Madras High Court
R.Chinnadurai vs The Joint Registrar Of ... on 7 February, 2023
W.A.No.2622 of 2018
7THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.02.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MRS.K.GOVINDARAJAN THILAKAVADI
W.A.No.2622 of 2018
R.Chinnadurai ...Appellant
Vs.
1.The Joint Registrar of Co-operative Societies,
Cuddalore Region, Cuddalore,
Cuddalore District.
2.The Deputy Registrar of Co-operative Societies,
Cuddalore Circle, Cuddalore,
Cuddalore District.
3.The President,
Nadukuppam Primary Agricultural
Co-operative Credit Society,
Nadukuppam Village & Post,
Panruti Taluk, Cuddalore District. ...Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent against the
order dated 09.02.2018 in W.P.No.13 of 2018.
For Appellant : Mr.V.S.Jagadeesan
For Respondents : Mr.G.Nanmaran
Special Government Pleader
1/6
https://www.mhc.tn.gov.in/judis
W.A.No.2622 of 2018
JUDGMENT
(Judgment of the Court was made by R.SUBRAMANIAN, J.)
Challenge in this intra-court appeal is to the order of the Writ
Court, dismissing the Writ Petition on the ground that the appellant has been
convicted by the criminal Court.
2.The appellant, who was working as a Secretary in the 3rd
respondent Co-operative Society was found to have misappropriated a sum
of Rs.14,703/-, for which, criminal proceedings in C.C.Nos.323 & 324 of
1992 were initiated and was convicted by the Judicial Magistrate,
Cuddalore. However, on appeal, the Appellate Court namely, the District
and Sessions Judge, Cuddalore, modified the sentence with a direction to
the appellant to repay the sum of Rs.14,703/- along with a sum of Rs.298/-
on or before 05.01.2012.
3.It is not in dispute that the appellant had paid back the money as
directed by the Appellate Court. Despite such payment, the retiral benefits
of the appellant were not disbursed by the Society. Hence, the appellant
https://www.mhc.tn.gov.in/judis
W.A.No.2622 of 2018
approached this Court in W.P.No.13 of 2018, seeking a mandamus directing
the respondents to disburse the petitioner's terminal benefits, gratuity,
provident fund and earned leave salary under Sections 78 & 79 of the Tamil
Nadu Co-operative Societies Act, 1983. The Writ Court dismissed his Writ
Petition on the ground that the appellant having been found guilty of
misappropriation is not entitled to the relief.
4.We have heard Mr.V.S.Jagadeesan, learned counsel appearing
for the appellant and Mr.G.Nanmaran, learned Special Government Pleader
appearing for the respondents.
5.We are unable to sustain the order of the Writ Court. The
Criminal proceedings related to the findings of misappropriation. Even if
the conviction has been retained by the Appellate Court, the Society must
have taken proceedings under Section 87 for recovery of the amounts due it.
In the absence of surcharge proceedings under Section 87, the Society
cannot retain the money that belongs to the employee.
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W.A.No.2622 of 2018
6.It is now pointed out that the total amount found to have
misappropriated is not Rs.14,703/- but, it is more than Rs.2,00,000/- and it
is also stated that there are some audit objections. There is no proceeding
initiated under Section 87 of the Co-operative Societies Act. Proceedings of
recovery must have been initiated within seven years. As of today, the right
of the Society to initiate surchage proceedings is also barred by limitation.
7.This Court and the Hon'ble Supreme Court repeatedly held that
the retiral benefits is the property of the employee and it cannot be retained
by the employer without any specific reasons. The Society has not taken
any proceedings under Section 87 for recovery. It is also seen that the loss
caused to the Society that is, Rs.14,703/- has been repaid by the appellant.
Therefore, the dismissal of the Writ Petition cannot be sustained.
8.Once it is conceded that the retiral benefits is the property of the
employee, the employer is bound to disburse the same even in cases where
the employee is dismissed from service. We are, therefore, unable to
sustain the order of the Writ Court. This Writ Appeal is therefore, allowed
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W.A.No.2622 of 2018
and the Writ Petition stands allowed. There will be a mandamus, directing
the 3rd respondent / Society to disburse the retiral benefits, including other
benefits to the appellant within a period of three months from the date of
receipt of a copy of this order. No costs.
(R.S.M.,J.) (K.G.T.,J.)
07.02.2023
kkn
Internet:Yes/No
Index:Yes/No
Speaking/Non-speaking order
To:-
1.The Joint Registrar of Co-operative Societies,
Cuddalore Region, Cuddalore,
Cuddalore District.
2.The Deputy Registrar of Co-operative Societies,
Cuddalore Circle, Cuddalore,
Cuddalore District.
3.The President,
Nadukuppam Primary Agricultural
Co-operative Credit Society,
Nadukuppam Village & Post,
Panruti Taluk, Cuddalore District.
https://www.mhc.tn.gov.in/judis
W.A.No.2622 of 2018
R.SUBRAMANIAN, J.
and
K.GOVINDARAJAN THILAKAVADI, J.
KKN
W.A.No.2622 of 2018
07.02.2023
https://www.mhc.tn.gov.in/judis
