Madras High Court
M. Alagarsamy vs The Additional Registrar on 4 February, 2022
W.P. No.699 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.02.2022
CORAM
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.P. No.699 of 2010
and
M.P. No.1of 2010
M. Alagarsamy ... Petitioner
Vs.
1. The Additional Registrar
(Sale Project & Development)
Co-operative Societies
Registrar Office, (NVN Malagai)
170, Periyar EVR High Road,
Keelpauk, Chennai – 10.
2. The Joint Registrar/President
Public Service Committee,
Tiruvarur Zone,
Thiyagarajapuram, Tiruvarur.
3. The Special Officer,
Z-789, Narthangudi Co-operative
Credit Society, Narthangudi & Post,
Nidamangalam – 614404,
Tiruvaru District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying to issue a Writ of Certiorarified Mandamus to call for the
impugned order dated 02.11.2009 made in Na.Ka.No.89604/09 Sapal on the
file of the 1st Respondent and quash the same and direct the Respondents to
promote me as Secretary of the 3rd Respondent co-operative Society.
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W.P. No.699 of 2010
For Petitioner : Mr.J.Nandagopal
For Respondents : Mr.Vadivelu Dheenaidaylan,
Additional Government Pleader
ORDER
This writ petition is filed challenging the order passed by the 1st
Respondent under Section 153 of the Tamil Nadu Co-operative Societies
Act 1983 in Na.Ka.No.89604/09 Sapal dated 02.11.2009, to quash the same
and to further direct the Respondents to promote the petitioner as Secretary
of the 3rd Respondent Society.
2. Brief facts that may be relevant are set-out hereunder:
a. The petitioner was appointed in the 3rd Respondent Society as
Attender on 01.07.1973. The petitioner was thereafter promoted as Clerk,
Assistant Secretary and finally as Secretary of the 3rd respondent Society in
the year 1991. During the audit for the year 2002-2003 of the 3rd
Respondent Society, the auditor found certain irregularities and submitted a
special report for further action. In the mean while an inspection report was
also submitted stating various irregularities in the Savings Bank accounts of
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W.P. No.699 of 2010
the 3rd respondent Society. On perusal of the special report and the
inspection report the Deputy Registrar ordered an inspection under Section
82 of the Tamil Nadu Co-operative Societies Act, 1983. The Inspection
Officer submitted a report recommending disciplinary action against the
petitioner. Pursuant thereto the Deputy Registrar directed the Special
Officer to send a proposal along with a draft charge memo for the approval
of the Thiruvarur Region Primary Agricultural Co-operative Bank,
Secretary, Common Cadre Committee. There were 5 charges originally
framed against the petitioner out of which charges 1, 2 and 4 was found to
be proved and is the subject matter of challenge in this writ petition viz.,
i) Charge 1: Misappropriation of funds from Savings Account and
tampering with the accounts.
ii) Charge 2: Misappropriation of funds by tampering with the
accounts and misuse of the cheques of account holders.
iii) Charge 4: Advances being paid to the staff without obtaining
necessary permission and sanction of the Special Officer.
3. On perusal of the proposal it was resolved by the committee to take
disciplinary action against the petitioner and the charge memo was
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W.P. No.699 of 2010
approved, which was served on the petitioner on 20.09.2007. The Special
Officer appointed a Domestic Enquiry Officer to conduct the enquiry in
compliance with the procedures set out in the Rules and Regulations for
such Domestic Enquiry. After giving the petitioner adequate opportunity
and after obtaining the petitioner's explanation the Domestic Enquiry
Officer submitted his report on 05.12.2007 which was in turn submitted
before the Common Cadre Committee for perusal. The Committee resolved
to accept the Domestic Enquiry Report wherein it was found that three out
of the five charges namely charges 1, 2 and 4 were proved. The Committee
also resolved to forward its decision along with Domestic Enquiry report to
the petitioner and to obtain his explanations, if any, on the decisions of the
committee vide its resolution dated 31.07.2008. The same was duly served
on the petitioner through the Joint Registrar of Co-operative Societies.
Though it was initially proposed to dismiss the petitioner from service,
however the Common Cadre Committee considering the plea of the
petitioner that the order of dismissal from service would adversely affect his
family and thus imposition of a lesser punishment may be considered on
humanitarian grounds.
