IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.12.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.20330 and 20331 of 2008 and M.P.NO.1,2 and 2 OF 2008 C.K.Munusamy .. Petitioner in both petitions Vs. 1.The Registrar of Co-operative Societies, N.V.N. Maligai, Kilpauk, Chennai-10. 2.The Joint Registrar of Co-operative Societies, Vellore Region, Vellore District. 3.The Special Officer, VL.SPL.81, Thenkadapanthangal Primary Agricultural Co-operative Bank Ltd., Thenkadapanthangal, Vellore District. .. Respondents in
W.P.No.20330 of 2008
1.The Joint Registrar of Co-operative
Societies,
Vellore Region,
Vellore District.
2.The Special Officer,
VL.SPL.81, Thenkadapanthangal
Primary Agricultural Co-operative
Bank Ltd., Thenkadapanthangal,
Vellore District.
3.S.A.Rajagopal,
Co-op Sub Registrar (Prosecution)/
Domestic Enquiry Officer,
O/o Deputy Registrar of Co-op
Societies,
Vellore Circle, Vellore District. .. Respondents in
W.P.No.20331/2008
W.P.No.20330 of 2008 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records pertaining to the impugned order passed by the second respondent in Na.Ka.No.4559/06 Aa1 dated 27.6.2008 and the consequential order dated 28.6.2008 passed by the third respondent and to quash the same and consequently to direct the second and third respondents to pay the retirement benefits including gratuity amount, provident fund and leave salary along with interest to the petitioner.
W.P.No.20331 of 2008 is preferred under Article 226 of the Constitution of India for the issue of a writ of certiorari to call for records relating to the impugned order in Na.Ka.No.4559/06 A1 dated 5.8.2008 passed by the first respondent and to quash the same.
For Petitioners : Mr.T.Sundaravadanam
For Respondents : Mr.R.Neelakantan, GA
Mr.Girish Neekandan for R3
in W.P.No.20330 of 2008
– – – –
COMMON ORDER
Heard both sides. In both the writ petitions, the petitioner is one and the same person. The petitioner, who was working as a Secretary of Thenkadappanthangal Primary Agricultural Co-op Bank Ltd., Vellore District (for short PACB), has filed the writ petitions challenging the order, dated 27.6.2008, wherein and by which he was not permitted to retire from service. It was also directed that for the stay order obtained by the petitioner against the surcharge proceedings in W.P.No.28109 of 2005, steps to be taken to vacate the stay order to take further proceedings. In view of the same, the petitioner, by an order of the Special Officer, dated 28.6.2008, was not permitted to retire from service on 30.6.2008.
2.In the second writ petition, the petitioner had challenged the order, dated 5.8.2008, in which further direction was given by the Cadre Control Authority to complete the enquiry proceedings and send it at an early date.
3.The contention of the petitioner was that as he belonged to a common cadre governed by the Common Cadre Regulations framed by the State Government in G.O.Ms.No.55, Co-operation, Food and Consumer Protection Department, dated 24.3.2000 and there being no regulations to retain him from retirement, the order not permitting him to retire and a further order to complete the enquiry were illegal and contrary to the judgment of the Supreme Court in Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and others reported in (1999) 3 SCC 666.
4.The writ petitions were admitted on 21.8.2008. This Court granted an order of an interim stay of enquiry alone. On notice from this court, the Registrar of Co-op. Societies filed a counter affidavit, dated 21.5.2009. The Joint Registrar of Co-op. Societies, Vellore Region has filed counter affidavits in both the writ petitions, dated Nil (October, 2008). The Special Officer of the Society has also filed a counter affidavit, dated 7.9.2009. The petitioner has filed a rejoinder affidavit, dated 12.10.2009.
5.It was stated by the respondent Co-operative Society that the petitioner was suspended on 26.5.2006 based on serious charges including one in respect of jewel loans. He had failed to deposit Rs.77.46 lakhs and that amount was used for different purposes. There are several charges levelled against the petitioner by a charge memo, dated 28.7.2006. The petitioner challenged the order of suspension by filing a writ petition being W.P.No.24099 of 2006. That writ petition was disposed of by this court on 6.9.2006, stating that charges should be framed against the petitioner and after conducting an enquiry, appropriate orders should be passed. Thereafter, on 28.7.2006, the Common Cadre Authority framed nine charges against the petitioner.
