Madras High Court
X.Sahaya Thilakaraj vs The Joint Registrar Of Co-Operative ... on 29 October, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).No.10304 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 16.10.2024
ORDER PRONOUNCED ON : 29.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).No.10304 of 2024
and WMP(MD).Nos.9265 &9266 of 2024
X.Sahaya Thilakaraj ....Petitioner
Vs
1.The Joint Registrar of Co-operative Societies/
Common Cadre Authority
Office of the Joint Registrar of Co-operative Societies
Kanyakumari Region
Nagercoil
Kanyakumari District
2.The Deputy Registrar of Co-operative Societies
Office of the Deputy Registrar of Co-operative Societies
Nagercoil, Kanyakumari District
3.The Administrator
K.N.77, Aralvoimozhi Primary Agricultural
Co-operative Credit Society
Aralvoimozhi, Kanyakumari District ....Respondents
Prayer : This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus to call of the records relating to the
impugned charge memorandum vide Na.Ka.1248/2023/Tho.Ve.Sa dated
https://www.mhc.tn.gov.in/judis
1/14
W.P(MD).No.10304 of 2024
29.01.2024 and the consequential proceeding vide Na.Ka.
3319/2022/Tho.Ve.Sa.dated 31.01.2024 passed by the first respondent and
quash the same and consequently direct the respondents to disburse the
retirement benefit such Gratuity, Employees Provident Fund and Earned
Leave Salary etc., payable to the petitioner within the time frame.
For Petitioner : Mr.D.Shanmugaraja Sethupathi
For Respondents : Mr.S.Shanmugavel
Additional Government Pleader
ORDER
The present writ petition has been filed by the Secretary of the fourth
respondent Co-operative Credit Society challenging the charge memo dated
29.01.2024 and the consequential order dated 31.01.2024 wherein he was
relieved from duty but not permitted to retire.
2.According to the learned counsel appearing for the writ petitioner, he
was about to attain superannuation on 31.01.2024. Two days prior to that, the
impugned charge memo was issued on 29.01.2024 alleging that the petitioner
has spent the funds of the Society for purchasing computer and other
furniture without getting prior permission from the competent authority. It is
further alleged in the charge memo that the petitioner had constructed toilet
and spent money towards painting of the Society building.
3.According to the learned counsel for the petitioner, the services of
https://www.mhc.tn.gov.in/judis
the writ petitioner are governed by Tamil Nadu Primary Agricultural
Co-operative Credit Societies Common Cadre Service Rules-2019. There is
no provision either under the Common Cadre Service Rules or in the bye-
laws of the third respondent Society which enable the respondents herein to
continue the disciplinary proceedings after the date of superannuation. He
had further contended that the petitioner should have been permitted to retire
and the entire terminal benefits should have been disbursed.
4.The learned counsel for the petitioner had relied upon the Full Bench
decision of our High Court reported in 2015 (4) CTC 1 (S.Andiyannan Vs.
The Joint Registrar, Co-operative Societies, Madurai Region, Madurai and
another) to impress upon the Court that in the absence of the Service Rules
or bye-laws of the Society, the employer cannot continue the disciplinary
proceedings after retirement of the employee. Hence, he prayed for allowing
the writ petition.
5.Per contra, the learned Additional Government Pleader appearing for
the respondents herein had relied upon the circular issued by the Registrar of
Co-operative Societies in Circular No.27/2022/SA1 dated 01.11.2022
wherein a direction was given to all the Societies to incorporate bye-law No.
28(2). As per the said bye-laws, the Society was empowered to continue the
disciplinary proceedings even after the retirement. The said bye-laws
provided for placing the employee under suspension pending disciplinary
https://www.mhc.tn.gov.in/judis
proceedings. The bye-law further provided for non-payment of terminal
benefits until the disciplinary proceedings are finally concluded.
6.Relying upon the above said circular, the learned Government
Pleader had contended that since there is a special bye-laws which provides
for continuation of disciplinary proceedings after retirement, the charge
memo issued to the writ petitioner and the order retaining the petitioner in
service are legally sustainable.
7.Relying upon the counter, the learned Additional Government
Pleader had contended that the petitioner was working in the Aralvoimozhi
Co-operative Society at the time of his suspension. Due to serious financial
irregularities and misappropriation of funds, Section 81 enquiry was ordered
and a report was submitted on 20.06.2024. Another 81 enquiry was initiated
as against the petitioner for misconduct committed by the writ petitioner
while he was an in-charge Secretary in Vellamadam Primary Agricultural
Co-operative Credit Society. The report has been filed on 08.06.2024. Based
upon the enquiry report dated 14.08.2023 relating to Aralvoimozhi Primary
Agricultural Co-operative Credit Society Ltd., the impugned charge memo
has been issued on 29.01.2024. Another charge memo is being contemplated
based upon the enquiry report relating to Vellamadam Primary Agricultural
Co-operative Credit Society Ltd. Since the petitioner was about to retire, an
order was passed on 31.01.2024 relieving the petitioner without permitting
https://www.mhc.tn.gov.in/judis
him to retire from service. By-law No.28(2) of the Special Bye-law provided
for retention of employee in service till conclusion of the disciplinary
proceedings. The charge memo as well as the retention orders are legally
sustainable. He had further contended that the financial irregularities to a tune
of more than Rs.2.77/- crores has been committed by the writ petitioner.
