Madras High Court
G.Deepa vs The Registrar Of Coop Societies ... on 16 November, 2021
W.P.No.21029 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.No.21029 of 2021 and
W.M.P.Nos.22288 & 22289 of 2021
G.Deepa .. Petitioner
Vs
1.The Registrar of Coop Societies (Housing)
No.48, Ritharttan Road,
Vepery, Chennai - 600 007.
2.The Deputy Registrar (Housing),
East Garden Street,
Fairlands, Salem - 16.11.2021
3.The President,
S.1337, Salem Industrial Employees
Coop. House Construction Society Ltd.,
No.86, Kalaidossar Street,
Narayana Nagar, Salem - 15.
4.The Director
Directorate of Cooperative Audits,
Amma Vazhagam, 2nd Floor,
No.571, Annasalai, Chennai - 600 035.
5.The Assistant Director,
Cooperative Audits,
Sri Lakshmi Complex,
No.76, Cherry Road,
Salem - 636 007. .. Respondents
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W.P.No.21029 of 2021
Prayer: Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus calling for the
records of impugned notice under Section 87(1) of Tamil Nadu
Cooperative Societies Act in Na.Ka.1778/2015E dated 25.08.2015 issued
by the second respondent and its consequential notice issued by the 3rd
respondent dated 28.08.2021 and quash the same, consequently direct the
respondents to settle the service benefits if any payable to the petitioner's
husband viz., D.Govindan forthwith.
For Petitioner : Mr.M.R.Jothimanian
For Respondents : Mrs.E.Ranganayaki
1, 2, 4 & 5 Additional Government Pleader
For 3rd Respondent : Mr.Richardson Wilson
Additional Government Pleader
ORDER
The prayer sought for herein is for a writ of certiorarified
mandamus calling for the records of impugned notice under Section
87(1) of Tamil Nadu Cooperative Societies Act in Na.Ka.1778/2015E
dated 25.08.2015 issued by the second respondent and its consequential
notice issued by the 3rd respondent dated 28.08.2021 and quash the
same, consequently direct the respondents to settle the service benefits if
any payable to the petitioner's husband viz., D.Govindan forthwith.
2. The petitioner's husband was an erstwhile employee of the 3rd
respondent society and at one point of time i.e., on 23.05.2008, the
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W.P.No.21029 of 2021
petitioner's husband was sent out from the society stating that he was
temporarily appointed without following the norms and appointment has
been made in this regard.
3. Subsequently, not only against the petitioner's husband but also
against two employees viz., one Rajendran, Secretary of the society and
one Saravanan, Clerk of the society including the petitioner's husband,
there has been proceedings under Section 87(1) of the Tami Nadu
Cooperative Societies Act, 1983 (in short 'the Act') of course, following
the Audit Objection and the Inspection Report of Section 82 of the Act.
4. Felt aggrieved over the said order passed by the 2nd respondent
dated 25.08.2015, those two employees filed writ petition in
W.P.No.32116 of 2015. In the said writ petition, a learned Judge of this
Court, by final order dated 28.06.2016, after having gone through the
issue in detail, has set aside the said order insofar as those two employees
are concerned, where, the learned Judge has stated the following:
"From the above, it is clear that a time limit has been given
under the proviso stating that after expiry of 7 years from
the date of any commission or omission, no action shall be
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W.P.No.21029 of 2021
commenced. Moreover, from the language used in the
section, it is clear that it is only mandatory in nature.
Dehors that, the point which is in favour of the petitioners
is that the 18(1) settlement entered between the employees
and the management, was approved by the 2nd respondent,
who is the author of the impugned proceedings. When the
2nd respondent had given his seal of approval with regard
to 18(1) settlement, the very same officer cannot re-open
the matter stating that it is contrary to the guidelines issued
by the 1st respondent. If it is contrary to the guidelines, the
approving authority should be proceeded with, namely, the
2nd respondent. Without initiating proceedings against the
2nd respondent, the 2nd respondent himself cannot be
allowed to proceed against the petitioners. Therefore, the
impugned order passed by the 2nd respondent cannot be
sustained and the same is set aside. The writ petition is
allowed. No costs. Connected M.P. is closed."
