When Charge Memo Is Set Aside By Competent Forum, Then Suspension Order Dependent On It Also Ceases To Have Force Of Law: Kerala High Court

The Kerala High Court on Tuesday observed that once the charge memo issued to a delinquent employee is set aside by a competent forum, the suspension order that is dependent on it also ceases to have force of law. 

Division Bench consisting of Justice A. K. Jayasankaran Nambiar and Justice Mohammed Nias C. P.  observed that when the memo of charges is set aside, then there exists no enquiry in the eye of the law and thus, the employee must be deemed to be in service without any proceedings till the issuance of fresh proceedings, if any. Therefore, the employee is also entitled to the salary and other benefits for the said period.

A suspension order cannot exist independent of a charge memo, whether issued simultaneously or within a reasonable time thereafter. On the charge memo being set aside by a competent forum, the suspension order that is dependent on it also ceases to have force in law.

Brief Factual Matrix 

Writ Petitioner, who worked as the secretary of Puduppadi Service Co-operative Bank Ltd. (3rd respondent), had applied for leave without allowance from August 2009 to August 2014. Even though the Writ Petitioner had to rejoin, he was unable to rejoin as he was bedridden and sought some more time to rejoin duty which the petitioner alleges was granted by the president. However, the Society issued a show cause notice and charge sheet against the writ petitioner. The Registrar of Co-operative Societies, set aside the charge memo and all other proceedings. 

The Writ petitioner was subsequently suspended from service with effect from 13.04.2015, and a second charge memo was issued, which after an enquiry, culminated in the petitioner's dismissal.  Though the appeal challenging the dismissal was rejected by the Managing Committee, the Co-operative Arbitration Court set aside all the disciplinary proceedings against the petitioner. The order passed by the Co-operative Arbitration Court became final and was accepted by the Society. An order of suspension, and a charge memo was again issued.

The Writ petitioner, based on the ground that the Society accepted the order passed by the Arbitration Court, therefore, was bound to pay the salary and other benefits from the date of his initial suspension onwards, challenged the suspension order and also sought for a direction to disburse all monetary benefits due to him from 3.11. 2014 and also for an expeditious culmination of the enquiry proceedings. 

The Single Judge had held that the entire disciplinary proceedings had been invalidated, including the charge memo and therefore, directed the Society to hear the petitioner and decide upon the claim of arrears of salary. The Single Judge also directed the society to pay the petitioner an eligible subsistence allowance for placing him under suspension and also the completion of disciplinary proceedings within four months.

Before the Division Bench 

Aggrieved by the direction of the Single Judge in not directing the society to disburse the salary and instead only directing them to consider his claim, the employee (writ petitioner) preferred an appeal. The impugned order was challenged by the Society contending that the petitioner cannot be given the salary or other benefits as the charge levelled against him is unauthorised absence. 

Counsel appearing for the employee, Advocate Navneeth Krishnan, submitted that since the earlier proceedings have been set aside by the order passed by the Arbitration Court and which has been accepted by the Society by initiating fresh proceedings, the employee is entitled to the salary till the issuance of the subsequent suspension order. The Counsel contended that the effect of the earlier disciplinary proceedings being invalidated and the charge memo itself being quashed must be taken that there were no proceedings against the petitioner till the issuance of the charge memo and suspension order subsequent to the order passed by the Arbitration Court. 

In the Writ Appeal moved by the Society, the Counsel appearing for the Appellant, Advocate M. Sasindran, contended that the Single Judge had erred in directing the Society to consider the claim for salary of the employee as he was unauthorisedly absent from 2014 onwards. The Counsel further contended that the earlier disciplinary proceedings initiated were set aside on technical grounds, and the first order of suspension even now stands, and in such a situation, the petitioner cannot be held entitled to any benefits till the culmination of the enquiry wherein the claim for back wages would be considered and not before.

The Court, after considering the contentions raised by the Counsels, siding with the observation of the Single Judge bench, observed that since it is undisputed that by the order passed by the Co-operative Arbitration Court, the entire disciplinary proceedings were invalidated, including the charge-memo, it cannot be understood as if the Arbitration Court had remitted the same disciplinary action for being pursued by the Society, after it had already declared their action invalid. Thereby, the Court rejected the contention raised by the Society that the charge memo and the action taken subsequent to the order passed by the Arbitration Court have been taken as the continuation of the earlier initiated disciplinary action.

Relying on the previous decision of the High Court in Kodencherry Service Co-operative Bank Limited v. Joshy Varghese, in which it was held that when the enquiry itself is invalidated, only fresh proceedings can be initiated, the Court opined that in the present case as well the memo of charges and the further proceedings are found to be invalid.

The Court, rejecting the contention of the Society that the suspension order passed at the first instance survives even after the charge memo simultaneously issued stands invalidated; observed that a suspension order cannot exist independent of a charge memo, whether issued simultaneously or within a reasonable time thereafter.

Rejecting the contention of the Society that once an enquiry is set aside on technical grounds, liberty should be given to start from the point where the illegality occurred, the Court said that such a contention cannot apply to cases where the enquiry itself was by a body which did not have the authority to commence disciplinary action.

Thereby, the Court held that valid disciplinary proceedings commenced only after the issuance of the charge memo and suspension order issued subsequent to the order of the Arbitration Court and, as a consequence, held the employee is entitled to the salary up to the issuance of the charge memo.

The Court observed that the direction of the Single Judge in the impugned order to consider the payment of salary is illegal as the question of back wages is to be considered by the disciplinary authority taking into account of various factors, and it happens only after the culmination of the enquiry. The Court thereby set aside the impugned judgement so far as it refused to direct the Society. 

The Court pointed out that after 2015, it was the employer who prevented the employee from resuming duty by passing orders of suspension, which were successfully challenged by the employee. It observed that in such circumstances, the employee must be deemed to be in service without any proceedings against him, till the issuance of the charge memo and suspension order issued after the Arbitration Court order was passed. 

The Court, thereby, partially allowed the order holding that the employee is entitled to salary till issuance of the charge memo and suspension order issued after the Arbitration Court order was passed and by directing the Society to disburse the said amounts to the appellant within an outer time limit of one month from today.

Case Title: Mathew Joseph v. The Registrar of Co-operative Societies & Ors.

Citation: 2022 LiveLaw(Ker) 551

Click Here To Read/Download The Order