Unless he is retained in service, it would be difficult for the Society to
recover the said amount from him. Hence, he prayed for sustaining the orders
impugned in the writ petition.
8.I have considered the submissions made on either side and perused
the material records.
9.It is settled position of law that the disciplinary proceedings initiated
while in service could be continued after retirement only if the statutory
service rules provide for the same. In the case of an employee of the
Co-operative Society, if the bye-laws provided for continuation of the
disciplinary proceedings, the same could be continued.
10.The Honourable Full Bench of our High Court in a judgement
reported in 2015- 3-LW-513 (S.Andiyannan Vs. The Joint Registrar, Co-
operative Societies, Madurai Region, Madurai and another) in paragraph
No.30 has held as follows:
https://www.mhc.tn.gov.in/judis
“30. Answer to the first question referred to this Bench:
Under the Tamil Nadu Cooperative Societies Act, 1983, once an
employee retired from service, there could be no authority vested with
the employer for continuing any disciplinary proceeding, in the
absence of relevant service Rules permitting the employer to continue
the disciplinary proceeding. In other words, if there is no service
Rules or bye-law of the society empowering the employer to continue
the departmental proceeding, the employer, would have no authority
to continue the departmental proceeding after the retirement of the
employee.”
11.In view of the Full Bench Judgment of our High Court, it is clear
that the disciplinary proceedings could be continued, even after the
retirement, only when provision are found either in the Co-operative
Societies Act or in the bye-laws of the third respondent Co-operative Society.
12.A perusal of the circular issued by the Registrar of Co-operative
Society in Circular No.27/2022/SA1 dated 01.11.2022 reveals that a proposal
has been forwarded to the Government to insert new Rule namely 149-A. In
Tamil Nadu Co-operative Societies Rules-1988 providing for continuing the
disciplinary proceedings taken by the Co-operative Society against the
employee, even after he reaches the age of superannuation. However, so far
the said proposal sent by the Registrar of Co-operative Society has not been
accepted by the Government or any amendment has been brought within the
Co-operative Societies Rules for continuation of the disciplinary proceedings
https://www.mhc.tn.gov.in/judis
after the retirement of an employee. Hence, it is clear that the Tamil Nadu Co-
operative Societies Rules-1988, as on today do not provide for continuation
of disciplinary proceedings as against an employee after his retirement.
13.The learned Government Pleader appearing for the respondents
herein had relied upon the above said circular and vehemently contended that
when a provision for continuation of disciplinary proceedings after retirement
has been inserted by way of bye-law No.28(2) in the special bye-laws of the
third respondent society, the same is applicable to the petitioner also.
Therefore, the proceedings initiated as against the writ petitioner should be
sustained.
14.It is the contention of the learned counsel for the writ petitioner that
once Tamil Nadu Primary Agricultural Co-operative Credit Society Common
Cadre Service Rules-2019 have come into force, the petitioner is governed
only by the said Service Rules and not by the bye-laws of the same Society. It
is the further contention of the writ petitioner that as on today, the Secretary
and the Assistant Secretary of the Co-operative Society alone are governed
by a Common Cadre Service Rules. In such circumstances, the bye-laws of
the third respondent Society are not applicable and hence, the same cannot be
relied upon.
15.A perusal of the counter filed by the Joint Registrar of Co-operative
Society speaks about the circular of the Co-operative Sub Registrar for
https://www.mhc.tn.gov.in/judis
incorporation of By-law No.28(2) of special bye-laws into the bye-laws of the
Co-operative Society. However, there is no specific averments in the counter
affidavit whether the third respondent Society has adopted the Special
Byelaws or it is yet to be adopted. Therefore, it is not clear whether the
special bye-laws have been incorporated in the bye-laws of the third
respondent Society or not.
16.It is the specific case of the writ petitioner that he is not governed
by the bye-laws, but he is governed only by a Common Cadre Service Rules.
Therefore, according to him, even assuming that such a provision is available
in the bye-laws, the bye-laws are applicable to him and the same cannot be
referred to.
