Madras High Court
S.Vijayalekshmi vs The Deputy Registrar Of Cooperative ... on 8 January, 2025
W.P.(MD) No.14963 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE K.KUMARESH BABU
W.P.(MD) No.14963 of 2017
and
WMP(MD) No.11787 of 2017
S.Vijayalekshmi .. Petitioner
Vs.
1.The Deputy Registrar of Cooperative Societies,
Thuckalay Circle,
Thuckalay,
Kanyakumari District.
2.Kandanvilai Primary Agricultural Cooperative
Credit Society Ltd.1827,
Kandanvilai Post,
Kanyakumari District.
Rep.by its President. ...Respondents
Prayer:Petition filed under Article 226 of the Constitution of India,
praying for issuance of Writ of Certiorari calling for the records relating
to the impugned proceedings of the 1st respondent in Tha.Va 1/2017
dated 29.06.2017 and quash the same as illegal insofar as the petitioner is
concerned.
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W.P.(MD) No.14963 of 2017
For Petitioner : Mr.M.Jerin Mathew
Advocate
For R1 & R2 : Mr.J.K.Jeyaseelan
Government Advocate
ORDER
The challenge in this writ petition is an order passed by the 1st
respondent under Section 87 of the Tamil Nadu Cooperative Societies
Act, 1983.
2. The learned counsel for the petitioner would submit that the
petitioner was employed with the 2nd respondent and had superannuated
in the year 2016. However, by the impugned proceedings dated
29.06.2017, the petitioner was mulled with the liability on the allegations
that the petitioner along with nine others had caused loss to the Society.
3. The learned counsel for the petitioner would further submit that
the notice of enquiry under Section 82 of the 'Tamil Nadu Cooperative
Societies Act', 1983 (hereinafter referred as 'Act') had been referred to the
impugned proceedings which had not been served upon the petitioner.
Therefore, the proceedings under Section 87 of the Act is under gross
violation of Principles of Natural Justice.
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4. The learned counsel for the petitioner further heavily relied
upon the Full Bench Judgment of this Court reported in S.Andiyannan
Vs. The Joint Registrar, Cooperative Societies, Madurai Region,
Madurai { [2015] (4) CTC} and contended that the proceedings
initiated against the petitioner after his retirement is non est in law.
5. The learned counsel for the petitioner had also placed reliance
on the judgment of a learned Single Judge made in WP(MD).No.13285
of 2021 dated 26.02.2024 to drive home his contention that the Full
Bench of this Court had held that once the employee had retired, no
proceedings could be initiated against one.
6. The learned counsel for the petitioner would further submit that
the proceedings impugned herein issued after superannuation of the
petitioner is bad in law and therefore, is liable to be set aside.
7. On the contrary, Mr.J.K.Jeyaseelan, learned Government
Advocate for the respondents would contend that the petitioner had
misconstrued the Full Bench judgment of this Court.
8. The learned Government Advocate would submit that the Full
Bench had answered two questions, the first question relates to
disciplinary proceedings and the second question relates to the surcharge
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proceedings.
9. The learned Government Advocate would further submit that the
Full Bench had only answered that when the disciplinary proceedings
have been initiated after the superannuation, the same was bad but on the
other hand the surcharge proceedings under Section 87 of the Act was
initiated, the Full Bench had held that the same is not penal in nature and
if it is established that the employee had caused loss to the society, then
the same could be recovered in the manner known to law from such
employee.
10. The learned Government Advocate further placed reliance
upon a judgment of the learned Single Judge in WP(MD).No.17308 of
2023 dated 03.11.2023 and contend that the learned Single Judge
following the Full Bench Judgment had held that the surcharge
proceedings can be proceeded with and not the disciplinary proceedings.
But on the facts of the said case held that the conditional order of
retirement was bad in law and had directed completion of both the
disciplinary proceedings and the surcharge proceedings within a time
frame.
