M. Sivakumar & Ors. v. The Joint Registrar of Co-op. Societies /Revisional Authority Villupuram Region, Villupuram

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 08..02..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. Nos. 14928, 14929 and 14936 of 1999M. Sivakumar .. Petitioner in W.P. No. 14928 of 1999P. Paramasivam .. Petitioner in W.P. No. 14929 of 1999K. Murugaiya .. Petitioner in W.P. No. 14936 of 1999Vs.The Joint Registrar of Co-op. Societies /Revisional Authority Villupuram Region, Villupuram. .. Respondents in all W.Ps. Petitions filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorari calling for the recordsrelating to the proceedings Na. Ka. 2063/97 SP dated 31.5.1999 ofthe respondent passed under Section 153 of the Tamil Nadu Co-op.Societies Act, 1983 and quash the same. For Petitioners : Mr. S. VenkataramanFor Respondent : Mrs. Bhavani Subbaroyan, AGPCOMMON ORDERHeard the arguments of Mr. S. Venkataraman, learned counselappearing for the petitioner and Mrs. Bhavani Subbaroyan, learnedAdditional Government Pleader representing the respondent andperused the records. 2.The petitioner in W.P. No. 14928 and 14936 were workingin the cadre of Co-operative Sub-Registrar. At the particularpoint of time, they were working as Special Officers of theMottampatti Lamb Society. During their tenure as the Specialofficer in the said Society, one Paramasivam (petitioner in W.P.No. 14929 of 1999) was working as Secretary. Due to certainirregularities committed by the said Paramasivam, Secretary,disciplinary proceedings were initiated against the two SpecialOfficers. At the end of the disciplinary action, it was foundthat the said Paramasivam was not guilty of the charges levelledagainst him in respect of causing loss to the Society but becauseof his lack of supervision and considering his service and also https://hcservices.ecourts.gov.in/hcservices/ the fact that he was kept under suspension for a period of threeyears, a punishment of stoppage of increment for a period twoyears with cumulative effect was passed against him by an orderdated 10.12.1994. 3.Subsequent to the order passed against the saidParamasivam, Mr. Sivakumar, petitioner in W.P. No. 14928 of 1999was transferred and in that place, one Murugaiah, petitioner inW.P. No. 14936 of 1999, became the Special Officer. Since theperiod of suspension of the Secretary Paramasivam was treated asduty, he was made eligible for payment for which, the saidMurugaiah made the payment. 4.In the meanwhile, for the financial irregularities foundin the Society, the Circle Deputy Registrar passed a surchargeproceedings under Section 87 of the Tamil Nadu Co-operativeSocieties Act, 1983 [for short, 'TNCS Act'] were initiated againstthe said Paramasivam. 5.The first respondent initiated suo motu proceedingsagainst the improper conclusion of the proceedings initiatedagainst Paramasivam, under Section 153 of the TNCS Act and noticewas issued to all the three petitioners. At the end of the saidproceedings, the impugned order dated 31.5.1999 came to be passedby the first respondent and he set aside the order regulating theperiod of suspension in favour of the said Paramasivam to betreated as one spent on leave if he was eligible for such leaveand thereafter, recovery of the amounts paid by way of salary tothe said Paramasivam. 6.It is against this order, the three writ petitions havebeen filed. The same counsel appeared for the two SpecialOfficers as well as for Mr. Paramasivam. Such a conduct may notbe proper since both the disciplinary authority as well as thecharge - sheeted persons to be represented by the same counsel.Any how, it is a matter which the counsel will have to ponderover. 7.Though the writ petitions were admitted and interim staywas granted for a period of two weeks, the stay applications weredismissed by a common order dated 02.9.2003. Therefore, it ispresumed that recoveries must have been ordered against the threepetitioners as directed by the first respondent. Under theimpugned order, it is stated that if they fail to pay the saidamount, proceedings under Section 87 of the TNCS Act will beinitiated against them for recovery of the amount and thedisciplinary action was recommended against the two SpecialOfficers.8.Mr. S. Venkataraman, learned counsel appearing for thepetitioners submitted that the two writ petitioners, who are https://hcservices.ecourts.gov.in/hcservices/ Special officers, were in the nature of disciplinary authoritiesand in exercise of their function as the Special Officer, they areentitled to pass orders on the disciplinary proceedings initiatedagainst the