5. The said judgment has been accepted by the respondents and it
has become final.
6. While that being so, insofar as the petitioner's husband is
concerned, since subsequently he died the Section 87 proceedings
initiated against the petitioner's husband along with two others i.e., order
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W.P.No.21029 of 2021
dated 25.08.2015 can be dropped, was the request made by the petitioner,
who is wife of the employee and that was turned out by the 3rd
respondent society in their order dated 28.08.2021, where they have
stated the following:
",t;twpf;ifapy; Rl;of;fhl;oajd;go gpupt[ 87(1)-d;
fPH; mjpfg;goahf tH';fg;gl;l rk;gsj;jpid jpUk;g
tR{ypf;f jz;lf;fl;lz Miz Jizg;gjpthsu;
(tPl;L trjp) nryk; mtu;fs; fojk; e/f/vz; 1778-
2016 < ehs;: 25/08/2015 d;go gpwg;gpj;jhu;fs;/
,j;jz;lf;fl;lz Miz jtwhdJ vd;Wk;. ,jid
uj;J bra;a ntz;oa[k; r';fg;gzpahsu;fs; ,UtUk;
brd;id cau;ej P pkd;wj;jpy; W.P.No.12620-2013. 12621-
2013 kw;Wk; 32116-2015-d; go tHf;F bjhlu;eJ ; jil
Miz bgw;Ws;sdu;/
nkw;go jilahiz kPjhd 28/06/2017-Mk;
njjpa brd;id cau;ePjpkd;w jPu;g;gpy; jz;lf;fl;lz
Mizia uj;J bra;jJld; Jizg;gjpthsu; (tPl;L
trjp) mtu;fspd; mDkjpapd; ngupnyna rk;gsk;
cau;j;jp tH';fg;gl;Ls;sJ vd;Wk;. rk;gs cau;t[
tH';fp VG Mz;LfSf;F gpwF mij uj;J bra;a
,ayhJ vd;Wk;. bjhlu;eJ ; rk;gsk; tH';fplt[k;
Mizaplg;gl;Ls;sJ/
,J bjhlu;ghf cupa eltof;if vLf;f
,t;tpU gzpahsu;fSk; 10/06/2019-y; r';f
jiytUf;F fojk; bfhLf;fg;gl;L r';f epu;thfk;
,jid Vw;W 30/07/2019-Mk; njjp r';f jPu;khdk;
vz;:18d;goa[k;. r';fj;jpd; bghJg;nguit Tl;lk;
jPu;khdk; vz;: 27 ehs;: 19/12/2020-d;goa[k;
Vw;Wf;bfhs;sg;gl;L nkw;fz;l ,U gzpahsu;fspd;
kWf;fg;gl;l rk;gsj;jpid tpLtpf;f cupa Miz
gpwg;gpf;f Jizg;gjpthsu; (tPlL
; trjp) nryk;
kz;lyk;. nryk;. gjpthsu; (tPl;L trjp) brd;id.
Tl;Lwt[ r';f';fspd; jzpf;if cjtp ,af;Feu;
nryk; kw;Wk;. Tl;Lwt[ r';f';fspd; jzpf;if
,af;Feu;. brd;id mtu;fSf;F 02/01/2021-Mk; njjp
r';fj;jiytuhy; cupa Kd;bkhHpt[fs;
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W.P.No.21029 of 2021
mDg;gg;gl;Ls;sJ/ ,k;Kd;bkhHpfs; kPJ K:dW;
khjj;jpw;F nkyhfpa[k; ve;jtpj eltof;ifa[k;
vLf;fhjjhy; 20/04/2021-Mk; njjp nkw;fz;l ehd;F
mYtyu;fSf;Fk; kPz;Lk; r';fj;jhy;
,k;Kd;bkhHpt[fs; mDg;gg;gl;Ls;sJ/ Mdhy;. ,J
bjhlu;ghf ,Jehs; tiu ,k; Kd; bkhHpt[fs; kPJ
ve;jtpj cj;jut[k; gpwg;gpf;fg;glhky; cs;sJ/
vdnt. ,J bjhlu;ghf Tl;Lwt[ tPl;L trjp
r';f';fspd; Jizg;gjpthsu;. nryk; kz;lyk;. nryk;.
