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Judgment
Devan Ramachandran, J.
We are required to be circumspect and concise in what we record in this judgment for the reason, inter alia, that the controversy in these cases has lost much of its thrust by efflux of time and intervening developments.
The Appeal afore is filed by the Thiruvalla East Co-operative Bank Ltd. (‘Bank’, for short) – which is a Society incorporated under the provisions of the Kerala Co-operative Societies Act, 1969 (‘KCS Act’, for short) – against the judgment of a learned Single Judge of this Court in W.P(C)No. 25123/2021.
The said Writ Petition was filed by Smt.K.J.Amminijutty -the then Chief Executive Officer (‘CEO’) of the Bank, since she was placed under suspension for certain alleged misdemeanors. The Writ Petition was allowed by the learned Single Judge; and the ‘Bank’ assails the judgment on various grounds.
While so, the services of Smt.K.J.Amminikutty was terminated by the Bank, through their order dated 19.12.2022; which has been challenged by her through W.P(C)No.2093/2023, producing the said order as Ext.P14 therein.
Since the issues involved in these cases are identical and the considerations are sure to overlap, the Hon’ble Chief Justice has ordered that both these matters be heard by this Bench; and we consequently, proceed to dispose them of through this judgment.
We have heard Sri.Pradeep – learned Standing Counsel for the Bank and Sri.Alen Varghese Kurien – learned counsel appearing for Smt.K.J.Amminikutty (who will hereinafter be referred to as the “writ petitioner” for ease).
The writ petitioner was appointed as their “CEO” by the ‘Bank’, through Ext.P18 order of appointment dated 22.07.2021. The said letter mentions that the ‘Bank’ has obtained the approval of the Reserve Bank of India (RBI) in doing so; and the said approval, dated 29.06.2020, has been produced as Ext.R1(b), along with W.P(C)No.2093/2023.
The ‘RBI’, however, is seen to have granted approval with a specific condition precedent, namely, that the Bank produce before it a resolution approved by its AGM/Special AGM, recommending the appointment of the ‘CEO’, within a period of six months from the date of the said letter, namely, on or before 28.12.2020.
It transpires that the appointment of the writ petitioner as the ‘CEO” was earlier challenged in W.P(C)No.25123/2021; and that, subsequent to it being dismissed, letters appear to have been issued by the ‘Bank’ to the ‘RBI’ in July and August 2021; which led to their response dated 27.08.2021 – Ext.R1(c) in W.P(C)No.2093/2023 – directing them to await their further advice in the matter because, the ‘Bank’ had not produced before them the resolution from its General Body and accusing them of nevertheless having appointed the writ petitioner as ‘CEO’, with effect from 01.08.2021.
However, subsequently, the relationship between the writ petitioner and the ‘Bank’ soured, and this led to various allegations being levelled against her. It was in such circumstances that the writ petitioner was sought to be suspended; and it finally led to the order dated 19.12.2022 terminating her, as said above.
Interestingly, Sri.Gopikrishnan Nambiar – learned Counsel for the Reserve Bank of India, submitted that his client has filed counter pleadings on record, averring that the appointment of the “CEO” by the Bank for the Bank was irregular and consequently illegal because, it was done without having obtained approval from his client. He explained that the first approval granted through Ext.R1(b) produced in W.P.(C) No.2093 of 2023, was not a final one, but only a conditional one; and that any appointment could have been done only after the condition mentioned in it had been satisfied. He added that, however, contrary to the specific mandate of his client, the Bank appointed the “CEO” through their letter dated 22.07.2021, to take effect from 01.08.2021; and hence that the same cannot, therefore, be reckoned to as per law. He concluded saying that, as far as the “RBI” is concerned, the appointment of the “CEO” was wholly illegal.
We started this judgment with the preface that there has been certain intervening developments, which has attenuated the impact of the issues in dispute; and it was with reference to the above stand of the “RBI”.