6.The petitioner filed W.P.No.45493 of 2006 challenging the said charge memo. The contention was that the said charge memo contained the same charges which was the subject matter of the earlier charge memo framed by the Special Officer, which was set aside by this court. Thereafter, on 11.12.2006, the Common Cadre Authority deleted charge Nos.3 and 5 and added four additional charges. The petitioner preferred W.P.No.17029 of 2007 and challenged the charge memo. He also stated that since his revision petition is pending, the enquiry should not be proceeded with. Therefore, this court granted an interim stay of proceeding with the enquiry. W.P.No.45493 of 2006 was disposed of by this court on 28.10.2008.
7.In the meanwhile, the petitioner preferred a revision petition before the Additional Registrar under Section 153 against the charge memo dated 11.12.2006. The petitioner also filed a writ appeal which is against the original order in W.P.No.24099 of 2006, dated 6.9.2006 and it is still pending as unnumbered. The petitioner also preferred a revision petition against the extension of suspension, which is also pending before the Additional Registrar of Co-operative Societies.
8.It is stated that the petitioner cannot successfully stall the disciplinary action on the serious charge against his conduct and contend that he had reached the age of superannuation and therefore, no enquiry can be held in the absence of any provisions. The allegation of mala fide was stoutly denied. It was stated that W.P.No.28109 of 2005 filed by the petitioner was disposed of by this court on 11.12.2009.
9.In the rejoinder filed by the petitioner, the petitioner stated that it is not as if the writ appeal was defective. The writ appeal was numbered as W.A.No.1042 of 2007 and the same was dismissed as withdrawn on 17.8.2007 to pursue the enquiry. He also stated that W.P.No.17029 of 2007 was disposed of on 8.5.2007 with a direction to forbear from conducting domestic enquiry till the disposal of his revision appeal, dated 15.4.2007. He further stated that the second and third respondents cannot pass orders not allowing me to retire from service.
10.The contentions raised by the petitioner cannot be countenanced by this court. A Division Bench of this court presided by Prabha Sridevan, J. relating to The Registrar of Co-operative Societies, Kilpauk, Chennai Vs. G.Manoharan in W.A.Nos.256 and 257 of 2008, dated 21.10.2009, after referring to all previous cases, rejected such a contention. In paragraph 33 it was held as follows:
“33.From the records produced in this case, the following facts are obvious:-
(a)The activities of the first respondent had caused a great deal of consternation among the authorities and they were forced to transfer him from the place where, according to them, he was causing a lot of damage.
(b)The disciplinary proceedings had been actually initiated before his age of superannuation, since the first charge memo is dated 6.6.2003, whereas his age of superannuation is 31.6.2003.
(c)He had also given a reply to the charge memo dated 6.6.2003, but had not chosen to reveal the fact of the issuance of this earlier charge memo in his writ affidavit.
(d)No orders had been passed permitting him to retire; on the contrary, he was suspended on the eve of his attaining the age of superannuation.
(e)The Supreme Court has held that even if a person had retired, if it is proved that he had caused loss to the establishment, then proceedings can be initiated to recover the amount of loss from him.
(f)Even if a person has attained the age of superannuation, it is possible to dismiss him, in which event, he will not be entitled to his terminal dues vide (2007) 9 S.C.C. 15 (supra).
(g)In any event, Section 87 of the Act gives the power to proceed against even a past employee for recovery and restoration of the financial loss caused to the Society.”
11.Further the Supreme Court in Forest Deptt. v. Abdur Rasul Chowdhury reported in (2009) 7 SCC 305 held in paragraphs 15 to 21 as follows:
“15. In the present case, while the delinquent employee was in service, the departmental enquiry proceedings had been instituted by the employer by issuing the charge memo and the proceedings could not be completed before the government servant retired from service on attaining the age of superannuation and in view of Rule 10(1) of the 1971 Rules, the employer can proceed with the departmental enquiry proceedings though the government servant has retired from service for imposing only punishment contemplated under the Rules.