Tl;Lwt[ r';f';fspd; jzpf;if cjtp ,af;Feu;.
nryk;. Tl;Lwt[ tPlL ; trjp r';f';fspd; gjpthsu;.
brd;id kw;Wk; Tl;Lwt[ r';f';fspd; jzpf;if
,af;Feu;. brd;id Mfpnahu;fs; mstpy; kl;Lnk
KobtLf;f ,aYk; vd;gjid bjuptpg;gJld;.
j';fspd; nfhupf;if kD epuhfupf;fg;gLfpwJ
vd;gjid bjuptpj;Jf; bfhs;fpnwd;/
7. Felt aggrieved over these two orders passed by the 2nd and 3rd
respondents respectively dated 25.08.2015 and 28.08.2021, this writ
petition has been filed.
8. Heard Mr.M.R.Jothimanian, learned counsel appearing for the
petitioner, who pointed out that, in respect of three employees including
the petitioner's husband, though Section 87 proceedings was initiated
when it was challenged before this Court, the writ petition filed by other
two employees was allowed and the said order which is impugned herein
also dated 25.08.2015 was set aside insofar as those two employees
concerned.
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W.P.No.21029 of 2021
9. When this was pointed out and brought to the notice of the 3rd
respondent-Society by the petitioner, who is the wife of the erstwhile
employee Govindan and to drop the proceedings, the same has been
turned out in the consequential order, which is impugned herein passed
by the 3rd respondent society dated 28.08.2021. Therefore, the learned
counsel would submit that, both the orders passed by both the 2nd
respondent and the consequential order passed by the 3rd respondent,
rejecting the request of the petitioner would not stand in the legal
scrutiny, therefore, he seeks indulgence of this Court.
10. Per contra, Mr.Richardson Wilson, learned Additional
Government Pleader appearing for the 3rd respondent raised a point that,
if at all the order impugned dated 25.08.2015 is to be challenged, it
should have been challenged at the earliest i.e., within a reasonable time,
however, after six years since it has been challenged now. The theory of
latches can very well be applied in this case and and on the ground of
latches, this writ petition cannot be maintained, he contented.
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W.P.No.21029 of 2021
11. He would also submit that insofar as the other two employees
in their favour, the earlier writ petition was allowed since they are
permanent employees, the said judgment dated 28.06.2016 made in
W.P.No.32116 of 2015 cannot be made applicable in the case of the
petitioner's husband who is admittedly an irregularly appointed employee
and for that reason alone, he has been sent out in the year 2008.
Therefore, for these two reasons, the parity sought for in deciding the
issue raised by the petitioner, by citing the earlier order dated
28.06.2016, cannot be applied to the case of the petitioner and
accordingly, the learned Additional Government Pleader appearing for
the 3rd respondent seeks dismissal of this writ petition.
12. The said position has been reiterated by Ms.E.Ranganayagi,
learned Additional Government Pleader appearing for the second
respondent, who would submit that, since the petitioner's husband was
admittedly a temporary employee and was appointed irregularly,
whatever the salary or perquisite paid to him has to be recovered from
him, as there has been an Audit Objection in this regard, therefore,
Section 87 proceedings was initiated. Instead of facing the Section 87
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W.P.No.21029 of 2021
proceedings, the petitioner now has come forward stepping into the shoes
of her husband, as he is no more. Hence, the said request made by the
petitioner has been rightly turned out by the 3rd respondent society
because on the basis of the order passed by the 2nd respondent dated
25.08.2015, therefore, the learned Additional Government Pleader seeks
dismissal of this writ petition.