When the stand of the “RBI” is as afore, indubitably, this Court cannot even consider any relief to the writ petitioner, as has been sought for by her in W.P.(C) No.2093 of 2023, except to the extent of her challenge against the order of termination causing her stigma. What we mean is, even though the reasons for the termination can be called into question by the writ petitioner, she cannot now be granted any benefit of continuing in such position, when her initial appointment itself is irregular.
The germane question is how the Bank appointed the writ petitioner as their “CEO”, even without having obtained formal approval from the “RBI”; and at a time when they had not complied with the conditions attached to the conditional approval of the latter.
Sri.Pradeep – learned counsel for the Bank, explained that his clients were under the impression that formal approval would be granted by the “RBI” and therefore appointed the writ petitioner as their “CEO”; and went on to make a rather startling assertion that, even she was aware of the lack of approval, she being expected to know so, as she was appointed to the highest executive office.
It does not require us to say that, had the Bank employed adequate care, the appointment of the “CEO” could never have been done by them and there would have been no controversy as now projected. It is thus indubitable that, it is solely on account of the appointment having been made by the Bank without obtaining the approval of the “RBI”, that the situation has come to the pass as we now see.
But, there is an added problem in this case, namely, that the order of suspension, as also the order of termination, issued by the Bank against the writ petitioner, makes scathing allegations against her and certainly paints her in a bad light.
Pertinently, if the Bank were under the impression that the appointment of the writ petitioner as the “CEO” was wrong because, they had not obtained formal approval from the “RBI” – as is now asserted before us, then they could have terminated her without making any allegation. They, however chose to do so differently and to make accusations against the writ petitioner in a rather strong manner.
The response of the writ petitioner, therefore, cannot be faulted because, she is possibly now fighting more for her honour, than for the appointment.
Though we have stated the essential facts as afore, it becomes rather ineluctable that it would not require us to go into the merits of any of the allegations since, neither can the writ petitioner now hope to be appointed or to be continued; nor can she seek any further directions in view of the specific stand taken by the “RBI”. She certainly, however, can seek that all allegations against her be quashed by this Court.
The learned counsel for the writ petitioner adds that a month’s salary is still due to his client for the period she actually worked, and that she is also entitled to some kind of compensation/costs for having been dragged into these litigations for no fault that can be attributed to her. His specific assertion is that his client was under the bona fide impression, as was gathered from the order of her appointment dated 22.07.2021, that the Bank had obtained the formal approval of the “RBI” which is a condition precedent to make any such appointment.
There is force in the afore submissions because, whatever be the explanation that Sri.Pradeep may offer on behalf of the Bank, the fact remains that the order of appointment clearly says that the approval of the “RBI” had been obtained. This ineluctably is an incorrect statement and renders it plausible that the writ petitioner was guided by this, in accepting the appointment. To paraphrase, if she had known that the approval of the “RBI” has not been obtained, she may have exercised the choice of refusing the appointment at that time, or to wait until such approval has been granted.
Though we do not propose to enter into the legality or otherwise of the allegations made against the writ petitioner in the impugned orders, one thing is certain, she cannot be pilloried without a proper enquiry. Since our evaluation of the merits of the allegations would bare no benefit to the writ petitioner at this time, and because we notice that such have been made without causing proper enquires, we are left without doubt that all of them deserve to be expunged and removed from her credentials.
Since the writ petitioner has been subjected to prejudice solely by the actions of the Bank, we are of the view that she should be offered a suitable amount in compensation/severance; but not in castigation of the latter or their actions, but solely to secure the ends of justice.
In such circumstances,
W.P.(C) NO.2093 of 2023 is allowed in part; setting aside all allegations and insinuations against the writ petitioner – Smt.K.J.Amminikutty, as contained in Exhibit P14 therein. However, we clarify that she cannot seek re-appointment, or continue in the post of CEO of the Bank on account of non-availability of approval by the “RBI”. We further order that the Bank will pay her a sum of Rs.4,00,000/- (Rupees 1 lakh towards the salary for the month she actually served, and Rs.3 lakhs as severance amount) within a period of four months from the date of receipt of a copy of this judgment. This shall be done by the Bank, tendering to her a Pay Order/Demand Draft for the said amount, to her residential address mentioned in these cases by registered post.
