ORDER
1. The writ petition is for the issue of writ of certiorari to call for the records on the file of the first respondent in his proceedings in C.M.A.(CS) 86 of 1990 dated 3.6.1992 confirming the order of the second respondent in Na.Ka.No. 12905/87 sa.pa. dated 2.51990 and quash the same.
2. The petitioners were the Directors of the third respondent Society. Learned counsel for the petitioners has argued that an employee by name Parameswaran was working from 1977 onwards on a consolidated pay in the third respondent Society. He is a post graduate and had undergone Co-operative Training and he was in-charge of all the affairs of the Society. He made a request for revision of pay. The Committee has passed a resolution on 25.10.1986 refixing the salary at Rs.650 per month with 15% D.A. and 15% H.R.A. with retrospective effect from the period 1984-86. Learned counsel for the petitioner has argued that there was no dispute with regard to the payment of salary for the period from 1986-89. Subsequently, the employee resigned his post and took up some other employment. The second respondent has initiated surcharge proceedings on the ground that the increase of salary is subject to limitation of 2% of establishment expenditure as per
Circular dated 1.3.1981. The Society did not get the prior approval of the
higher authority for refixation of the salary with retrospective effect i.e. from
1984-86. Learned counsel has argued that the show cause notice has been
issued on 18.9.1989 and the surcharge proceedings were concluded by
2.5.1990. By the surcharge proceedings dated 2.5.1990, the petitioner was
liable to pay Rs.14,000 for the period from 1984-86. Learned counsel has
further argued that the amount that has been paid to the employee is below the
limit of 2% as per the circular dated 1.3.1981. Aggrieved by the order in the
surcharge proceedings, the petitioners herein have preferred C.M.A.No.86 of,
1990 and the same was disposed of on 3.6.92 confirming the orders of the
second respondent. Aggrieved by the same, the present writ petitioners been
filed. Learned counsel has argued that so far as the disputed period of 1984-86
is concerned, show cause notice has been issued on 18.9.1989. The surcharge
proceedings were supposed to have been initiated under Section 87 of the
Tamil Nadu Co-operative Societies Act, 1983. Learned counsel has argued
that proviso to Section 87 makes it mandatory on the part of the authorities to
complete the proceedings within a period of six months once the action is
commenced. Learned counsel has argued that in this case, show cause notice
was issued on 18.9.1989 and they should have completed the proceedings
within a period of six months. Learned counsel has further argued that if the
period exceeds beyond six months, the higher authority may have to extend
the period. He has also argued that the impugned order does not show that the
second respondent has sought the extension as required under the proviso to
Section 87 of the Act as the proceedings has not been completed within a
period of six months.
3. Learned counsel for the third respondent has argued that it is well within the power of the second respondent to proceed with the action even though it exceeds beyond six months as he has already commenced action.
4. When the matter came up earlier, time was granted to the second and third respondents to produce the records. Today, learned counsel for the third respondent has produced a letter received from the Society that the records are available with the second respondent and he has no instructions so far as the extension of the period by the second respondent. The second respondent has filed a counter.
5. The proviso to Section 87 of the Co-operative Societies Act, 1983 reads as follows:
“Provided that no action shall be commenced under this sub-section after the expiry of seven years from the date of any act or omission referred to in this sub-section:
Provided further that the action commenced under this sub-section shall be completed within a period of six months from the date of such commencement or such further period or periods as the next higher authority may, permit but such extended period or periods shall not exceed six months in the aggregate.”
6. In this case, show cause notice has been issued on 18.9.1989 and the action should have been completed by 18.3.1990. But the proceedings have been completed only on 2.5.1990. The impugned order has been translated
orally in English. It is clear that the second respondent did not seek the extension of the higher authority, as the period of six months was over by 18.3.1990. In the counter also, it is not mentioned, that the second respondent has sought for the extension of time as the period exceeded six months. Under the circumstances, it has to be held that the second respondent has not sought for the extension of time. Learned counsel for the petitioner has produced an unreported judgment of this court in N.Ranganathan, v. The Principal District Judge, District Court, VRP District, Villupuram and others, W.P.Nos.4724 and 17955 of 1997 dated 15.12.1998 wherein a learned single Judge of this Court has held that obtaining of permission under Section 173 of the old Act and now Section 87 is mandatory. Learned Judge has held that the action has to be completed within a period as stipulated under the proviso to Section 87. Under the circumstances it has to be held that the second proviso to Section 87 of the present Act of 1983 is mandatory in nature and the proviso also stated that the action “shall be” completed within a period of six months and if it exceeds beyond the period of six months, there must be an extension from the higher authority. As the second respondent has not obtained the extension from the higher authority, the action initiated has to be held to be non-est in the eye of law. The second respondent has not followed the second proviso to Section 87 (1) of the present Act of 1983 which is mandatory. As the impugned order has been passed without following the second proviso to Section 87 of the Act of 1983, the same is quashed. The writ petition is allowed. No costs. Consequently, W.M.P.No.23641 of 1992 is closed.
