IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 08-09-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.2747 of 2001 M.Krishnasamy .. Petitioner. Versus 1.The Principal District Judge (Pudukkottai), Special Tribunal for Co-op. Cases, Pudukkottai. 2.The Deputy Registrar of Co-op. Societies, Marthandapuram 1st Street, Pudukkottai. 3.MM198, Kunnathur Primary Agricultural Co-op. Bank Ltd. Rep. by its President, Kunnathur and Post, Illuppur Taluk, Pudukkottai District. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorari, calling for the records of the 1st respondent made in his proceedings in CMA(CS)12/99, dated 27.7.2000, confirming the order of the 2nd respondent by proceedings in Na.Ka.13925/96 Sa.Pa. Dated 19.3.98, and quash the same as illegal. For Petitioner : Mr.K.V.Ananthakrushnan For Respondents : Mr.T.Seenivasan Additional Government Pleader (R2 & R3) O R D E R
Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents 2 and 3.
2. The petitioner has stated that he was appointed on 2.8.73, as an Assistant Supervisor in Pudukkottai District Central Co-operative Bank, on ad-hoc basis and posted to Amman Kurichi Primary Agricultural Cooperative Bank. Later, he was transferred to Kunnathur Primary Agricultural Cooperative Bank and he was functioning as its Secretary, between 27.6.74 and 23.3.94. After 20 years of unblemished service, he had resigned from the post of Secretary of the third respondent Bank and joined the District Central Cooperative Bank, on 28.3.94, in the cadre of Assistant, foregoing his seniority and his pay was fixed at the initial stage. He had received his provident fund, the gratuity, encashment of leave salary etc., on 23.3.94, from the third respondent bank and, on 28.3.94, he had joined the Pudukkottai District Central Co-operative Bank. While so, as per the proceedings of the Joint Registrar of Co-operative Societies, Trichy Region, dated 6.7.78, made in R.C.No.26322/77/B4, 80 employees, including the petitioner were relieved from the service of the District Central Cooperative Bank and reverted back to the Primary Agricultural Cooperative Bank. However, the Government of Tamilnadu, by G.O.Ms.No.72, dated 15.2.85, accepted the demands made by the employees and directed the District Central Cooperative Bank to consider them as employees of the District Central Cooperative Bank and had directed the payment of salary on the basis of seniority. By another Government Order in G.O.No.331, Co-operation, dated 5.12.88, the Government had declared that the ad-hoc employees of the Primary Co-operative Agricultural Banks can be absorbed in the District Central Cooperative Banks of their choice on condition that they had to forego their seniority and the salary would be fixed at the initial stage.
3. By the Government Order in G.O.Ms.No.331, Cooperation, dated 5.12.88, the benefit conferred by the earlier Government Order, dated 15.2.85, was taken away. Later, the Government of Tamilnadu, by G.O.2(D), No.46, Consumer Protection Department, dated 25.8.2000, had ordered that the services of the employees from the year 1975 with the Primary Agricultural Co-operative Banks had to be taken into consideration for refixing the salary at the District Central Co-operative Bank. However, it was said that they were not entitled to claim any seniority and at the time of their superannuation from the District Central Co-operative Bank, the terminal benefits would be calculated only for the period they had served in the District Central Co-operative Bank. As per the said Government Order, the gratuity was determined for 20 years of service put in by the petitioner with the Primary Agricultural Co-operative Bank at Rs.43,281/- and it was paid to him on 23.3.94. However, the Deputy Registrar of Co-operative Societies, by his proceedings, dated 19.3.98, had ordered that since Kunnathur Primary Agricultural Cooperative Bank had only less than 10 employees on their roles, the payment of Rs.43,281/-, as gratuity, to the petitioner is illegal and he had issued surcharge proceedings for the recovery of a sum of Rs.26,781/-.
4. As per the settlement arrived at with the Union in Proc.No.Ka/A/986/91, dated 8.5.91, under Section 12(3) of the Industrial Disputes Act, 1947, it was agreed that gratuity would be paid to the employees as per the Payment of Gratuity Act, 1972. The Deputy Registrar of Co-operative Societies, without taking into consideration the terms of the settlement, to pay gratuity as per the Act, had applied the bye-laws of the Bank and had issued the surcharge proceedings. The petitioner had preferred an appeal before the Special Tribunal for Co-operative cases before the District Court, Pudukkottai. The first respondent had dismissed the appeal and confirmed the order of surcharge proceedings issued by the Deputy Registrar of Co-operative Societies. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India.
