Madras High Court
S.307 vs V. Viswanathan on 28 September, 2021
1 W.A.Nos.2220 & 2466 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.09.2021
Coram
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
W.A.Nos.2220 & 2466 of 2021
and CMP.Nos.14045 & 15857 of 2021
1. S.307, Muthukalipatti Primary
Agricultural Co-operative Credit Ltd.,
Rep by its President,
Rasipuram Post,
Namakkal District – 637 408 ... Appellant
in both W.As.
Vs.
1. V. Viswanathan
2.The Joint Registrar of Co-operative
Societies/Common Cadre Authority,
Namakkal Region, Namakkal.
3.The Deputy Registrar of the
Co-operative Societies
Namakkal Circle, Namakkal. ... Respondents
in both W.As
COMMON PRAYER:- Writ appeals are filed under clause 15 of the Letter
Patent act to set aside the order passed in Review Application in 42 of 2021
dated 19.03.2021 and to set aside the order passed in WP.No.34818 of 2019
https://www.mhc.tn.gov.in/judis
dated 23.01.2020.
For Appellants : Mr.R.Balaramesh,
in both WAs
For Respondent : Mr.M.S.Palanisamy for R1
Mr.K.T.S. Tippu Sultan
Government Advocate (for R2 & R3)
in both WAs
COMMON JUDGMENT
(Judgment of the Court was made by S.VAIDYANATHAN, J.)
The present appeals have been preferred challenging the order dated
19.03.2021 passed in Review Application No. 42 of 2021 and the order dated
23.01.2020 passed in WP.No.34818 of 2019.
2. The issue in these writ appeals is that whether the Government
Order No.14, Co-operation, Food and Consumer Protection (CN1)
Department dated 12.02.2019 will prevail over or the bye-law based on
which the employee has been placed under suspension, prior to the common
cadre service Rules came into force. Even though it has been contended by
the appellant that the G.O. has been communicated only on 04.06.2019 and
that it will come into operation only from that date, we are of the view that it
is only a communication, but it will take effect from the date of issuance of
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G.O. and not from the date of communication. In the case on hand, the
employee who was placed under suspension has been charge sheeted on
06.03.2019 and he was relieved from service on 31.05.2019, after coming
into force of the G.O., showing that the appellant herein reserves the right to
proceed against the employee departmentally.
3. Mr.Palanisamy, learned counsel for the writ petitioner/first
respondent would draw the attention of this Court to Section 75(ii) of Tamil
Nadu Co-operative Societies Act, 1983 and the relevant portion is extracted
below.
75. Constitution of common cadre of service.
(2) When any such common cadre of service is constituted
under sub-section (1) in respect of any post, all the employees
holding such posts on the date of constitution of such common
cadre of service, shall be deemed to have been absorbed in the
common cadre of service with effect from on and from the date of
constitution of such common cadre of service:
Provided that the salary (including allowances) of any such
Employee shall not be varied to his disadvantage:
Provided further that any such Employee may, within such
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period may be prescribed, by notice in writing to the Competent
Authority constituted under sub-section (3) intimate his option for
not becoming a Member of such common cadre of service, and in
that event, his service in the registered Society shall stand
determined with effect on and from the date of such notice and he
shall be entitled to either,
4. He would further submit that on creation of common cadre, the bye
law ceased to operate and that they will be governed by the clauses in the
G.O. which will have a statutory force. Hence the orders of the learned single
Judge in interfering with the order impugned in the writ petition and in the
review are perfectly valid and need not be interfered with.
5. Heard both sides.
6. It is not in dispute that the employee was suspended for an incident
prior to coming into force of the common cadre service Rules. For the sake of
convenience the relevant portion of G.O. namely 30 (1)(i) is extracted below.
