The petitioner is aggrieved by Ext.P1 order of the Arbitrator which was upheld by the Tribunal. 2. The brief facts leading to filing of the writ petition is that, the petitioner was the Branch Manager of one of the branches, under the 4th respondent. The 5th respondent was an employee of the 4th respondent, who had been involved in a number of instances of misappropriation. Disciplinary proceedings were initiated against the 5th respondent and he was dismissed from service. The 4th respondent had also filed arbitration case against the 5th respondent for recovery of the amounts, recovered from him by the Bank; which were actually misappropriated by the 5th respondent.
3. As far as the petitioner is concerned, while he was Branch Manager, the 5th respondent working under him, had been involved in two misappropriations. The petitioner and four other employees who were the supervisory staff in the Branch, were also proceeded against. But, no apportionment of liability was made in the disciplinary proceedings against the said supervisory staff. Supervisory latches were found and barring of one increment was the punishment awarded to the petitioner. Hence, no loss could have been recovered from the petitioner as such.
4. However, when the misappropriation was first revealed, the petitioner and the four supervisory staff, under whom the 5th respondent was working, was directed to make good the loss. The petitioner, who was the Branch Manager, as his share, paid an amount of Rs.5,00,000/- to the respondent Bank.
The petitioner's claim is for recovery of the said amount since eminently no liability of loss incurred by the misappropriation made by the 5th respondent, can be mulcted on the petitioner. Nor did the disciplinary proceedings find the petitioner liable for such misappropriation.
5. Petitioner filed an ARC before the 3rd respondent with the Bank and the 5th respondent in the party array. However, the petitioner had sought for recovery of the amount from the 5th respondent. There was no relief against the Bank and the arbitrator declined jurisdiction under Section 69 of the Kerala Co-operative Societies Act, 1969. The Tribunal too confirmed the said order.
6. The petitioner relies on a decision of this Court in Jacob Varkey & another v. Idukki District Co- operative Bank Ltd. & others [AIR 2001 Kerala 408].
This Court found that, if an ARC is filed without impleading the necessary parties, the same can be permitted to be withdrawn without prejudice to the filing of a fresh ARC. What the petitioner submits is that, the petitioner, hence, could make an application for withdrawal of the ARC without prejudice to file a fresh ARC claiming a relief against the respondent Bank also, since there is no specific power conferred on the arbitrator to permit an amendment to the pleadings.
7. In such circumstances, going by the above precedent, it is only proper and it would serve the ends of justice that the petitioner be permitted to withdraw the ARC and file a fresh ARC raising any other contentions permissible to be agitated before the Arbitrator.
8. Exts.P1 & P2 hence are set aside. The petitioner shall if so advised, file an application for withdrawing the ARC within a period of one month from the date of receipt of a copy of this judgment in which case, the same shall be allowed and the petitioner be permitted to file a fresh ARC, within a month from the date of such order.
The writ petition is disposed of. Parties left to suffer their respective costs.
AMV/26/11/ Sd/-
K.VINOD CHANDRAN, JUDGE