13. I have heard the said rival submissions made by the learned
counsel appearing for the parties and have perused the materials
available on record.
14. Whether the petitioner's husband was a temporary employee or
he had been appointed irregularly is not the question to be decided
herein. The only question to be decided is, whether anything to be
recovered from the petitioner on behalf of her late husband, who was the
employee, for sometime in the 3rd respondent society.
15. In this regard, when Section 87 proceedings was initiated
through the impugned order dated 25.08.2015, it was initiated not only
against the petitioner, but also in respect of other two employees.
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W.P.No.21029 of 2021
16. Whatever reason the petitioner had not chosen to challenge the
said order, as stated supra, where detailed order has been passed by the
Wit Court on 28.06.2016, as has been quoted herein above and the said
order having been accepted by the respondents, it has become final.
17. Two legal issue has been pointed out by the Learned Judge in
the said order. One is that, there has been a mandatory period of 7 years
as it has been admittedly expired. Therefore, Section 87 proceedings
cannot be initiated. Secondly, there has been a Section 18(1) settlement
between the employees and the employers and when that being so,
contrary to the terms of the settlement, nothing can be proceeded.
18. Assuming that the Section 18(1) settlement may not be
applicable to the temporary employees, insofar as the limitation of 7
years concerned, it would be applicable to all the three persons including
the petitioner's husband. Therefore, on that ground itself, the impugned
order of the 2nd respondent dated 25.08.2015 cannot be sustained.
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W.P.No.21029 of 2021
19. Insofar the plea raised by the learned Additional Government
Pleader for the 3rd respondent that, the writ petition is to be rejected on
the ground of latches is concerned, the action is in continuous one as
after the death of the petitioner's husband, she made a request to drop the
proceedings and that has been now rejected through the consequential
impugned order of the 3rd respondent dated 28.08.2021. Therefore, it
cannot be stated that, it is a case filed with latches and therefore, on that
ground it should be rejected.
20. Insofar as the parity sought for by the petitioner is concerned,
there is a force in the said contention of the learned counsel for the
petitioner because, what has been stated in the order of the learned Judge
dated 28.06.2016 squarely would be applicable to the facts of the present
case, because the very same impugned order was put under challenge and
the validity of the same for more than one reason or ground has been set
aside. Therefore, this Court has no hesitation to hold that the prayer
sought for by the petitioner can very well be granted and accordingly,
this Court feels that, both the orders passed by the 2nd respondent and
the 3rd respondent, which are impugned herein, are liable to be interfered
with.
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W.P.No.21029 of 2021
21. In the result, the impugned orders are quashed and there shall
be a direction to the 3rd respondent society to calculate any arrears of
pay or emoluments anything payable to the petitioner's husband for the
period till he was in service i.e., 23.05.2008 shall be calculated and be
disbursed to the petitioner within a period of four weeks from the date of
receipt of a copy of this order.
22. With this direction, this Writ Petition is ordered accordingly.
However, there shall be no order as to costs. Consequently, connected
miscellaneous petitions are closed.
16.11.2021
Index : Yes / No
Speaking Order : Yes/No
Sgl
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W.P.No.21029 of 2021
To
1.The Registrar of Coop Societies (Housing)
No.48, Ritharttan Road,
Vepery, Chennai - 600 007.
2.The Deputy Registrar (Housing),
East Garden Street,
Fairlands, Salem - 16.11.2021
3.The President,
S.1337, Salem Industrial Employees
Coop. House Construction Society Ltd.,
No.86, Kalaidossar Street,
Narayana Nagar, Salem - 15.
4.The Director
Directorate of Cooperative Audits,
Amma Vazhagam, 2nd Floor,
No.571, Annasalai, Chennai - 600 035.
5.The Assistant Director,
Cooperative Audits,
Sri Lakshmi Complex,
No.76, Cherry Road,
Salem - 636 007.
6.The Government Advocate,
High Court, Madras.
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W.P.No.21029 of 2021
R.SURESH KUMAR, J.
Sgl
W.P.No.21029 of 2021
16.11.2021
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