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30. Disciplinary proceedings:- (1) The disciplinary proceedings referred
to in sub-rule (4) of rule 29 against a Common Cadre Employee shall be
conducted with due observance of the principles of natural justice for
which it shall be necessary that:-
(i) The Common Cadre Employee shall be served with a charge
sheet duly approved by the Common Cadre Authority containing
specific charges and mention of grounds in support of each charge and
he shall be required to submit explanation in respect of the charge
within a reasonable time which shall not be loss than fifteen (15) days.
7. Any disciplinary proceedings commenced against the Common
Cadre Employees of a Society before the Government of these rules and
still continuing shall as far as may be deemed to have been commenced
under these rules and may be continued accordingly.”
29. AUTHORITY COMPETENT TO IMPOSE PENALTIES
The authority competent to impose the penalties on all categories
of employees shall be the Board.
30. IMPOSITION OF PENALTIES
(1) (a) No penalty shall be imposed on any employee unless he
has been given a reasonable opportunity of making any representation
he may desire to make and such representation, if any, shall be taken
into consideration before orders are passed.
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(b) No major penalty specified in Special bylaw No.'28'
shall be imposed on any employee, unless a domestic inquiry is
conducted and the employee concerned has been afforded an
opportunity to defend himself:
Provided that nothing contained in this special bylaw
shall apply in the case of removal of an employee under Section 77 of
the Act.
(2) Every order imposing penalty shall be communicated to the
employee concerned in writing stating the grounds on which the penalty
has been imposed.
(3) Every penalty of fine imposed under this special bylaw shall
be in accordance with the provisions of Section 35 of the Tamil Nadu
Shops and Establishments Act, 1947 ( Tamil Nadu Act XXXVI of1947
and the rules relating thereto, and for the said purpose the reference to
the prescribed authority occurring in the said Section 35 shall be
construed as a reference to the registrar. However, no penalty by way of
find shall be imposed on any employee above the clerical or equivalent
cadre of staff.
7. Unless otherwise the bye-law provides, the employee cannot be
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proceeded against after retirement. This will be applicable to all categories
provided they do not come under the purview of G.O. dated 12.02.2019
creating common cadre. Once he comes into the common cadre, for the
incident that took place prior to 12.02.2019, the authority competent to deal
with the employees in the common cadre is entitled to proceed with the
enquiry, but it shall be done only in terms of the clauses mentioned in the
G.O. The G.O. has no where stated that the employee could be continued to
be kept under suspension even after attaining the age of superannuation or
there is no saving clause in the G.O. that if there are any conflict between the
bye-law and the G.O, the clauses that are not going to be affected by the G.O.
would continue to be in operation. In the absence of the enabling provision to
continue departmental action of those employees falling under the common
cadre, even though the incident would have taken place much prior to G.O.
dated 12.02.2019, in the absence of specific clause in the G.O. to proceed
departmentally after retirement, the appellant cannot proceed with the
departmental action against the writ petitioner.
8. Hence we are of the view that the orders of the learned single Judge
passed in the review petition and in the writ petition need not be interfered
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with. This Court makes it very clear that it is open to the Government to
make suitable amendments to the G.O. to enable continuation of the
departmental proceedings even after retirement of the employee, but,
however, for the writ petitioner, no further action could be continued. All the
benefits due to the employee shall be settled within a period of four months
from the date of receipt of a copy of the judgment.
9. With the above observation, both the writ petitions are dismissed.
No costs.
(S.V.N.J.,)
(A.A.N.J.,)
28.09.2021
dpq
Index: Yes/No
Internet: Yes/No
Speaking order/Non-speaking order
To
1.The Joint Registrar of Co-operative
Societies/Common Cadre Authority,
Namakkal Region, Namakkal.
2.The Deputy Registrar of the
Co-operative Societies
Namakkal Circle, Namakkal.
https://www.mhc.tn.gov.in/judis
S.VAIDYANATHAN, J.
and
A.A.NAKKIRAN, J.
dpq
W.A.Nos.2220 & 2466 of 2021
and CMP.Nos.14045 & 158857 of 2021
https://www.mhc.tn.gov.in/judis
28.09.2021
https://www.mhc.tn.gov.in/judis
