Madras High Court
N.Natarajan vs The Principal Secretary / ... on 15 June, 2022
W.P.(MD) Nos.7518 and 7824 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.06.2022
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD) Nos.7518 and 7824 of 2020
and W.M.P.(MD)Nos.7003, 7004, 7300 and 7302 of 2020
W.P.(MD).No.7518 of 2020
N.Natarajan ... Petitioner
Vs.
1.The Principal Secretary / Industries Commissioner
and Director of Industries and Commerce /
Registrar of Industrial Co-operatives,
Guindy, Chennai – 600 032.
2.The Deputy Director / Enquiry Officer U/s.81,
Department of Industrial Co-operatives,
No.12, Alanthur Road, C.T.A.L. Complex,
Guindy, Chennai – 600 032.
3.The Assistant Director (IC) / Secretary / Surcharge Enquiry Officer,
Chennai, Autorickshaw Drivers Industrial Co-operative Society Limited,
No.258/849, Periyar E.V.R.High Road,
Kilpauk, Chennai – 600 010. ... Respondents
PRAYER : Writ petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorari, calling for the records relating to the impugned
proceedings of the 1st respondent initiating second enquiry U/s 81 of Tamil
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W.P.(MD) Nos.7518 and 7824 of 2020
Nadu Co-op. Societies Act as against the petitioner vide Proces.RC.No.
2415/1CB/2016 dt. 26.11.2018, consequential second enquiry report filed by
the 2nd respondent dt. 28.03.2019 and consequential impugned second
surcharge order U/s 87 issued by the 3rd respondent dt. 11.03.2020 and quash
the same insofar as the petitioner is concerned.
For Petitioner : Mr.Gowrishankar for Mr.S.Karthikeyan
For Respondents : Mr.Aswin Rajasimman for R1
M/s.T.Lajapathi Roy
W.P.(MD).No.7824 of 2020
N.Natarajan ... Petitioner
Vs.
1.The Additional Director (Industrial Co-operative) / Managing Director,
The Tamil Nadu Industrial Co-operative Bank Limited,
No.36, Sougth Canal Bank Road,
Raja Annamalaipuram,
Mandavelipakkam,
Chennai – 600 028.
2.The Branch Manager,
The Tamil Nadu Industrial Co-operative Bank Limited (Taico),
Karur, Karur District. ... Respondents
PRAYER : Writ petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorari, calling for the records relating to the impugned
proceedings of the 1st respondent vide proceedings in
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W.P.(MD) Nos.7518 and 7824 of 2020
Paniyalar/E1/Va.Pa/2019-2020, dated 01.07.2020 and quash the same insofar
as the petitioner is concerned.
For Petitioner : Mr.Gowrishankar for Mr.S.Karthikeyan
For Respondents : Mr.Aswin Rajasimman
M/s.T.Lajapathi Roy
COMMON ORDER
Heard the learned counsel for the petitioners and the learned counsel
appearing for the respondents.
2.The petitioner herein, who was in-charge as a Branch Manager in
TAICO Bank, Tiruvotriyur Branch, Thiruvaloor District, between 13.10.2014
and 18.12.2014, was subjected to an enquiry under Section 81 of the Tamil
Nadu Co-operative Societies Act (herein after referred to as 'the Act') on
08.02.2016. Based on the Enquiry Report, dated 20.06.2016, the Disciplinary
Authority had exonerated the petitioner from the charges through an order
dated 19.02.2020. In the meantime, the first respondent herein had initiated
proceedings under Section 87 of the Act on 14.11.2016 and based on the
enquiry conducted, a report came to be filed on 02.01.2018. While that being
so, the first respondent had initiated the second enquiry proceedings under
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W.P.(MD) Nos.7518 and 7824 of 2020
Section 81 of the Act on 26.11.2018, even before the Disciplinary Authority
had rendered his findings pursuant to the earlier enquiry conducted on
08.02.2016 under Section 81 of the Act. Subsequently, the third respondent
herein had passed the surcharge order under Section 87 of the Act on
11.03.2020, in pursuance to the enquiry report, dated 02.01.2018.