17.As far as the Common Cadre employee is concerned, whether the
Common Cadre Service Rules or the bye-laws of the Society would be
applicable is no longer res integra in view of the Division Bench judgment in
WA.Nos.2220 & 2466 of 2021 dated 28.09.2021, in which paragraph No.7 is
extracted as follows:
“7. Unless otherwise the bye-law provides, the employee
cannot be proceeded against after retirement. This will be
applicable to all categories provided they do not come under the
purview of G.O. dated 12.02.2019 creating common cadre. . Once
he comes into the common cadre, for the incident that took place
prior to 12.02.2019, the authority competent to deal with the
https://www.mhc.tn.gov.in/judis
employees in the common cadre is entitled to proceed with the
enquiry, but it shall be done only in terms of the clauses mentioned
in the G.O. The G.O. has no where stated that the employee could be
continued to be kept under suspension even after attaining the age
of superannuation or there is no saving clause in the G.O. that if
there are any conflict between the bye-law and the G.O, the clauses
that are not going to be affected by the G.O. would continue to be in
operation. In the absence of the enabling provision to continue
departmental action of those employees falling under the common
cadre, even though the incident would have taken place much prior
to G.O. dated 12.02.2019, in the absence of specific clause in the
G.O. to proceed departmentally after retirement, the appellant
cannot proceed with the departmental action against the writ
petitioner. “
18.The Hon'ble Division Bench in the above said judgment has
categorically held that there is no specific saving clause in the common cadre
service rules that if there are any conflict between the bye-laws and the
common cadre service rules, the bye-laws which are inconsistent with the
common service rules would continue to be in operation. The Hon'ble
Division Bench had further held that there is no specific clause in the
common cadre service rules to proceed with the departmental enquiry after
retirement. Therefore, it is clear, that even though the charge memo was
issued prior to the date of retirement, yet the proceedings based upon the
above said charge memo cannot be continued, in view of the fact that the
https://www.mhc.tn.gov.in/judis
employer employee relationship has been severed, in view of the fact that
there is no provision to retain the petitioner in service for the purposes of
continuing the disciplinary proceedings.
19.A perusal of the impugned order dated 31.01.2024 reveals that the
petitioner has been relieved from employment with a rider that his request for
retirement would be considered only after receipt of final reports in the
enquiry pending as against the writ petitioner. Therefore, it is clear that the
petitioner has not been permitted to retire and he has been retained in service
for the purpose of continuing the disciplinary proceedings.
20.In view of the above said deliberations, it is clear that there is no
provision either in the Co-operative Societies Act or in the Tamil Nadu
Primary Agricultural Co-operative Credit Societies Common Cadre Service
Rules-2019 for continuing the disciplinary proceedings as against the writ
petitioner after his retirement. The bye-laws or the special bye-laws of the
concerned Society are not applicable to the writ petitioner since he has been
absorbed into the Common Cadre as per Rule 3(3) of the Tamil Nadu
Primary Agricultural Co-operative Credit Societies Common Cadre Service
Rules-2019
21. Apart from challenging the charge memo and the retention order,
the petitioner has sought for a direction to disburse the retirement benefits
such as Gratuity, Employees' Provident Fund, Earned Leave etc., payable to
https://www.mhc.tn.gov.in/judis
him. Since serious allegations of misappropriation and financial irregularities
have been made as against the writ petitioner and the petitioner has already
been found to be involved in those misconduct under two reports filed under
Section 81 of Tamil Nadu Co-operative Societies Act, this Court is of the
considered opinion that the Provident Fund and Earned Leave salary alone
can be disbursed to the writ petitioner, retaining the other terminal benefits.
The other terminal benefits could be disbursed only depending upon the
conclusion of the surcharge proceedings.
22.In view of the above said deliberations, this Court is inclined to pass
the following orders.
(a)The impugned charge memo dated 29.01.2024 and the impugned
order dated 31.01.2024 wherein the petitioner was not permitted to retire are
hereby set aside.
(b)The petitioner is deemed to have retired from service with effect
from 31.01.2024 onwards. In view of his retirement, no disciplinary
proceedings could be continued as against him.
(c)The Employees' Provident Fund and Earned Leave Salary of the writ
petitioner shall be released within a period of 12 weeks from the date of
receipt of a copy of this order.
https://www.mhc.tn.gov.in/judis
(d)The other terminal benefits shall be retained by the respondents and
the same shall be disbursed depending upon the outcome of the surcharge
proceedings.
23.The Writ Petition is partly allowed to the extent as stated above. No
costs. Consequently, connected miscellaneous petitions are closed.
29.10.2024.
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
msa
https://www.mhc.tn.gov.in/judis
To
1.The Joint Registrar of Co-operative Societies/
Common Cadre Authority
Office of the Joint Registrar of Co-operative Societies
Kanyakumari Region
Nagercoil
Kanyakumari District
2.The Deputy Registrar of Co-operative Societies
Office of the Deputy Registrar of Co-operative Societies
Nagercoil, Kanyakumari District
3.The Administrator
K.N.77, Aralvoimozhi Primary Agricultural
Co-operative Credit Society
Aralvoimozhi, Kanyakumari District
https://www.mhc.tn.gov.in/judis
R.VIJAYAKUMAR, J.
msa
Pre-delivery order made in
and WMP(MD).Nos.9265 &9266
of 2024
29.10.2024
https://www.mhc.tn.gov.in/judis
