JUDGMENT
Koshy, J.
1. Appellants took disciplinary action against the first respondent herein who was the Secretary of the first appellant Society. The first respondent was appointed as Secretary in the year 1978 by direct recruitment. As per Ext. P3 memo of charges, disciplinary proceedings were initiated. By Ext. P2 order punishment of reversion was imposed. Against Ext.P2 order first respondent filed a writ petition, O.P. No. 15392 of 2000, before this Court. Following the decision of the Supreme Court in Hussain Sasansaheb Kaladgi v. State of Maharashtra (AIR 1987 SC 1627) that a direct recruitee cannot be reverted to a lower post, his reversion was cancelled, but directed the employee to file statutory appeal. In Ext.P10 judgment in O.P. No. 15392 of 2000 this Court held as follows:
“… It will be open to the appellate authority to substitute the punishment imposed to any other punishment as contemplated under Rule 198(1) of the Kerala Co-operative Societies Rules.”
While disposing of the above original petition, this Court also directed that the appeal will be heard and disposed of by the Board of Management excluding the President and members of the sub-committee concerned. The above judgment was affirmed by the Division Bench by Ext.P11 judgment and matter has became final. Thereafter, Exts.P13 and P14 appeals were filed against the order of reversion by third parties for enhancing the punishment and dismissing the first respondent from service. Apart from the fat that the above appeals were filed out of time, they have no right to file an appeal also. Rule 198(5) of the Kerala Co-operative Societies Rules (hereinafter referred to as ‘the Rules’) provides as follows:
“198. Disciplinary Action:-
…..
(5) No appeal shall be entertained if it is not preferred within a period of three months from the date of the order imposing the penalty.”
No statutory right is given under the Co-operative Societies Act or Rules to file appeal by a third party against the punishment imposed on an employee. There is no automatic right of appeal. Right of appeal is provided under Rule 198(4) against orders imposing penalty and it should be filed within the time prescribed under Rule 198(5). Therefore, we agree fully with the learned Single Judge (Kurian Joseph, J.) in the following observations:
“…There is no provision under the Rules enabling any person interested to file an appeal. The aggrieved party is only the employee concerned and in that restricted provision of an appeal third parties have no locus standi to file an appeal. Appeal is only a statutory remedy and it can be invoked only as provided under the statute. Moreover, this court also permitted only the petitioner to invoke the statutory appeal and that alone was directed to be considered also.”
Therefore, those appeals are not maintainable. In an appeal filed by an employee what can be done is either to confirm the punishment or to reduce the punishment and it is settled law that unless there are special provisions in the Service Rules, appellate authority cannot enhance the punishment.
2. Learned Single Judge also found that there was no quorum for the Board, which decided the appeal filed by the employee as directed by this Court. The number of Board members are admittedly 9. But when the Board decided the appeal only three members were present. The quorum under Section 28(5) of the Kerala Co-operative Societies Act is 50% of the total number of members of the committee. The explanation of the appellant is that three members were members of the disciplinary committee, that excluding three members the balance is only six and, therefore, three members constituted the quorum. But Section 28(5) provides quorum as 50% of the total number of members of the committee. That means minimum five members should be present in the meeting. Therefore, there was no quorum for the meeting. On that reason also appellate decision is liable to be set aside. The above matter was dealt with by the learned Judge as follows:
“4. On the quorum it is not in dispute that it is just above fifty percent of the total number of members of the committee. Under Rule 198 of the Kerala Co-operative Societies Rules the appellate authority is the Board of Management, the committee. True the members of the disciplinary committee are not entitled to participate when an appeal is considered. But that does not mean that number of members of the committee is to be taken as the number as reduced by the number of the sub committee members. Number of the committee remains the same, namely in the instant case 9 and hence the quorum will have to be understood as against the number of the committee and not the number of the members available and permissible for considering a matter in appeal. The number of members is 9 and hence there must be atleast 5. Admittedly, there were only three when the matter was considered. The contention of the society is that as per Ext.P10 judgment this Court had directed the exclusion of the President and two members in the sub committee and the remaining being 6, fifty per cent constituted 3 and hence there was quorum. I am afraid the contention cannot be accepted. The statutory requirement of quorum is just above fifty per cent of the total number of the committee. Section 28(5) of the Kerala Co-operative Societies Act is unambiguous.
“(5) The quorum for a meeting of a committee shall be such number of members just above fifty per cent of the total number of members of that committee.”
Hence the fifty per cent should be taken as against the number of the committee and not against the number of members after excluding the sub committee members.”
We are in perfect agreement with the above view.
3. The punishment are enumerated in Rule 198(1) of the Rules which reads as follows:
“198. Disciplinary Action:- (1) Any member of the establishment of a Co-operative Society may, for good and sufficient reasons, be punished by imposing any of the following penalties, namely:-
(a) Censure;
(b) fine (in the case of employees in the last grade);
(c) Withholding of increments with or without cumulative effect.