16. The next issue is with regard to delay in concluding disciplinary proceedings. In our view the delay in concluding the domestic enquiry proceedings is not fatal to the proceedings. It depends on the facts and circumstances of each case. The unexplained protracted delay on the part of the employer may be one of the circumstances in not permitting the employer to continue with the disciplinary enquiry proceedings. At the same time, if the delay is explained satisfactorily then the proceedings should be permitted to continue.
17. This Court in Registrar, Coop. Societies v. Sachindra Nath Pandey5 has explained the various circumstances when the departmental proceedings can be directed to be closed, it is worthwhile to refer to the observation made by this Court in this regard: (SCC p. 135, para 5)
5. The learned counsel for the appellant submits that in this case the first respondent adopted a course of total non-cooperation and procrastination and that in spite of repeated opportunities being given he did not respond or participate in the inquiry. The first respondent did not even care to file an explanation or reply to the memo of charges. In the circumstances, the authorities had no option but to hold that the charges are proved. Even after the report of the inquiry officer was submitted, a number of opportunities were given which he again failed to avail of. It is submitted that though the whole history of the case has been set out in the counter-affidavit filed in the High Court, the learned Judge did not notice any of those facts and yet allowed the writ petition on an untenable ground. It is further contended that according to Regulation 68 of the Cooperative Federal Authority (Business) Regulations, 1976, it was not obligatory upon the inquiry officer to record the evidence of the witnesses where the first respondent did neither submit a reply nor an explanation to the memo of charges. Though he was apprised of the inquiry, he did not care to attend in spite of repeated opportunities. In such a situation, he cannot complain of not recording the evidence of witnesses and other evidence.
18. In the present case, the Administrative Tribunal after going through the entire record from the date of initiation of the departmental proceedings till the government employee retired from service on attaining the age of superannuation, has observed that since the government employee had left the headquarters without the permission of the competent authority, so the proceedings could not be completed. This finding on facts need not be disturbed by us, since the said finding cannot be said to be a perverse finding.
19. In view of the above discussion, the appeal is allowed and the judgment and the order passed by the High Court is set aside.
20. The disciplinary authority is directed to complete the domestic enquiry proceedings from the stage it was interdicted by the High Court and complete the same as expeditiously as possible and at any rate within three months from the date of receipt of this Courts order. The respondent herein is directed to participate in the enquiry without unnecessarily seeking adjournment in the enquiry proceedings.
21. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.
12.It is the petitioner who had stalled successfully taking up the disciplinary action through various court proceedings. Even though such a writ petition is not maintainable in the light of the larger bench judgment of this Court in K.Marappan Vs. The Deputy Registrar of Co-operative Societies, Namakkal Circle, Namakkal-636 001 and another reported in 2006 (4) CTC 689, the petitioner was managed to get an interim order. Even the present writ petitions are not maintainable in the light of the dictum laid down by the larger bench. Further, the petitioner himself has availed a revisional remedy against his suspension and the charge memo. Though the petitioner has raised the contention that after his reaching the age of superannuation, the proceedings cannot be continued, there are many cases against the petitioner. The surcharge proceedings against the petitioner was also stalled by him. Serious charges were levelled against the petitioner. The action of the respondents in allowing him to go without prejudice to the disciplinary action cannot be found fault with.
13.In the light of the above legal precedents, the contentions raised by the petitioner cannot be accepted. Hence both the writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions also stand dismissed.
vvk
To
1.The Registrar of Co-operative
Societies,
N.V.N. Maligai,
Kilpauk,
Chennai-10.
2.The Joint Registrar of
Co-operative Societies,
Vellore Region,
Vellore District.
3.The Special Officer,
VL.SPL.81, Thenkadapanthangal
Primary Agricultural Co-operative
Bank Ltd.,
Thenkadapanthangal,
Vellore District.
4.Co-op Sub Registrar (Prosecution)/
Domestic Enquiry Officer,
O/o Deputy Registrar of Co-op
Societies,
Vellore Circle,
Vellore District