Consequently, the alleged loss was recovered from the petitioner through
another order dated 01.07.2020.
3.The second enquiry proceedings under Section 81 of the Act, dated
26.11.2018, the Enquiry Report, dated 28.03.2019 as well as surcharge order
under Section 87 of the Act, dated 11.03.2020, are under challenge in the writ
petition in W.P.(MD).No.7518 of 2020. The consequential order of recovery,
dated 01.07.2020, is under challenge in the writ petition in W.P.(MD).No.7824
of 2020.
4.The learned counsel for the petitioner submits that the respondents
have no authority to proceed against the petitioner for the second time on the
same cause of action. The learned counsel appearing for the respondent Bank
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W.P.(MD) Nos.7518 and 7824 of 2020
submitted that since the petitioner has an alternate remedy of challenge against
this order, these writ petitions suffer from merits.
5.Admittedly, the enquiry under Section 81 of the Act initiated on
08.02.2016 and 26.11.2018 are for the same cause of action, whereby, the
petitioner herein was alleged to have approved seven jewel loans relating to
spurious jewels, while he was in-charge as a Bank Manager in TAICO Bank,
Tiruvotriyur Branch. Such action of the respondents in proceeding against the
petitioner for the same cause of action for the second time is impermissible in
law.
6.The Honourable Supreme Court in the case of Lt.Governor, Delhi
and others Vs. HC Narinder Singh reported in (2004) 13 SCC 342, has held
that, two proposed actions, on the same cause of action, would amount to
double jeopardy, which is impermissible. In line with the ruling of the
Honourable Supreme Court in HC Narinder Singh's case (Supra), the present
impugned proceedings for the same cause of action, which arose when the first
proceedings initiated on 08.02.2016 was issued, cannot be sustained.
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W.P.(MD) Nos.7518 and 7824 of 2020
7. There is yet another aspect to the case in hand. Even assuming that
the present charges differ from the earlier proceedings, dated 08.02.2016, it
could be seen that the cause of action, for which the present proceedings,
dated 26.11.2018 has been issued in existence when the earlier proceedings,
dated 08.02.2016 came to be issued. While that being so, if the second charge
memo is even assumed to be different from the first charge memo, nothing
prevented the respondents from implicating the petitioner with the present
impugned charges, when the earlier disciplinary proceedings came to be
initiated through the proceedings, dated 08.02.2016. In other words, the
respondents are now conducting the disciplinary proceedings on a piece-meal
basis, which impermissible.
8. I had an occasion to consider this aspect in the case of
L.T.Palanisamy Vs. The Secretary to Government of Tamil Nadu,
Agricultural Department and others, in W.P.Nos.14071 and 24327 of 2014
and passed an order, dated 21.04.2022, by placing reliance on a decision of the
Honourable Division Bench of this Court. The relevant portion of the order
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reads as follows:
“9. At the time of issuance of the charge memo
for the incident that took place in the year 2002-03, the
alleged lapses for the year 2001-02 was very much
available, which the respondents failed to invoke when
the first charge memo in the year 2007 was issued.
Such a piece meal enquiry was held to be
impermissible by a Hon'ble Division Bench of this
Court in the case of R. Rajkumar Vs. The
Commissioner of Police, Trichy City, Trichy reported
in 2014 (2) CTC 769. In the said judgment, the Hon'ble
Division Bench had also taken into account the delay
in initiating the disciplinary proceedings, as another
factor for quashing the proceedings. The relevant
portion of the order reads as follows:-
“12. We have perused the cause of action for the
proceedings initiated by the Department in the
first charge memo as well as the second charge
memo, which is the complaint of the said A.
Roche, who approached the officers of the Police
Department for getting 'No Objection Certificate'
to set up a fire cracker shop. The Charge Memo
dated 07.04.2005 is based on the Complaint
given by A. Roche dated 08.11.2001, wherein he
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W.P.(MD) Nos.7518 and 7824 of 2020
stated that the Police Authorities including the
Appellant were delaying the issuance of 'No
Objection Certificate' and also demanded bribe.