5. A counter affidavit has been filed on behalf of the second respondent, denying the allegations made by the petitioner. It has been stated that any expenditure made by a Cooperative society should be in accordance with the provisions of the Tamilnadu Cooperative Societies Act, 1983, and the Rules framed thereunder and the bye-laws of the Society. Any excess expenditure incurred by the Society, without taking into consideration the bye-laws of the society, cannot be classified as an expenditure connected with the business of the Society. The said expenditure incurred by the Society is not in furtherance of the business of the society and therefore, it is illegal and cannot be brought under the purview of the settlement made, on 8.5.91, under Section 12(3) of the Industrial Disputes Act, 1947. The petitioner who was working in Kunnathur Primary Agricultural Co-operative Bank, on adhoc basis, was reverted to the services of the Pudukkottai District Central Co-operative Bank. He was eligible to draw the service gratuity, as per the provisions of the bye-laws of the Society. However, the petitioner had received the gratuity in the guise of the settlement already entered into. According to the bye-laws of the Kunnathur Agricultural Cooperative Bank, the petitioner was eligible to get Rs.16,500/- only, but he had received Rs.43,281/-, resulting in an excess payment of Rs.26,781/-. Therefore, the Deputy Registrar, the second respondent herein, had rightly initiated the necessary action against the persons concerned, under Section 87 of the Tamilnadu Cooperative Societies Act, 1983, to recover the amounts paid in excess.
6. The learned counsel for the petitioner had submitted that the amount of Rs.43,281/- paid to him as gratuity, is in accordance with the settlement, dated 8.5.91, concluded under Section 12(3) of the Industrial Disputes Act, 1947. According to the said settlement, it was agreed that the employees would be paid the gratuity in accordance with the Payment of Gratuity Act, 1972. The gratuity amount had been paid to the petitioner by the management of Kunnathur Primary Agricultural Cooperative Bank. The Deputy Registrar of Cooperative Societies, Pudukottai, the second respondent herein, had issued the impugned proceedings, dated 19.3.98, directing the petitioner to repay the excess amount paid to him as gratuity, along with 21% interest on the said amount. The Civil Miscellaneous appeal filed by the petitioner in C.M.A.(C.S).No.12 of 1999, had also been dismissed by the first respondent by his order, dated 27.7.2000, confirming the order passed by the second respondent in his proceedings, dated 19.3.98.
7. In view of the submissions made on behalf of the petitioner, as well as the respondents and on a perusal of the records available, this Court is of the view that the impugned orders passed by the first and second respondents, with regard to the recovery of the gratuity amount paid to the petitioner, is not sustainable in the eye of law. It is clear that the petitioner has been paid a sum of Rs.43,281/- as the gratuity amount due to him by the management of the third respondent bank, in accordance with the settlement concluded, under Section 12(3) of the Industrial Disputes Act, 1947. Even if it is the case of the first and second respondents that the gratuity amount paid to the petitioner is in violation of the bye-laws of the third respondent bank and the Government Orders, and the circulars issued with regard to fixation of pay scales and other service conditions of the employees of cooperative institutions, the amount paid to the petitioner as gratuity cannot be recovered by the respondents by issuing the impugned orders. Unless, it is shown by the respondents that the gratuity amount had been paid to the petitioner due to his misrepresentation or fraud, it would not be appropriate for the respondents to order the recovery of the amount paid to the petitioner.
8. Further, if the gratuity amount paid to the petitioner was in accordance with the settlement, concluded between the management of the third respondent bank and its employees, under Section 12(3) of the Industrial Disputes Act, 1947, the petitioner cannot be found fault with for the amount paid to him, as gratuity, by the management of the third respondent bank. Even if it is found that the concluded settlement, dated 8.5.91, is contrary to the Government Orders and the circulars issued with regard to the payments to be made to the employees by the respective cooperative institutions, such a concluded settlement cannot be nullified by the respondents by merely issuing certain orders as has been done in the present case. However, it is open to the respondents to modify or cancel a concluded settlement by following the procedures established by law, and by following the principles of natural justice. In the present case, nothing has been shown on the part of the respondents to justify the impugned orders passed by them. In such view of the matter, the impugned proceedings of the second respondent, dated 19.3.98, and the order dated 27.7.2000, passed by the first respondent, in C.M.A.No.(CS).No.12/99, are set aside. Accordingly, the writ petition stands allowed. No costs.
csh
To
1.The Principal District Judge
(Pudukkottai), Special Tribunal for
Co-op. Cases, Pudukkottai.
2.The Deputy Registrar of Co-op.
Societies, Marthandapuram 1st Street,
Pudukkottai
[ PRV / 15863 ]