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W.P. No.699 of 2010
4. On consideration of the material on record and gravity of the
charges and also the plea of the petitioner for consideration of lesser
punishment on humanitarian grounds. The 3rd respondent vide order dated
03.01.2009 imposed the punishment of reduction in rank from the post of
Secretary to that of Assistant Secretary and fixed his pay and allowances on
the scale as it existed in the year 1999.
5. Aggrieved by the same the petitioner filed a revision petition on
07.05.2009 to the Additional Registrar of Co-operative Societies which was
rejected on the ground of delay.
6. Aggrieved by the same the petitioner preferred a W.P. No. 13913
of 2009, wherein this Court by an order dated 22.07.2009 was pleased to
direct the revision petition to be entertained and to pass orders on merits
thereon and granted an opportunity to the petitioner to put forth his
contention within a period of three months from the date of receipt of a copy
of the order. Pursuant to the above directions of this Court, the revision
petition was heard and disposed of vide order dated 02.11.2009, confirming
the order of the Special Officer and Joint Registrar of Co-operative
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W.P. No.699 of 2010
Societies.
7. Aggrieved by the above order of the Revisional Authority, the
petitioner has filed this petition.
8. Before we proceed further it is relevant to note that the petitioner
had admitted before the enquiry officer that he had misappropriated the
funds from savings account by manipulating/tampering with the accounts
with regard to Charge 1. Again, with regard to charge No.2 it was seen that
misappropriation of funds by tampering with the accounts and misuse of the
cheques of the account holders was admitted by the petitioner whose only
defence was that the funds so misappropriated has been repaid with
interest. With regard to charge No.4 viz., that the petitioner had without
obtaining the permission of the Appropriate Authority had granted salary
advance resulting in loss to the 3rd Respondent Society, which was also
admitted to by the petitioner.
9. Importantly, the petitioner had admitted all the three charges before
the enquiry officer and it was found in the impugned order that the
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W.P. No.699 of 2010
petitioner had also admitted to the above allegations before the Inspection
officer and the Domestic Enquiry Officer. It was found by the first
respondent in the impugned order that the petitioner had misappropriated
funds by tampering/manipulating entries in the savings bank account. The
Society suffered huge losses, in view of the wrong entries in the savings
account and Sales omission, apart from the advances paid to the staff
without obtaining necessary permission and sanction of the Special Officer
in gross violation of Code of Conduct.
10. The learned counsel for the petitioner submitted that the
impugned order is unsustainable primarily on the following grounds viz.,
a. That the impugned order is bad in law as it has been made violation
of principles of natural justice.
b. The punishment of reduction of rank from the post of Secretary to
Assistant Secretary and also fixing the pay scale existing in the year 1999
would amount to double jeopardy and that it is excessive and
disproportionate to the charges.
11. To the contrary it was submitted by the learned counsel for the
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W.P. No.699 of 2010
respondent that the petitioner having admitted charges 1, 2 and 4 relating to
misappropriation which is grave does not warrant any leniency. It was
further submitted that Courts have repeatedly held that with regard to any
act of misappropriation the delinquent does not deserve any leniency for the
act of misappropriation shakes the confidence/faith of the employer and
thus prayed for the dismissal of the writ petition.
12. On going through the entire records and also the submissions of
the learned counsel for the petitioner and the learned counsel for the
respondents the challenge to the impugned order would have to fail for the
following reasons:
A. Violation of principles of Natural Justice:
Insofar as the ground that the impugned orders suffers from violation
of natural justice, we find that the same is contrary to the facts and material
on record which would show that the above ground is clearly baseless. In
this regard it may be relevant to record and note that the Revisional
Authority while dealing with the ground of violation of natural justice has
found that the same is not sustainable inasmuch as the petitioner had
admitted all the charges and had not submitted any explanations to the
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W.P. No.699 of 2010
proposal to initiate disciplinary action. Further, the Domestic Enquiry
Officer had issued a summon on 01.10.2007 intimating the petitioner that
the enquiry would be conducted on 11.10.2007. Pursuant thereto enquiry
was conducted on 11.10.2007 and 26.11.2007. It was thus found by the
Revisional Authority that the above would show that the petitioner was
provided with adequate opportunity and the plea of violation of natural
justice is specious and baseless. Further, the plea of double jeopardy is on
the ground of misconception and cannot be sustained.