It is the case of the complainant that a sum of Rs.
8000/- (Rupees Eight Thousand Only) was
demanded by the Appellant through Loganathan,
Grade I-Police Constable. The Department in this
case chose to proceed against the Appellant on
various misconducts which include the complaint
of the said A. Roche dated 08.11.2001, but for
some reason or other, did not choose to issue a
Charge Memo in respect of the allegation
relating to illegal gratification. On the first
charge memo dated 07.04.2005, enquiry was
conducted and punishment was imposed and the
matter was put to rest then and there. Thereafter,
the matter has been resurrected after more than
seven years and the second charge memo is
issued and this is also based on the complaint of
the said A. Roche dated 08.11.2001. it is,
therefore, clear that the basis for the first charge
memo and the present charge memo is one and
the same. It is another matter that the first charge
contained other issues as well. The fact remains
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W.P.(MD) Nos.7518 and 7824 of 2020
that on the plea of illegal gratification, the
Department did not choose to proceed and
further. In any event the criminal case with
regard to the demand of illegal gratification
ended in acquittal. The decisions of the Hon'ble
Apex Court in Capt. M. Paul Anthony's case
referred to supra and G.M. Tank's case,
respectively, would clearly cover the issue on
hand. Furthermore, the Division Bench of this
Court has clearly held that the fresh proceedings
on the basis of the same issue and on the same
set of allegations and corresponding materials, is
not sustainable. Therefore, the learned Single
Judge was not correct in dismissing the Writ
Petition overlooking this legal plea.
13.The impugned proceedings is liable to be
interfered with for the following reasons:
i)Comparison of two charge memos clearly
reveals that both the charges are framed based on
the same complaint dated 08.11.2001 given by
the Complainant -A. Roche.
ii)The materials forming basis of the
second charge memo was also available at the
time of framing the first charge memo.
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W.P.(MD) Nos.7518 and 7824 of 2020
iii)The Respondent cannot conduct the
Departmental enquiry in a peace meal manner,
according to their whims and fancies.
iv)The delay in framing charges will
definitely cause prejudice to the Appellant, as he
has put forth his defence during the first enquiry
and also in the trial before the Criminal Court.
v)Pending Writ Appeal, the Appellant was
acquitted by a Competent Criminal Court after
full fledged trial. But acquittal in Criminal
proceedings is not a bar for the Department to
initiate Departmental proceedings on the same
set of facts. But, in the present case, the acquittal
in Criminal case has to be considered in favour
of the Appellant, as he has faced domestic
enquiry on earlier occasion and suffered
punishment and the issue raised in the present
charge memo was given by seven years ago.
vi)If the present charge memo is not quashed, the
appellant will be forced to another enquiry on the
basis of the complaint dated 08.11.2001 and on
the same set of facts and materials.”
10. In the light of the aforesaid pronouncements
in Anant R. Kulkarni's case (supra), the circumstances
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and the manner in which the charges came to be
framed against the petitioners are weighed. Apart from
the delay in initiating the departmental proceedings,
the charges have also been found to be vague and
unspecified, which is contrary to the procedure
contemplated under the Rules. Moreover, when the
Hon'ble Division Bench of this Court has held that the
disciplinary proceedings cannot be held in piecemeal
manner, splitting the charges for the year 2002-2003
and then for the year 2001-2002, is impermissible.”
9.The aforesaid extract is self explanatory. Thus, when the law does not
permit the respondents to conduct disciplinary proceedings in installments, for
the cause of action that existed even when the first disciplinary proceedings
was initiated, the present impugned proceedings cannot be sustained. Since I
have now held that the second proceedings initiated by the respondents under
Section 81 of the Act is unsustainable in law, the consequential recovery order
dated 01.07.2020 is deemed to be illegal.
