suspension would not be maintainable and therefore, the Tribunal has correctly decided the case vide impugned order, which does not require any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India 6. I have considered the submissions. The petitioner's probation was not cleared, before she was placed under suspension vide order dated 03.09.2018. There was an allegation of misappropriation of funds by the petitioner, who was a probationer for the post of attender. When the enquiry was conducted by the WP(C) NO. 20194 OF 2024 7 2025:KER:29203 committee, the petitioner was not associated with the enquiry. The order of dismissal is admittedly without prior approval from the Registrar/Joint Registrar. Therefore, the order of dismissal dated 16.02.2019 is invalid. 7. The stand taken by the Joint Registrar that as a criminal case is pending against the petitioner, he cannot granted prior approval for dismissing the petitioner from service during probation is wholly incorrect view. The criminal case and disciplinary proceedings are two different aspects. The pendency of a criminal case would not come in the way of the respondent society for taking disciplinary action against the petitioner. 8. In view of the aforesaid facts, I am of the considered view that the Tribunal has conducted itself in improper manner holding that, as the order of dismissal was not challenged, the Arbitration Case against the suspension order was not maintainable WP(C) NO. 20194 OF 2024 8 2025:KER:29203 when the order of dismissal is an illegal and non-est order. In view thereof, the writ petition is allowed and the impugned order passed by the Tribunal is set aside. The respondent society, however, may pass a fresh order in accordance with the law. As a criminal case is pending against the petitioner, she cannot be reinstated in service until she is exonerated from the charge of misappropriation of funds. She also did not clear her probation before she was placed under suspension. Therefore, it would be open to the respondent society to pass a fresh order after obtaining prior approval from the Registrar/Joint Registrar if it desires so. Sd/- D. K. SINGH AP JUDGE WP(C) NO. 20194 OF 2024 9 2025:KER:29203 APPENDIX OF WP(C) 20194/2024 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE SUSPENSION ORDER DATED 3/9/2018 Exhibit P2 A TRUE COPY OF THE DEMAND NOTICE DATED 11/9/2018 ISSUED BY THE 7TH RESPONDENT TO THE PETITIONER Exhibit P3 A TRUE COPY OF THE REPLY DATED 26/9/2018 SUBMITTED BY THE PETITIONER BEFORE THE COMMITTEE Exhibit P4 A TRUE COPY OF THE LETTER DATED 24/10/2018 ISSUED BY THE 7TH RESPONDENT TO THE PETITIONER Exhibit P5 A TRUE COPY OF THE REPRESENTATION DATED 17/12/2018 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT Exhibit P6 A TRUE COPY OF THE COMPLAINT DATED 24/9/2019 SUBMITTED BY THE HUSBAND TO THE VIGILANCE AND ANTI-CORRUPTION BUREAU, ERNAKULUM Exhibit P7 A TRUE COPY OF THE COMPLAINT DATED 15/10/2019 SUBMITTED BY THE HUSBAND TO THE 4TH RESPONDENT Exhibit P8 A TRUE COPY OF THE REQUEST LETTER DATED 31/1/2019 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT Exhibit P9 A TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER DATED 8/11/2018 Exhibit P10 THE PROCEEDINGS DATED NIL OF THE ENQUIRY COMMISSION Exhibit P11 THE REPLY GIVEN BY THE PETITIONER TO THE ENQUIRY COMMISSION DATED NIL. Exhibit P12 A TRUE COPY OF THE LETTER DATED 16/2/2019 Exhibit P13 A TRUE COPY OF THE PLAINT DATED 12/03/2019 SUBMITTED BY THE PETITIONER BEFORE THE COOPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM Exhibit P14 A TRUE COPY OF THE OBJECTION FILED BY THE 5TH RESPONDENT DATED 16/5//2019 WP(C) NO. 20194 OF 2024 10 2025:KER:29203 Exhibit P15 A TRUE COPY OF THE JUDGMENT DATED 5/4/2019 IN W P (C) NO.8612/2019 OF THE HONOURABLE HIGH COURT OF KERALA Exhibit P16 A TRUE COPY OF THE AWARD DATED 27/10/2022 PASSED BY THE COOPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM IN A.R.C. NO. 27/2019 Exhibit P17 A TRUE COPY OF THE JUDGMENT DATED 30/12/2023 OF THE CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM RESPONDENT EXHIBITS EXHIBIT R5(H) TRUE PHOTO COPY OF THE 5TH AND 20TH PAGE OF THE AUDIT CERTIFICATE INCLUDED IN PART A OF SUMMARY OF DEFECTS FOR THE YEAR 2018-2019 EXHIBIT R5(G) TRUE PHOTO COPY OF THE 5TH PAGE FOR THE AUDIT CERTIFICATE INCLUDED IN PART A SUMMARY OF DEFECTS FOR THE YEAR 2017-2018 EXHIBIT R5(A) TRUE PHOTO COPY OF THE COVERING LETTER DATED 06- 02-2019 TOGETHER WITH COMMITTEE RESOLUTION 4 DATED 05-02-2019 EXHIBIT R5(C) TRUE PHOTO COPY OF THE FIR DATED 20-03-2021 FILED BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT MOOVATTUPUZHA EXHIBIT R5(B) TRUE PHOTO COPY OF THE COMPLAINT FILED BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT MOOVATTUPUZHA DATED 8-03-2021 EXHIBIT R5(E) TRUE PHOTO COPY OF THE REMINDER FILED BEFORE THE 3RD RESPONDENT THROUGH THE 4TH RESPONDENT DATED 20-11-2022 EXHIBIT R5(D) TRUE PHOTO COPY OF THE REMINDER FILED BEFORE THE 3RD RESPONDENT THROUGH THE 4TH RESPONDENT DATED 20-02-2019 EXHIBIT R5(F) TRUE PHOTO COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT VIDE NO.HM(1 )436/2023 DATED 25-07- 2023