Misappropriation – No room for leniency:-
13. The charge of misappropriation and misuse of funds of the 3rd
Respondent Society by the petitioner and which is also admitted to by the
petitioner is serious and grave. In this regard, it may be useful to refer to the
following judgments wherein the charge of misappropriation has been found
warranting severe punishment and it has been consistently held that there is
no place for generosity or misplaced sympathy in such cases.
a. In the case of U.P. SRTC v. Vinod Kumar, (2008) 1 SCC 115 :
(2008) 1 SCC (L&S) 1 : 2007 SCC OnLine SC 1479 at page 118 wherein
it was held as follows:
"10....This Court in a number of judgments has held that
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W.P. No.699 of 2010
the punishment of removal/dismissal is the appropriate
punishment for an employee found guilty of misappropriation
of funds; and the courts should be reluctant to reduce the
punishment on misplaced sympathy for a workman. That, there
is nothing wrong in the employer losing confidence or faith in
such an employee and awarding punishment of dismissal. That,
in such cases, there is no place for generosity or misplaced
sympathy on the part of the judicial forums and interfering
with the quantum of punishment...."
b. In the case of Secretary to the Panchayat Raj v. Mohd.
Ikramuddin, 1995 SCC (L&S) 1246 at page 1247 wherein it was held as
follows:
"4. It is not necessary for us to deal with any other finding
reached by the High Court because we are of the view that the
charge of misappropriating and misusing the government funds
is proved against the respondent on his own admission. This
alone is sufficient to warrant the dismissal of the respondent
from the service. We, therefore, allow the appeal, set aside the
impugned judgment of the Tribunal and uphold the dismissal of
the respondent from service. No costs."
In the case of Janatha Bazar (South Kanara Central Coop.
Wholesale Stores Ltd.) v. Secy., Sahakari Noukarara Sangha, reported in
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W.P. No.699 of 2010
(2000) 7 SCC 517 wherein it was held as follows:
"Apparently, it would be an unjustified direction to
reinstate an employee against whom charge of
misappropriation is established. A proved act of
misappropriation cannot be taken lightly even though a
number of such misappropriation cases remain undisclosed
and such employees or others amass wealth by such means. In
any case, misappropriation cannot be rewarded or legalised
by reinstatement in service with full or part of back wages."
14. It may also be relevant to note that the submissions of the
petitioner that the misappropriated fund has been re-paid with interest only
needs to be noticed to be rejected. In this regard it may be relevant to refer
the decision of the Supreme Court in the case of Narendra Nath Bhalla v.
State of U.P., reported in (2007) 15 SCC 775 wherein it was held that the
repayment of money does not absolve the employee who is found guilty of
the serious charge of misappropriation and the relevant portion is extracted
hereunder:
"Learned counsel for the appellant also submitted that
the appellant has already paid back the money which was held
proved against him that he had misappropriated. Mere
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W.P. No.699 of 2010
repayment of money does not absolve him of serious charge of
misappropriation. The last submission that the punishment
imposed on the appellant is too harsh also does not appeal to
us, having regard to the serious nature of charges including
the misappropriation of money and issuing a receipt on plain
paper and reflecting it in the official record as something
else..."
15. In view of the above we do not find any reason to interfere with
the order of the first respondent and this writ petition stands dismissed. No
costs. Consequently, the connected miscellaneous petition is closed.
04.02.2022
Speaking (or) Non-Speaking Order
Index: Yes/No
Internet: Yes/No
smn
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W.P. No.699 of 2010
MOHAMMED SHAFFIQ, J.
smn
To
1. The Additional Registrar (Sale Project & Development)
Co-operative Societies Registrar Office, (NVN Malagai)
170, Periyar EVR High Road, Keelpauk, Chennai – 10.
2. The Joint Registrar/President Public Service Committee,
Tiruvarur Zone, Thiyagarajapuram, Tiruvarur.
3. The Special Officer,
Z-789, Narthangudi Co-operative
Credit Society, Narthangudi & Post,
Nidamangalam – 614404,
Tiruvarur District.
W.P. No.699 of 2010
and
M.P. No.1of 2010
04.02.2022
https://www.mhc.tn.gov.in/judis