10.The learned Standing Counsel for the respondents has raised a
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W.P.(MD) Nos.7518 and 7824 of 2020
ground that in view of the alternate remedy against the impugned orders, the
writ petition cannot be sustainable. I am not in agreement with such
submission. When the impugned proceedings is apparently un-sustainable in
law, the petitioner need not be subjected to the arduous task of approaching
the Appellate Authority.
11.The Honourable Supreme Court in the case of Commissioner of
Income Tax and others Vs. Chhabil Dass Agarwal held as follows:
19. Thus, while it can be said that this Court has
recognized some exceptions to the rule of alternative
remedy, i.e., where the statutory authority has not
acted in accordance with the provisions of the
enactment in question, or in defiance of the
fundamental principles of judicial procedure, or has
resorted to invoke the provisions which are repealed,
or when an order has been passed in total violation of
the principles of natural justice, the proposition laid
down in Thansingh Nathmal case, Titagarh Paper
Mills case and other similar judgments that the High
Court will not entertain a petition under Article 226 of
the Constitution if an effective alternative remedy is
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W.P.(MD) Nos.7518 and 7824 of 2020
available to the aggrieved person or the statute under
which the action complained of has been taken itself
contains a mechanism for redressal of grievance still
holds the field. Therefore, when a statutory forum is
created by law for redressal of grievances, a writ
petition should not be entertained ignoring the
statutory dispensation.”
12.At this juncture, the learned counsel for the petitioner submitted that
since they are of the view that the jewel appraiser may be involved in the
present case or directly liable for the loss occurred to the Bank, they may be
granted liberty to proceed against these jewel appraiser.
13. For all the foregoing reasons, the impugned impugned proceedings
of the 1st respondent initiating second enquiry U/s 81 of Tamil Nadu Co-op.
Societies Act as against the petitioner vide Proces.RC.No.2415/1CB/2016 dt.
26.11.2018, consequential second enquiry report filed by the 2nd respondent dt.
28.03.2019 and consequential impugned second surcharge order U/s 87 issued
by the 3rd respondent dt. 11.03.2020 and the impugned proceedings of the 1st
respondent vide proceedings in Paniyalar/E1/Va.Pa/2019-2020, dated
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W.P.(MD) Nos.7518 and 7824 of 2020
01.07.2020 are quashed. Consequently, there shall be a direction to the
Additional Director (Industrial Co-operative)/Managing Director of Tamil
Nadu Industrial Co-operative Bank Limited, to forthwith refund the salaries
recovered from the petitioner, pursuant to the impugned order dated
01.07.2020, within a period of four weeks from the date of receipt of a copy of
this order. The respondent bank are at liberty to proceed against the actual
persons, who may liable for the loss that is alleged to have occurred to the
Bank.
14.Accordingly, both the writ petitions stand allowed. No costs.
Consequently, connected miscellaneous petitions are closed.
15.06.2022
Index : Yes / No
Speaking Order/ Non Speaking Order
TM
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W.P.(MD) Nos.7518 and 7824 of 2020
To
1.The Principal Secretary / Industries Commissioner
and Director of Industries and Commerce /
Registrar of Industrial Co-operatives,
Guindy, Chennai – 600 032.
2.The Deputy Director / Enquiry Officer U/s.81,
Department of Industrial Co-operatives,
No.12, Alanthur Road, C.T.A.L. Complex,
Guindy, Chennai – 600 032.
3.The Assistant Director (IC) / Secretary / Surcharge Enquiry Officer,
Chennai, Autorickshaw Drivers Industrial Co-operative Society Limited,
No.258/849, Periyar E.V.R.High Road,
Kilpauk, Chennai – 600 010.
4.The Additional Director (Industrial Co-operative) / Managing Director,
The Tamil Nadu Industrial Co-operative Bank Limited,
No.36, Sougth Canal Bank Road,
Raja Annamalaipuram,
Mandavelipakkam,
Chennai – 600 028.
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W.P.(MD) Nos.7518 and 7824 of 2020
M.S.RAMESH,J.
TM
W.P.(MD) Nos.7518 and 7824 of 2020
15.06.2022
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