Madras High Court
Dr.Philip Jeya Singh vs The Government Of Tamil Nadu on 13 April, 2022
W.A(MD)No.1157 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.A(MD)No.1157 of 2011
Dr.Philip Jeya Singh :Appellant/Petitioner
.vs.
1.The Government of Tamil Nadu,
Rep. by its Secretary,
Cooperative Department,
Fort St. George,
Chennai – 9.
2.The Joint Registrar of Cooperative Societies,
Thoothukudi Region,
Thoothukudi.
3.Nazareth Urban Cooperative Bank,
Rep. by its Special Officer, Nazareth,
Thoothukudi District. : Respondents/Respondents
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent praying this
Court to allow this writ appeal and set aside the order passed on 20.12.2010 in
W.P.No.24530 of 2001 and allow the writ petition as prayed for.
For Appellant :Mr.N.Dilip Kumar
For R-1 & R-2 :Mr.J.K.Jeyaseelan,
Government Advocate
For R-3 :Mr.G.Prabhu Rajadurai
1/8
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W.A(MD)No.1157 of 2011
JUDGEMENT
*************
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
This appeal is at the instance of the petitioner in W.P.No.24350 of 2001
challenging the dismissal of the said writ petition.
2. The facts leading to the writ petition are as follows:
The appellant/writ petitioner has joined as Accountant in the third
respondent Bank in the year 1973. He was promoted as Assistant Secretary on
04.10.1974. On 01.07.1977, he was promoted as Secretary. While he was
working as the Secretary, on a complaint by one Varuvel Yesuvadiyan, father of
one Anthony Sekar, who was working as a Clerk in the third respondent Bank
and was dismissed from service, a show-cause notice was issued to the
appellant on 15.04.1989. The appellant gave explanation on 31.05.1989.
Accepting the explanation, the Board dropped further proceedings on
10.06.1989. Thereafter, Special Officer of the Society, took charge and issued
a charge memo on 09.05.1990. This charge memo was challenged by the
appellant in W.P.No.6191 of 1990 and the said writ petition was referred to a
Full Bench on the issue of maintainability of a writ petition against the
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W.A(MD)No.1157 of 2011
Co-operative Society and the Full Bench held against the appellant. The
attempt by the appellant to have the order of the Full Bench overturned by the
Honourable Supreme Court also failed. Even during the pendency of the said
writ petition, the appellant was removed from service on 14.05.19991. After
dismissal of the writ petition, the appellant preferred an appeal before the
appellate authority which was rejected on the ground that it was time barred.
Thereafter, the appellant filed a revision before the Joint Registrar. The Joint
Registrar did not dispose of the revision petition. The appellant filed another
writ petition in W.P.No.3634 of 1995 seeking early disposal of his revision by
the Joint Registrar. After an order was passed in the writ petition, the Joint
Registrar disposed of the appellant's revision on 30.07.1998 revising the
punishment to one of demotion as Assistant Secretary. Since the order of the
Joint Registrar was not implemented, the appellant gave a letter to the third
respondent Bank seeking implementation of the order on an undertaking not to
file an appeal against the order. This undertaking was given on 16.10.1998.
He also undertook not to claim back wages. Immediately, on receipt of the said
letter, on 21.10.1998, order of the Joint Registrar was implemented. The
appellant was taken in service as Assistant Secretary. Thereafter, the appellant
filed a revision under Section 153 of the Tamil Nadu Co-operative Societies
Act, to the Government of Tamil Nadu, challenging the order of the Joint
Registrar. The Government by the order impugned in the writ petition held that
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W.A(MD)No.1157 of 2011
in the Society, there was no practice of taking immovable property as job
security from any employee. But, it however concluded that since the appellant
had on his own has given his property which he sold, as job security, he had
committed a misconduct. The Government therefore, confirmed the order of
the Joint Registrar. This order of the Government made in the revision under
Section 153 of the Tamil Nadu Co-operative Societies Act, was challenged by
the appellant in W.P.No.24350 of 2001. The writ Court unfortunately dismissed
the petition on the ground that the writ petitioner had undertaken not to file
appeal against the order of the Joint Registrar.
3. We do not think that the approach of the writ Court be justified.
Section 153 of the Tamil Nadu Co-operative Societies Act, provides a statutory
remedy of a revision to a person aggrieved by the action of the Joint Registrar.
A statutory remedy cannot be given up or an undertaking cannot be extracted
from a person not to avail a statutory remedy. A statutory remedy cannot be
waived by the party. We therefore, have no hesitation in concluding that the
writ Court erred in dismissing the writ petition on the sole ground that the
appellant had given an undertaking not to challenge the order of the Joint
Registrar. Hence, the order of the writ Court is liable to be set aside and is
accordingly set aside.
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W.A(MD)No.1157 of 2011
4. The next question will be as to whether the writ petition should be
remanded to the writ Court or not. In normal circumstances, we would have
remitted the writ petition to the writ Court. In this case, the appellant, as on
today, is aged about 77 years and if it is relegated to the writ Court, he has to
wait in the queue to get his monitory benefits. We therefore, proceed to
examine the case of the appellant on merits.
5. The only complaint against the appellant was that he had given sale
deed of his immovable property to the Society as job security. It is the
consistent finding of all the authorities that the Society did not have the habit of
receiving immovable property as job security. A fidelity security is also given
by the employees. It is not known under what circumstances, the sale deed was
handed over to the Society by the appellant. Merely because he has handed
over the sale deed containing a larger extent of property after having sold a part
of the property, it cannot be construed that there was intention on the part of the
appellant to cheat the Society. It would not amount to misconduct.
6. We should also point out that a show-cause notice was issued by the
Board of the third respondent Bank on 15.04.1989 and on 10.06.1989, the
Board has dropped the entire proceedings. Therefore, the proceeding that
commenced with the charge memo on 09.05.1990, in our considered opinion, is
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W.A(MD)No.1157 of 2011
wholly without jurisdiction. Unfortunately, the authorities have failed to advert
to this aspect. Even assuming that the proceedings initiated by the charge
memo dated 09.05.1990 are valid, in the absence of any provision in bylaws of
the Society requiring an employee to give immovable property as job security,
the fact that the appellant has furnished a sale deed, cannot be construed as a
misconduct. Even the Government has found that there was no such
requirement. It is also not stated that under what circumstances, the sale deed
was handed over to the third respondent Bank.
7. In such circumstances, we are unable to sustain the order of
punishment. The order of punishment has to be set aside and is accordingly set
aside. The writ petition still stand allowed.
8. We however make it clear that the appellant had given up his claim for
back wages. Therefore, he would be entitled to pay protection as if he had
continued his service as a Secretary till his retirement. Pensionary benefits
shall be calculated as if he continued as Secretary and the arrears of pension
shall be paid within six months from the date of receipt of a copy of this order.
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W.A(MD)No.1157 of 2011
In the result, the writ appeal is allowed. No Costs.
[R.S.M.,J.] [N.S.K.,J.]
13.04.2022
Index:Yes/No
Internet:Yes/No
pm
To
1.The Secretary,
Government of Tamil Nadu,
Cooperative Department,
Fort St. George,
Chennai – 9.
2.The Joint Registrar of Cooperative Societies,
Thoothukudi Region,
Thoothukudi.
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W.A(MD)No.1157 of 2011
R.SUBRAMANIAN,J.
AND
N.SATHISH KUMAR , J.
pm
JUDGMENT MADE IN
W.A(MD)No.1157 of 2011
13.04.2022
https://www.mhc.tn.gov.in/judis