(d) Withholding of promotion;
(e) Recovery from pay of the whole or part of any pecuniary loss caused to the society, by negligence or breach of orders or otherwise;
(f) Reduction to a lower rank;
(g) Compulsory retirement;
(h) Dismissal from service.”
The disciplinary committee found that a lenient view should be taken and punishment imposed was reversion to a lower rank instead of more serious punishment like dismissal or compulsory retirement. In an appeal by the employee, punishment can be confirmed or reduced. But the Appellate committee enhanced the punishment to compulsory retirement which they are incompetent to do. Therefore, the order of the Appellate Board was set aside by the learned Single Judge correctly.
4. In the appeal memorandum it is contended that no writ will lie against a society. But this contention is no more possible in view of the decision of the Supreme Court in U.P. State Cooperative Land Development Bank Ltd. v. Chandra Bhan Dubey and Ors. ((1999) 1 SC 741). Service conditions of the employees of the appellant are statutory in nature and prescribed by Rule 198.
5. Another contention raised is that there is effective alternate remedy as respondent could have filed an appeal before the Registrar under Rule 176. Rule 176 reads as follows:
“176. Registrar’s power to rescind resolution:- Notwithstanding anything contained in the bye-laws of a registered society, it shall be competent for the Registrar to rescind any resolution of any meeting of any society or the committee of any society, if it appears to him that such resolution is ultra vires of the objects of the society, or is against the provisions of the Act, Rules. Bye-laws or of any direction or instructions issued by the Department, or calculated to disturb the peaceful and orderly working of the society or is contrary to the better interest of the society.”
It was held by a Division Bench of this Court in Trivandrum Co-op. Urban Bank Ltd. v. Jt. Registrar of Co-op. Societies (2001 (1) KLT 99) (judgment by Justice K.S. Radhakrishnan) that only if the resolution is passed against the objects of the society or violating express provisions of the Act and Rules, Registrar can interfere in disciplinary proceedings under Rule 176. The matter was earlier considered by another Division Bench (one of us was a party) in Parappuram Milk Production Co-op. Society v. Dy. Director (1999 (1) KLT 121) that Registrar cannot interfere usually with disciplinary proceedings except for the specific reasons mentioned in Rule 176. Therefore, writ petition cannot be dismissed on the ground of existence of alternate remedy.
6. It was contended that only very limited punishments are mentioned in Rule 198 and since Secretary was holding a reputed post, punishment should left to be decided by the employer. It has been held by the Supreme Court in Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut (AIR 1984 SC 505) as well as in A.L. Kalra v. Project & Equipment Corporation of India Ltd. (1984 II LLJ 186) that when misconducts and punishment are enumerated and procedure for disciplinary actions are enumerated in the Service Rules, employer is bound to follow that and it cannot be left to the vagories of the employer. Therefore, only punishment mentioned in Rule 198 can be imposed. In an appeal filed by an employee punishment should be enhanced in the absence of enabling provision in the Rules even if the punishment already imposed cannot be confirmed. Employee should not be put to more disadvantage by filing an appeal.
7. It is submitted by the appellant that learned Single Judge went wrong in setting aside the order of the appellate authority as ‘punishment’ is a matter to be decided by the Management and under the guise of judicial review, Court cannot sit in appeal. Learned Single Judge did not reappraise the evidence or considered the correctness of the punishment. Here disciplinary committee found him guilty and found that even though misconduct proved are grave, punishment of dismissal or compulsory retirement need not be imposed. Disciplinary authority imposed a punishment of reversion. Since he cannot be reverted to a post lower than the original post, that punishment was set aside by this Court as ultravires, but directed the employee to file statutory appeal. In appeal filed by the employee, harsher punishment was imposed without authority. In judicial review Court is concerned with legality of the order challenged. Since Appellate Authority has no power to enhance the punishment, the order is ultravires and illegal and in excess of jurisdiction. Hence the matter has to be reconsidered by the Appellate Authority itself according to law. The power of judicial review was correctly exercised by the learned Single Judge.
8. In the above circumstances, we agree with the learned Single Judge in setting aside the impugned order. It is also submitted that since Secretary is enjoying a key position, society should be allowed to keep him out of work as Secretary. But we note that he was employed from 1978 and for more than twenty years he was working in that post. This is the first proved charge sheet against him and imposing minor punishment for the first offence is also in accordance with the general provisions of the service law. In fact, disciplinary committee itself was of the view that a lenient view should be taken. He was suspended from service on 29.7.1999. More than three years he is under suspension. Since he can be given only a punishment lesser than the punishment of reversion, he should be reinstated forthwith and appeal should be considered according to law. It is submitted that appeal was heard. Therefore, orders should be passed by the Appellate Authority expeditiously in accordance with law.
The Writ Appeal is disposed of accordingly.