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11. The learned Government Advocate further relied upon two
orders of the learned Single Judge made in WP(MD).No.13192 of 2014
dated 21.08.2017 and WP(MD).No.5882 of 2015 dated 09.08.2017, to
record his contention, the writ petition against the proceedings under
Section 87 of the Act, is not maintainable. Hence, he prays this Court to
dismiss the writ petition.
12. I have considered the rival submissions of the learned counsel
on either side.
13. It is an admitted case that the petitioner had superannuated
prior to the orders impugned herein. It is to be noted that the proceedings
under Section 87 of the Act were also initiated even before the petitioner
attained the age of superannuation.
14. The Full Bench of this Court after analysing the various issues,
it answered the questions that had been referred to it and for better
appreciation the same is extracted hereunder:-
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.
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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.
31. Answer to the second question referred to this Bench:
As contemplated under Section 87 of the Tamil Nadu
Cooperative Societies Act, 1983, the term 'surcharge' is not penal
in nature, hence if there is admission with regard to the loss
caused by the employee or the same is established by the
cooperative institution, based on the proceeding already initiated
for surcharge, the same could be recovered in the manner known
to law. However, the provision relating to surcharge under
Section 87 of the Act is not impliedly empowering the
disciplinary authority to continue any disciplinary proceeding
against an employee, who retired from service, in the absence of
any Service Rules or Bye-law. Hence, Section 87 of the said Act
cannot be construed as an enabling provision or impliedly
empowering provision to the employer to continue any
disciplinary proceeding after the retirement of any employee, in
the absence of any Service Rules.”
15. The answer to the first question was that if there was no
Service Rule or Bye-Law empowering the employer to continue the
departmental proceedings after the superannuation of the employee then
the employer had no authority to continue the departmental proceeding.
16.In answer to the second question, the Full Bench had held that
Section 87 proceedings is not penal in nature and if there is an admission
or a finding of fact that the employee has caused loss to the society, the
same could be recovered in the manner know to law and held that the
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pendency of the proceedings under Section 87 of the Act cannot
empower the disciplinary proceedings to proceed against that employee
after his superannuation. Hence, in my view, the Full Bench of this Court
had categorically held that surcharge proceedings can be proceeded even
after the retirement of the employee.
17. The interpretation that has been sought to be given by the
learned counsel for the petitioner in respect of the answer to the second
question is not sustainable. The answer to question number two would
have to be understood by also taking into account, the answer to the first
question and a conjoint reading of the same would indicate that employer
would not have any authority to proceed with the disciplinary
proceedings which is in penal nature if the bye-law of the Society does
not empower the employer to continue the disciplinary proceedings after
the date of superannuation.
18. Section 87 proceedings of the Act can be proceeded for
recovery of the loss caused by the employee but such proceedings will
also not entitle the employer to proceed on the disciplinary side after the
superannuation of the employee.
19.The judgment relied upon by the learned counsel for the
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petitioner which has been made by the learned single Judges of this
Court relates to the issue of the disciplinary proceeding and not
surcharge proceedings. Hence, the said judgment cannot be made
applicable to the facts of the case.
20. The learned single Judge judgment relied upon by the
respondent would also indicate that the writ petition against the
proceedings of Section 87 of the Act is not maintainable. The reason for
which it was held to be not maintainable was that there was an
efficacious alternate remedy under Section 87 proceedings of the Act.
21. In such view of the matter, I find no necessity to interfere with
the orders impugned in this writ petition.
22. In fine, the writ petition is dismissed. No costs. Connected writ
miscellaneous petition is closed.
08.01.2025
NCC : Yes/No
Index : Yes/No
Internet : Yes
nst
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To
1.The Deputy Registrar of Cooperative Societies,
Thuckalay Circle,
Thuckalay,
Kanyakumari District.
2.Kandanvilai Primary Agricultural Cooperative
Credit Society Ltd.1827,
Kandanvilai Post,
Kanyakumari District.
Rep.by its President.
K.KUMARESH BABU, J.
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nst
and
Dated: 08.01.2025
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