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M. Adaikann vs The Registrar Of Co.Operative on 6 December, 2005

Madras High Court
M. Adaikann vs The Registrar Of Co.Operative on 6 December, 2005
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS           

DATED: 06/12/2005  

CORAM   

THE HON'BLE MR.JUSTICE P.SATHASIVAM         
and 
THE HON'BLE MR.JUSTICE S.K. KRISHNAN        

Writ Petition No.19840 OF 2003 

M. Adaikann                            ..Petitioner

-Vs-

1. The Registrar of Co.operative
   Societies,
   N.V.N. Maaligai,
   No.170 E.V.R. Periyar Road
   Kilpauk, Chennai 600 10.

2. The Joint Registrar of Co.operative
   Societies, Ramakrishna Road,
   Salem 7.

3. The Registrar
   Tamil Nadu Administrative Tribunal
   City Civil Court Buildings
   Chennai.                             .. Respondents

                Petition filed under Article 226 of the Constitution of  India
praying  for  the  issuance  of  a  writ  of Certiorarified mandamus as stated
therein.

For petitioner :  Mr.  L.  Chandrakumar

For respondents 1:  Mr.  E.  Sampathkumar 
and 2.          Government Advocate

:ORDER  

(ORDER of the Court was made by P.SATHASIVAM,J.)

Aggrieved by the order of the Tamil Nadu Administrative
Tribunal dated 22.05.2003 made in O.A.No.807 of 2002, in and by which the
punishment of dismissal from service has been confirmed, the petitioner –
Special Officer, has filed the above writ petition to quash the same and
direct respondents 1 and 2 to reinstate him with all service and monetary
benefits.

2. The case of the petitioner is briefly stated hereunder:
According to the petitioner, he was appointed as a temporary
Junior Inspector of Co.operative Societies on 05.02.1985. His service was
regularised with effect from 16.10.1989 and subsequently he was promoted as
Senior Inspector of Co.operative Societies and while working as such, during
1995, he was directed to hold additional charge of about 15 Societies as
Special Officer, which covered around 50-60 Kms., area. Based on the repeated
representation of the employees of the Societies, which are under his control,
a settlement has been arrived at by him under Section 12 (3) of the Industrial
Disputes Act, 1947, and with the approval of the then Co.operative
Sub-Registrar, who is a competent and higher authority, revision of pay scales
of the employees of the Societies came to be extended. While so, alleging
violations, he was issued with a charge memo dated 31.03.1998 under Rule 1
7(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (in short
“the Rules”) and the petitioner was asked to submit his explanation for the
same. Thereafter, an Enquiry Officer was appointed and at the time of
enquiry, on 13.07.2002, the petitioner submitted his written explanation. The
petitioner was also served with a copy of the enquiry report and he made a
further representation, disputing all the allegations. By order dated
31.01.2002, the second respondent – Joint Registrar of Co.operative Societies,
Salem-7, imposed a capital punishment of dismissal from service. Aggrieved by
the same, the petitioner filed O.A.No.807 of 2002 before the Tamil Nadu
Administrative Tribunal. The Tribunal, by the order impugned in this writ
petition, dismissed his original application, confirming the punishment of
dismissal passed by the 2nd respondent / Joint Registrar of Co. operative
Soceities, Salem. Questioning the same, the petitioner has filed the present
writ petition.

3. Heard Mr. L. Chandrakumar, learned counsel for the
petitioner and Mr. E. Sampathkumar, learned Government Advocate for
respondents 1 and 2.

4. The learned counsel appearing for the petitioner after
taking us through the relevant materials, including the impugned order of the
Tribunal, has raised the following contentions.

(i)The respondents have no jurisdiction to initiate proceedings under Rule
17(b) of the Rules, as per G.O.Ms.No.111 Personnel and Administrative Reforms
(Fundamental Rules II) Department, dated 02.05.1994;

(ii)The petitioner was not given reasonable opportunity to put forth his case
before the Original Authority as well as the Tribunal;

(iii)Inasmuch as the second respondent / Joint Registrar of Co. operative
Societies, higher officer than the appointing authority / Deputy Registrar of
Co.operative Societies had imposed the punishment, the petitioner has lost an
opportunity of canvassing the order before the said appellate authority; and

(iv)Inasmuch as in respect of similarly placed persons, the very same
Department has imposed minor punishment and in some cases charges have been
dropped, the respondents are not justified in imposing the capital punishment,
viz., dismissing the petitioner from service. ”

5. On the other hand, the learned Government Advocate by
drawing our attention to the details furnished in the counter affidavit, met
all the contentions raised by the learned counsel for the petitioner and
prayed for dismissal of the writ petition.

