Madras High Court
C.Udayakumar vs The Deputy Registrar Of ... on 31 January, 2023
W.A.No.2461 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.01.2023
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
W.A.No.2461 of 2018
and CMP.No.19863 of 2018
C.Udayakumar ...appellant
Vs.
1. The Deputy Registrar of Co-operative Societies,
Hosur Circle, Hosur,
Krishnagiri District.
2. K.K.127, Hosur Primary Agricultural
Co-operative Credit Society Ltd.,
Rep. by its President,
Hosur, Krishnagiri District.
3. M.Nagaraj
President,
K.K.127, Hosur Primary Agricultural
Co-operative Credit Society Ltd.,
Hosur, Krishnagiri District. ...respondents
Writ Appeal filed under Clause 15 of the Letters Patent against the
order dated 16.04.2018 in WP.No.6735 of 2018 passed by the Single Judge
of this Court.
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W.A.No.2461 of 2018
For appellant : Mr.Balan Haridas
For respondents
for R1 : Mr.G.Nanmaran, Spl.G.P.
for R2 : Ms.T.Girija
for R3 : Ms.M.Sudha
JUDGMENT
(The Judgment of the Court was delivered by R.SUBRAMANIAN, J)
Challenge in this appeal is to the order of the Writ Court, dismissing
the Writ Petition on the ground of availability of alternative remedy.
2. The appellant, who was working as a Secretary with the
Co-operative Society, was charge sheeted for several delinquencies. The
Enquiry Officer after conducting enquiry found that the charges against the
appellant have not been proved. The Disciplinary Authority, however, chose
to differ and issued a show cause notice on 19.06.2017 seeking explanation
from the appellant as to why maximum punishment should not be imposed
on him. This was challenged by the appellant in WP.No.32381 of 2017,
which came to be disposed of on 13.12.2017 directing the Disciplinary
Authority to issue a fresh show cause notice and decide the matter afresh
after giving an opportunity to the appellant. Pursuant to the said decision, a
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W.A.No.2461 of 2018
fresh show cause notice was issued on 25.01.2018, to which, the appellant
sent a reply seeking documents. The Disciplinary Authority however
imposed the punishment of dismissal from service. The said order of
dismissal was challenged by way of a Writ Petition. The Writ Court found
that the appellant has an alternative remedy under Section 153 of the Tamil
Nadu Co-operative Societies Act and hence, refused to exercise its
jurisdiction under Article 226 of the Constitution of India. Hence, this
appeal.
3. Mr.Balan Haridas, learned counsel appearing for the appellant
would submit that the show cause notice dated 25.01.2018 is not in
compliance with the direction of this Court in WP.No.32381 of 2017.
Relying upon certain portions of the said notice, the learned counsel would
submit that a decision has been taken to differ and thereafter, an opportunity
is sought to be provided. This according to the learned counsel is not in
consonance with the judgments of the Hon'ble Supreme Court.
4. Contending contra, Ms.T.Girija, learned counsel appearing for the
second respondent would submit that the objects sought to be achieved by
providing an opportunity to the delinquent employee in the event the
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W.A.No.2461 of 2018
Disciplinary Authority seeks to differ from the conclusion of the enquiry
officer has been achieved by issuance of the notice dated 25.01.2018 and
hence, the direction of the Writ Court in WP.No.32821 of 2017 has been
complied with in its letter and spirit. Pointing out the language used in the
notice dated 25.01.2018, learned counsel would submit that the appellant
has been asked to show cause as to why the Disciplinary Authority should
not differ from the conclusions of the enquiry officer. The fact that certain
language that has been employed which could lead to an inference a
decision has already been taken cannot by itself lead to the conclusion that
the Disciplinary Authority had already decided to differ from the Enquiry
Officer.
5. Mr.Balan Haridas, learned counsel appearing for the appellant
would also contend that the documents have not been furnished to him. The
exercise of extraordinary Writ jurisdiction under Article 226 is subject to
certain self imposed restrictions and one of them is availability of
alternative remedy. The Writ Court has dismissed the Writ Petition on the
ground of alternative remedy. Unless it is shown that there is a violation of
fundamental right or that there is an alternative remedy, which is only
superficial and it is not an effective alternative remedy, we cannot interfere
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with the conclusions of the Writ Court. The argument on the question
whether the documents were furnished or not is a factual issue, which can
be better appreciated by the Revisional Authority, who can go into facts.
Sitting under Article 226, the Writ Court does not possess the advantages
which the Revisional Authority would possess in deciding the questions of
fact. We therefore do not think we should go into those questions at this
stage. Since there is substantial compliance of the requirements of law with
reference to the provision of opportunity to the delinquent employee before
a decision to differ from the conclusions of the Enquiry Officer, we do not
think we could fault the Writ Court for dismissing the Writ Petition on the
ground of maintainability. We therefore affirm the decision of the Writ
Court. The Writ Appeal fails and it is accordingly dismissed.
6. However, since the Writ Petition was dismissed on the ground of
maintainability and the Writ Appeal was entertained, the appellant will have
the right to move the Revisional Authority under Section 153 of the
Co-operative Societies Act. The time consumed before the the Writ Court as
well as during the pendency of the Writ Appeal will stand excluded in
computing the period of limitation if any for filing an application under
Section 153 of the Act. It is open to the appellant to raise all grounds before
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the Revisional Authority. Any observation made in this order should not be
taken as a final conclusion. The Revisional Authority will at liberty to
decide all questions afresh on the basis of the material that is placed before
it. No costs. Consequently, connected miscellaneous petition is closed.
(R.S.M.J.,) (S.S.K.J.,)
31.01.2023
Index : No
Speaking order: Yes
pvs
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W.A.No.2461 of 2018
To
1. The Deputy Registrar of Co-operative Societies,
Hosur Circle, Hosur,
Krishnagiri District.
2. The President,
K.K.127, Hosur Primary Agricultural
Co-operative Credit Society Ltd.,
Hosur, Krishnagiri District.
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W.A.No.2461 of 2018
R.SUBRAMANIAN, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
pvs
W.A.No.2461 of 2018
31.01.2023
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