Madras High Court
S.Elumalai vs The Joint Registrar Of ... on 11 July, 2023
W.P.No.6657 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.07.2023
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P.No.6657 of 2023
and W.M.P.No.6721 of 2023
S.Elumalai ... Petitioner
Versus
1.The Joint Registrar of Co-operative
Societies,
Villupuram Region,
Villupuram District.
2.The Deputy Registrar of Co-operative
Societies,
Thirukkovilur Circle,
Villupuram District.
3.The Management of E-1503,
Arakandanallur Primary Agricultural
Co-operative Credit Society,
Rep. by its President/Secretary,
Arakandanallur,
Villupuram District. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus, to call for the records
of the order passed by the 3rd respondent dated 10.02.2023 and quash the same
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W.P.No.6657 of 2023
and consequently, direct the respondents to pay the retirement benefits to the
petitioner namely Employees' Provident Fund, Gratuity and Leave Encashment
with statutory interest 12% from the date of retirement i.e., 31.07.2022 till the
payment.
For Petitioner : Mr.L.P.Shanmugasundaram
For Respondents
For R1 & R2 : Mr.S.Arumugham
Government Advocate
For R3 : Mr.C.Jayaprakash
Government Advocate
ORDER
This writ petition has been filed challenging the order passed by the 3 rd
respondent dated 10.02.2023 and consequently to direct the respondents to pay
the retirement benefits to the petitioner namely Employees' Provident Fund,
Gratuity and Leave Encashment with statutory interest 12% from the date of
retirement i.e., 31.07.2022 till the payment.
2. It is the case of the writ petitioner that he was appointed as Office
Assistant in the 3rd respondent Society on 01.10.1985 and thereafter, he was
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W.P.No.6657 of 2023
promoted as Senior Clerk on 01.08.2019. After completing 37 years of service
in the 3rd respondent Society, he attained the age of superannuation on
31.07.2022. However, his retirement benefits namely Employees Provident
Fund, Gratuity and Leave Encashment and other statutory retirement benefits
have not been paid. Hence, the petitioner filed a writ petition before this Court in
W.P.No.31387 of 2022 for direction to the respondents to pay the retirement
benefits with 10% statutory interest from the date of retirement till the payment.
This Court, by an order dated 24.11.2022, directed the respondents to consider
the representation of the petitioner and pass final orders in terms of judgment of
the Division Bench of this Court dated 08.02.2019 passed in W.A.No.1466 of
2015. However, now the impugned order came to be passed on 22.02.2023,
holding that during the audit for the year 2018-2019, certain irregularities have
been found, which resulted in loss to the Society to the tune of
Rs.10,05,110.75/-. Therefore, the request of the petitioner was rejected.
Challenging the same, the present writ petition has been filed.
3. It is the main contention of the writ petitioner that admittedly no charge
whatsoever was framed against the petitioner and no enquiry either under
Sections 81 or 90 of the Tamil Nadu Co-operative Societies Act, as
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W.P.No.6657 of 2023
contemplated, has commenced. Therefore, the respondents cannot withhold the
terminal benefits particularly Gratuity, Provident Fund and Leave Encashment,
which have already been ordered to be settled by the Division Bench of this
Court in W.A.No.1466 of 2015.
4. The 3rd respondent filed counter affidavit wherein it is stated that the
writ petition filed by the petitioner is not maintainable in terms of Full Bench
Judgment of this Court reported in 2006(4) CTC 689 and writ appeal alone is
maintainable under Section 152 of the Tamil Nadu Co-operative Societies Act.
Paragraph No.7 of the counter affidavit as follows:
" 7. I humbly submit that in the final audit
conducted in the Arakandanallur Primary Co-
operative Credit Society, during the year 2018-2019,
serious defects were raised by the audit team for
causing deficit of stocks of empty gunny bags to the
tune of Rs.57,712/-, plastic gunny bags to the tune of
Rs.411/-, essential materials to the tune of
Rs.3,977.25 in the fir shops under the control of the
society in the year 2018-2019 and further caused
deficit of stocks of empty gunny bags to the tune of
Rs.2,45,440/-, plastic bags to the tune of
Rs.4,966.50/- in the head office thereby caused a loss
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W.P.No.6657 of 2023
to the society to the tune of Rs.3,12,536.75/- and
further false accounts were written in the diary as
such an inverter battery for Rs.58,830/- was
purchased without purchasing it thereby causing loss
and further lesser interest was collected in the jewel
loan auctioned thereby causing a loss to the tune of
Rs.6,33,744/- and it has been informed in the audit
conducted during the year 2018-2019 that a total
loss was caused to the society to the tune of
Rs.10,05,110.75/-."
Hence, it is their contention that only on the basis of the alleged
misappropriation, the said amount has been withheld.
5. I have given my concious consideration that admittedly, the petitioner
was not permitted to retire from service and his terminal benefits have been
withheld.
6. Though certain discrepancies were found in the audit for the year 2018-
2019, it is relevant to note that based on the audit report, no surcharge
proceedings were initiated under Section 87 of the Tamil Nadu Co-operative
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W.P.No.6657 of 2023
Societies Act. Now, the petitioner though was not permitted to retire, it appears
that no departmental proceedings were also initiated against him however, he
was relieved from service on 31.07.2022. It is relevant to note that even
assuming that any surcharge proceedings culminates as against the petitioner
which is enforceable order. Whereas as per Sections 78 and 79 of the Tamil
Nadu Co-operative Societies Act, there is clear bar for attaching the Provident
Fund as well as Gratuity. Further, the Division Bench of this Court in
W.A.No.1466 of 2015, after perusing various statutory proceedings including
the Payment of Gratuity Act, 1972, the Employees' Provident Funds and
Miscellaneous Provisions Act, 1952 and Sections 78 and 79 of the Tamil Nadu
Co-operative Societies Act, 1983, held that the terminal benefits cannot be
withheld in the absence of any statutory provision enabling the same and
directed the respondents to pay the amount.
7. It is the case of the petitioner that there is totally a sum of
Rs.16,59,831/- payable to the petitioner though he was not permitted to retire
from service. In such view of the matter, the respondents are directed to release
all the retirement benefits namely Provident Fund, Gratuity and Leave
Encashment to the petitioner, within a period of two months from the date of
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W.P.No.6657 of 2023
receipt of a copy of this order and liberty is hereby granted to the respondents to
proceed against the petitioner in the event of any surcharge proceedings reached
its logical conclusion for recovery of any alleged amount as per law. However,
the respondents are directed to settle the retirement benefits as indicated above,
with statutory interest at the rate of 10% per annum, within a period of two
months from the date of receipt of a copy of this order and in the event of failure
to settle the amount, the amount shall carry 12% interest till the amount is
settled.
8. With the above direction, the writ petition stands disposed of. No costs.
Consequently, connected miscellaneous petition is closed.
11.07.2023
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Index : Yes/No
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W.P.No.6657 of 2023
N. SATHISH KUMAR, J.
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W.P.No.6657 of 2023
11.07.2023
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