6. We have perused the relevant materials and considered the
rival contentions of both parties.

7. With regard to the first contention, as per G.O.Ms.No.111
Personnel and Administrative Reforms (Fundamental Rules II) Department, dated
02.05.1994, the deputationist will be deemed to be a member of the State and
Subordinate Service to which he would have belonged but for the deputation for
the purpose of the Tamil Nadu Civil Services ( Discipline and Appeal) Rules
and the Government Servants Conduct Rules, notwithstanding that his services
are placed at the disposal of the foreign employer. If the Officer, before
his deputation to the foreign employer, committed any act or omission which
renders him to liable to any penalty specified in the said Rules, the State
Government or the appropriate disciplinary authority under whom he was serving
at the time of commission of such act or omission shall alone be competent to
institute disciplinary proceedings against him and to impose on him a penalty
specified in the said Rules. As per the said provisions, the State Government
or the appropriate disciplinary authority has not been barred from taking
disciplinary action against deputationist.

8. The above said Government Order makes it clear that the
deputationist is deemed to be a member of the State and subordinate service to
which he belongs notwithstanding that his services are placed at the disposal
of foreign employer. In our case, the Disciplinary Authority, viz., Deputy
Registrar, Omalur, who was his immediate superior officer at the time of
commitment of certain lapses and also the Appointing authority in respect of
the petitioner, has taken the disciplinary action under Rule 17(b) of the
Rules. As per Rule 8 of the Rules, the second respondent is the competent
disciplinary authority with delegation of power, to impose the major
punishment. The second respondent is an authority higher than the rank of the
Deputy Registrar of Co.operative Societies, who has initiated the disciplinary
case against the petitioner. On a perusal of all these materials and the
Rules, we are satisfied that the second respondent is the competent authority
to dismiss the petitioner and the action of the second respondent is in
conformity with the provisions contained in G.O.Ms.No.1 11 Personnel and
Administrative Reforms Department dated 02.05.1994; hence, the first
contention of the learned counsel for the petitioner is liable to be rejected.

8. Regarding the second contention relating to violation of
principles of natural justice, the details furnished in the counter affidavit
show that the charge memo was served on the petitioner on 19.11.199 8. In the
charge memo itself it was specifically mentioned that 15 days time was given
for submission of his explanation and if the explanation was not received, it
will be presumed that he has no explanation to offer and further action will
be taken on merits of the case. The Deputy Registrar, Omalur, in his letters
dated 18.12.1998 and 08.01.1999, has instructed the petitioner to submit his
explanation. On 15.02.1999, he gave a final chance to the petitioner for
submission of his explanation. The fact remains, the petitioner had neither
submitted his explanation, nor sought for perusal of records in respect of the
charges leveled against him. In these circumstances, the Deputy Registrar,
Omalur requested the second respondent / Joint Registrar of Co.operative
Societies, Salem to appoint a Domestic Enquiry Officer with regard to the
disciplinary action taken against the petitioner.

9. The particulars further show that the Domestic Enquiry Officer
issued summons to the petitioner for appearance and requested him to be
present for domestic enquiry on 29.11.1999. The petitioner appeared on
29.11.1999 and sought for adjournment for perusal of the records. The
petitioner perused the records relating to the allegations, in the presence of
the Domestic Enquiry Officer in the Office of the Deputy Registrar of
Cooperative Societies, Omalur. Finally, the petitioner appeared on 13.07.2000
and submitted his written explanation before the Enquiry Officer. He also
deposed before him that he had no witness to be examined. The Domestic
Enquiry Officer completed the enquiry and submitted his report to the second
respondent on 01.11.2001. The second respondent communicated the Domestic
Enquiry Officer’s report to the petitioner on 05.011.2001, requiring him to
submit further representation if any, which was received by the petitioner on
07.11.2001. The petitioner has submitted his further representation on
05.12.2001. The second respondent examined the enquiry report, considered the
explanation submitted and passed the final order, based on the findings of the
Enquiry Officer. In such circumstances, it cannot be claimed that the
petitioner was not given adequate opportunity in the enquiry proceedings.