W.A No.433 of 2022 is allowed and the impugned judgment is set aside; though clarifying that nothing that transpired during the life of the case would be re-opened, including that Smt.K.J.Amminikutty had worked in the position of “CEO” for a few months after the impugned orders. Further, all allegations and insinuations in Ext.P8 are also expunged.
APPENDIX OF WA NO. 433 OF 2022
RESPONDENT ANNEXURES
Annexure R1(a) A true copy of the Agreement signed by the Appellant Bank and the 1st Respondent dated 31/07/2021
APPENDIX OF WP(C) NO. 2093 OF 2023
PETITIONER EXHIBITS
Exhibit P 1 CIRCULAR OF THE RESERVE BANK IN NO. RBI/RBI/DOR (PCB) BPD.CIR.NO.8/12.05.002/2019-20, DATED 31/12/2019.
Exhibit P 2 CIRCULAR OF THE RESERVE BANK NO. RBI/2021-22/60 DOR.GOV.REC.25/12.10.000/2021-22, DATED 25/06/2021
Exhibit P 3 APPOINTMENT ORDER - APPOINTING THE PETITIONER AS CEO OF THE 1ST RESPONDENT BANK, DATED 22/07/2021.
Exhibit P 4 JUDGMENT OF HON'BLE HIGH COURT IN W.P (C) 25123/2021, DATED 23/11/2021
Exhibit P 5 CONFIDENTIAL REPLY /REPORT FILED BY THE PETITIONER TO THE 4TH RESPONDENT RESERVE BANK OF INDIA, DATED 04/08/2022, IN ANSWER TO THE NOTICE OF THE RESERVE BANK
Exhibit P 6 SHOW CAUSE NOTICE ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER, DATED 22/08/2022
Exhibit P 7 REPLY OF THE PETITIONER TO EXHIBIT P 6 SHOW CAUSE NOTICE OF THE 1ST RESPONDENT, DATED 29/08/2022
Exhibit P 8 NOTICE UNDER SECTION 36 AA OF THE BANKING REGULATION ACT 1949, BY THE RESERVE BANK OF INDIA, DATED 07/10/2022
Exhibit P 9 REPLY OF THE PETITIONER TO THE NOTICE OF THE RESERVE BANK OF INDIA UNDER SECTION 36AA OF THE BANKING REGULATION ACT 1949, DATED 21/10/2022
Exhibit P 10 NOTICE SENT BY THE 1ST RESPONDENT BANK TO THE PETITIONER ON 14/10/2022
Exhibit P 11 REPLY OF THE PETITIONER TO EXHIBIT P 10 NOTICE ISSUED BY THE 1ST RESPONDENT, DATED 25/10/2022
Exhibit P 12 COPY OF THE RESOLUTION NO.1 OF THE BOARD OF DIRECTORS OF THE 1ST RESPONDENT BANK TO TERMINATE THE PETITIONER FOR UNREASONABLE AND UNTENABLE GROUNDS, DATED 28/10/2022. THIS RESOLUTION WAS KEPT HIDDEN FROM THE PETITIONER AND WAS SERVED TO HER ONLY ON 19/12/2022. (EXHIBIT P 12 IS SUBMITTED WITH A READABLE COPY)
Exhibit P 13 NOTICE- ADVERTISEMENT OF ANNUAL GENERAL BODY WHICH DOES NOT CONTAIN AN AGENDA 'REMOVAL OR TERMINATION OF CEO' DATED 22/11/2022. (PRODUCED AND MARKED WITH A READABLE COPY IN MALAYALAM AND A TRANSLATION IN ENGLISH)
Exhibit P 14 TERMINATION ORDER ISSUED BY THE 1ST RESPONDENT BANK AGAINST THE PETITIONER DATED 19/12/2022
Exhibit P 15 PETITIONER'S EMAIL COMMUNICATION TO THE 2ND RESPONDENT REGARDING THE TERMINATION WITHOUT ANY NOTICE AND THE 2ND RESPONDENT'S REPLY THAT THE TERMINATION IS UPON THE DECISION OF THE GENERAL BODY. EMAIL COMMUNICATION DATED 21/12/2022
EXHIBIT P 16 NOTIFICATION PUBLISHED BY THE 1ST RESPONDENT CALLING FOR APPLICATIONS FOR THE APPOINTMENT OF NEW MANAGING DIRECTOR FOR THE 1ST RESPONDENT BANK. PUBLISHED IN DESHABHIMANI DAILY OF 24/01/2023
RESPONDENT EXHIBITS
Exhibit R1(a) The true extracted copy of the resolution dated 08.06.2020 selecting the petitioner as the CEO of the Bank
