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P.B. Biju v/s The Managing Committee of The Vayyattupuzha Service Co-Operative Bank, Ltd No. Q 354, Represented by Its President, Pathanamthitta District & Others


Company & Directors' Information:- B S AND SERVICE PRIVATE LIMITED [Active] CIN = U92419MH1946PTC004912

Company & Directors' Information:- CO-OPERATIVE COMPANY LIMITED [Active] CIN = U51226DL1910PLC299886

Company & Directors' Information:- CO-OPERATIVE COMPANY LIMITED [Active] CIN = U51226UP1910PLC000093

Company & Directors' Information:- PB INDIA PRIVATE LIMITED [Active] CIN = U17120DL2013PTC253398

Company & Directors' Information:- OPERATIVE INDIA PRIVATE LIMITED [Active] CIN = U74300KA2008FTC048079

Company & Directors' Information:- SERVICE CORPORATION LIMITED [Dissolved] CIN = U93090KL1946PLC001075

    WP(C). No. 3228 of 2020 (C)

    Decided On, 17 March 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE A.K. JAYASANKARAN NAMBIAR

    For the Petitioner: P.N. Mohanan, Advocate. For the Respondents: C.S. Sheeja, Sr. GP., R2, M. Sasindran, Advocate.



Judgment Text


1. The petitioner, who was suspended from service on 01/02/2019 while working as a Senior Clerk, has approached this Court aggrieved by the continued suspension that he is subjected to, notwithstanding the expiry of a period of one year from the date of initial suspension. In the writ petition, it is his case that while he was initially suspended for a period of six months from 01/02/2019 to 31/07/2019, and subsequently for a further period of six months from 01/08/2019 to 01/02/2020, he was continued to be placed under suspension even thereafter, without the respondent Bank having obtained the prior permission for continuing the suspension, as mandated under Rule 198(6) of the Kerala Co-operative Societies Rules. It is his further case in the writ petition that he has also not been granted the subsistence allowance due to him for the period that he was kept under suspension.

2. A counter affidavit has been filed on behalf of the 2nd respondent Bank wherein the stand taken is that the petitioner was initially suspended for a period of six months from 01/02/2019 and thereafter, through a fresh resolution taken by the Bank, the suspension period was extended by a further period of six months, which ended on 01/02/2020. Even before the completion of the second period of suspension, the respondent Bank by its decision dated 26/12/2019, resolved to seek permission from the Joint Registrar for continuing the suspension beyond the period of one year. The request of the respondent Bank, based on the decision taken on 26/12/2019, was considered by the Joint Registrar of Co-operative Societies, who, vide communication dated 29/01/2020, recommended the grant of approval for the continued suspension of the petitioner with effect from 01/02/2020 for a further period of six months, and forwarded the said letter to the Registrar of Cooperative Societies, who, by Ext.P9 order dated 10/02/2020, granted approval for continuing the petitioner under suspension for six months from 01/02/2020.

3. Responding to the contentions of the petitioner in the writ petition, it is the stand of the learned Standing Counsel for the respondent Bank that inasmuch as the Bank had sought for prior approval to keep the petitioner under suspension for a further period of six months from 01/02/2020, through a decision taken on 26/12/2019, which was forwarded to the Joint Registrar well before the expiry of the period of the earlier suspension, the subsequent grant of approval by the Registrar, pursuant to the recommendation made by the Joint Registrar, should be seen as relatable to the date of request for approval sought for by the Bank, and when so viewed, the approval granted has to be seen as a prior approval of the Registrar to the proposal of the respondent Bank to keep the petitioner under suspension for a continuous period exceeding one year. As regards the contention of the petitioner for payment of subsistence allowance, reference is made to the provisions of the Payment of Subsistence Allowance Act, which are applicable to the respondent Bank, to point out that when it is found that the petitioner was under gainful employment during the period of suspension, there is no obligation on the employer to pay any subsistence allowance in terms of the Act. The respondent relies on Ext.R2(b) reply obtained to queries under the Right to Information Act, which clearly indicate that the petitioner was employed as a lottery agent during the period of suspension, and had also obtained income through the said employment during the period of suspension. The said documents are relied upon to deny the claim for subsistence allowance raised by the petitioner in the writ petition.

4. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Bank. I have also heard the learned Government Pleader for the official respondents of the State.

5. On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I find force in the contention of the learned counsel for the respondent Bank that the requirement of obtaining a prior approval of the Registrar, for keeping an employee under suspension for a continuous period exceeding one year, must be seen as requiring the employer concerned to take the necessary steps for obtaining the approval of the Registrar before the end of the period of one year of continuous suspension of the employee. In other words, in cases where an employer has already taken a decision to keep an employee under suspension for a period beyond one year, and the necessary approval of the Registrar has been sought well before the expiry of the period of one year of continued suspension, then the mere fact that the Registrar had passed an order of approval, on the request of the employer, beyond the date on which the period of one year of suspension ended, cannot be a reason to hold that there was no prior approval of the Registrar to the continued suspension of the employee beyond the one year period. On the facts of the instant case, I find that the employer had taken all steps for obtaining the approval of the Registrar, well before the expiry of the period of one year of continuous suspension of the writ petitioner, and while the Joint Registrar had recommended for the grant of approval to the proposal submitted by the employer, it was the Registrar who ultimately took the decision in Ext.P9 order dated 10/02/2020. In my view, the said order of the Registrar should relate back to the date of application by the employer for prior approval of the Registrar, and the approval, when granted, should relate back to the date when the request for approval was made, and consequently be seen as one that was obtained prior to the culmination of the period of one year of continuous suspension for the purposes of Rule 198(6) of the Co-operative Societies Rules.

6. Coming next to the issue of grant of subsistence allowance to the petitioner during the period he was kept under suspension, I once again find force in the submission of the learned counsel for the respondent Bank that the provisions of the Payment of Subsistence Allowance Act clearly provide for a situation where subsistence allowance need not be paid to the employee, when the employee is found to be in gainful employment during the period of suspension. The documents produced by the respondent Bank along with its counter affidavit clearly indicate that the petitioner was functioning as a lottery agent, and thus gainfully employed during

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the period of suspension. The petitioner, therefore, has not made out a case for getting the subsistence allowance during the period when he was continued under suspension by the respondent Bank. I also take note of the averment in the counter affidavit filed on behalf of the respondent Bank that the petitioner has now been charge sheeted in connection with fresh acts of misconduct, and that the respondent Bank had not chosen to issue a fresh suspension order solely on account of the fact that the earlier suspension imposed against the petitioner was in force. Thus, in any view of the matter, I find that the prayers sought for in the writ petition cannot be granted. The writ petition thus fails and is accordingly dismissed.
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