10. Coming to the claim that he was not given adequate
opportunity before the Tribunal, the perusal of the impugned order of the
Tribunal shows that after filing of reply affidavit by the Department, the
petitioner also filed an additional affidavit on 12.02.2003. The Tribunal,
after considering all the materials, passed an order on 22.05.2 003,
dismissing his application. The grievance of the petitioner is that the
Tribunal reserved the Original Application for orders and the order came to be
passed after a period of one month, and in the meanwhile, the Department filed
a reply statement. All these facts cannot be considered by this Court at this
juncture. If the petitioner really had such grievance, on seeing the order,
he could have approached the Tribunal by filing a petition for review of the
said order. Hence, the said contention is also liable to be rejected.
Accordingly, we hold that before the Enquiry Officer and the Tribunal, the
petitioner was given ample opportunity to put forth his case.

11. Coming to the other contention, it is seen that the
Deputy Registrar of Co.operative Societies is the competent authority in
respect of Senior Inspector to issue the charge memo and as per Rule 14(a)(2
), the second respondent / Joint Registrar is the competent authority to
impose punishments like dismissal, reduction in rank, removal, etc., under
Rule 8 against the Senior Inspector of Co.operative Societies. As a matter of
fact, this information is also found in the dismissal order itself. We are
satisfied that the second respondent has acted only based on the relevant
Rules and there is no substance in the allegation made by the petitioner.

12. Coming to the question of discrimination, viz., others
who are said to have been involved in similar charges were awarded lesser
punishment and only in the case of the petitioner, punishment of dismissal was
imposed. First of all, except the general statement, the petitioner has not
furnished necessary details of the persons concerned, their involvement and
the ultimate punishment imposed on them. Secondly, when the petitioner was
holding additional charge of Special Officer for 14 Co.operative Societies, he
had made 13 irregular appointments, 43 irregular promotions, ordered 53
irregular pay revisions and also was responsible for issuing 10 irregular
loans. In this way, he has caused heavy loss to the tune of Rs.7,65,855/- to
14 Co. operative Societies. Further, out of 55 charges, 46 were proved and 9
alone were not proved in the domestic enquiry.

13. We have already referred to the fact that the petitioner was
given adequate opportunity before the Enquiry Officer. It is also not in
dispute that in respect of loss caused to the Societies, surcharge proceedings
had been initiated and he was asked to pay the loss caused to the Societies.
It is also stated that against the said order, the petitioner preferred an
appeal before the competent forum and the same is pending. We are also
satisfied that the second respondent after taking into consideration the
representation of the petitioner on the report of the Domestic Enquiry
Officer, connected records, the gravity of proved charges, and consequential
loss caused to the Societies, has come to the conclusion to dismiss the
petitioner from service. All these aspects have also been considered by the
Tribunal and while dismissing the Original Application filed by the
petitioner, the Tribunal concluded that since the charges are grave in nature,
and the applicant therein / petitioner herein acted in a highhanded manner, as
well as he has caused loss amounting to nearly Rs.7.5 lakhs to the Societies,
for which he was the Special Officer, the punishment of dismissal imposed on
him is just and adequate to the proved charges. In the light of the abundant
materials, we are in agreement with the said conclusion arrived at by the
Tribunal and do not find any valid reason or justification to interfere with
the impugned order of the Tribunal.

In the light of what is stated above, the writ petition fails
and the same is dismissed. No costs.

Index:Yes
Internet:Yes

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To

1. The Registrar of Co.operative
Societies,
N.V.N. Maaligai,
No.170 E.V.R. Periyar Road
Kilpauk, Chennai 600 10.

2. The Joint Registrar of Co.operative
Societies, Ramakrishna Road,
Salem 7.

3. The Registrar
Tamil Nadu Administrative Tribunal
City Civil Court Buildings
Chennai.

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