Exhibit R1(b) True copy of the conditional approval dated 29.06.2020 given by the RBI for the selection of the petitioner herein as the CEO
Exhibit R1(c) The true copy of the email communication of the RBI dated 27.08.2021
Exhibit R1(d) True copy of resolution No: 10 passed by the AGM held on 17.12.2022
PETITIONER EXHIBITS
Exhibit P17 A TRUE COPY OF THE AGREEMENT SIGNED BY THE BANK AND AND THE PETITIONER DATED 31/07/2021.
Exhibit P18 True printout of the Emil communication sent by the Petitioner to the 4th Respondent RBI, regarding the illegal freezing of the her bank account by the 1st Respondent Bank, dated 03/11/2022.
Exhibit P19 True printout of the Email communication -Reply of the 1st Respondent Bank to 4th Respondent RBI's direction to release Petitioner's Bank account dated 03/11/2022
Exhibit 20 True printout of the Email communication -Ultimatum from the 4th Respondent RBI, to the 1st Respondent Bank to release Petitioner's bank account with immediate effect, dated 04/11/2022.
Exhibit 21 True printout of the Email communication -Advisory No. 14/2022, sent by the 4th Respondent RBI to all CEOs of the Urban Banks, regarding UPI Application in Banks and Devise Ending Control dated 30/12/2022.
Exhibit 22 True printout of the Email communication -Alert No.15/2022, sent by the 4th Respondent RBI to all CEOs of the Urban Banks regarding Cyber Security and IT Risk dated 30/12/2022.
Exhibit 23 True printout of the Email communication -regarding migration of Returns from XBRL Phase II Old UAT Set up to XBRL Phase II dated 30/12/2022.
Exhibit 24 True printout of the Email communication -Reply of the Petitioner to the 4th Respondent RBI that the Petitioner will attend the scheduled meeting of the CEOs regarding Regulatory Expectations on IT/Cyber Security dated 11/01/2023.
Exhibit 25 True printout of the Email communication -Official Communication sent by the Petitioner to the Chairman and the Board of the 1st Respondent Bank, with recommendations regarding the Basic Cyber Security Directives and Controls issued by the RBI in the light of the online webinar of the CEOs, conducted by the RBI dated 24/11/2023.
Exhibit 26 True printout of the Email communication -Advisory No.1/2023 - From the 4th Respondent RBI to all CEOs, regarding Misuse of Headers and Content Templates/Spam SMS dated 15/03/2023.
Exhibit 27 True printout of the Email communication -from the Petitioner to the Chairman and the Board of the 1st Respondent Bank, regarding the communication from the Deputy General Manager of the 4th Respondent RBI about the conducting of a field Survey on Digital Payment Acceptance, by the Bank dated 29/03/2023
Exhibit 28 True printout of the Email Communication from the 4th Respondent RBI to the Petitioner- Regarding Digital Banking and NPCI Products, Migration to Digital Banking etc. dated 31/03/2023.
Exhibit 29 True printout of the Email Communication -33rd SLSC Meeting- Inputs on Agenda Items. Regarding the Security needs of the Banks, Security of Currency Chests and Cash Movement Particulars. Sent by the RBI to all CEOs dated 18/03/2023.
Exhibit 30 Counter Affidavit filed by the 4th Respondent RBI in WA 433/2022.