said Paramasivam and in the exercise of the saidstatutory power, no other authority can take action against them.He also submitted that Section 153 of the TNCS Act is not intendedfor the said purpose and, therefore, the writ petitions are liableto be allowed. The learned counsel also pointed out that evenassuming, without admitting, that Section 153 of the TNCS Act isavailable for a suo motu revision, yet, the two Special Officerscannot be made liable to pay the said amount. Further, he alsostated that the revisional authority found that the finding of thedisciplinary authority was not illegal and having affirmed thepenalty imposed on the said Paramasivam, the period of suspensionalone was the only issue with which the revisional authority wasconcerned. Even though the said Paramasivam had filed a writpetition earlier, the said writ petition was withdrawn by him andin the absence of any bye-law stipulating as to how the period ofabsence should be regulated, no fault can be found against the twoSpecial Officers.9.The learned counsel appearing for the respondents pointedout that while Mr. M. Sivakumar had passed illegally the orderregulating the period of suspension and declared that the saidParamasivam is entitled for full wages, Mr. K.Murugaiah, who wasthe subsequent Special Officer, had implanted that order. Butthe action of Mr. Sivakumar cannot be condoned and it is not as ifMr. Paramasivam was found innocent by the revisional authority.Mr. Paramasivam was kept under suspension and he was paidsubsistence allowance and as against the surcharge proceedingsinitiated against him, recovery orders were made and he had alsopaid the said amount and, therefore, in the absence of challengeto the surcharge proceedings, the said Paramasivam's conductcannot be said to be unblemished. 10.After considering the rival submissions, this Court is ofthe view that the contention that Section 153 of the TNCS Act isnot available, cannot be accepted. The very reading of theSection shows that the revisional authority can take suo motucognizance of any order passed by his subordinates and examine andsatisfy himself about the correctness, legality or propriety ofthe decisions. Having taken cognizance and issued notices to thepetitioners, the question of lack of jurisdiction does not arise.11.With reference to the second contention that whateverdone by the two Special Officers was in their discharge of theirduties and, therefore, no action can be taken also cannot beaccepted. To some extent, the authorities are entitled to beprotected for their independent decisions. If the order suffersfrom any irregularities or illegalities or lack of bonafides,certainly, the decision making authorities are liable to be hauled https://hcservices.ecourts.gov.in/hcservices/ up for their illegality in the decision making process.Therefore, the only question that can be found in favour of thetwo Special Officers is that the amounts paid by way of backwagesover and above the subsistence allowance in favour of the saidParamasivam, if it is found out to be improper, the same will haveto be recovered from the salary of the said Paramasivam and notfrom the two Special Officers since it was not shown that theorder of payment was made due to any collusion or fraud. Sincethe revisional authority merely recorded a finding that it was animproper decision, the direction that the petitioners in W.P. Nos.14928 and 14936 of 1999 should also make good the payment, shouldbe set aside. 12.But with reference to the direction that disciplinaryaction should be taken against them, this Court is not interferingwith the said direction because as against the said charges, thetwo petitioners can defend the same in an enquiry which may beheld for the said purpose. This is on the footing that thereis no immunity for a disciplinary authority if he passes anillegal order. 13.With reference to W.P. No. 14929 of 1999, since therevisional authority had correctly rendered a finding that thepetitioner Paramasivam cannot be given wages for the entire periodof suspension as his conduct was not unblemished and that he wasalso paid subsistence allowance during the period of suspension,it is needless to state that the authority competent to suspend anemployee pending the departmental enquiry, is also competent toregulate the period of suspension and unless the record of thecharge-sheeted officer is unblemished, the question of payment offull wages for the interregnum period will not arise. Therevisional authority had found that the petitioner Paramasivamhad been surcharged and for his conduct in lack of supervisionabout the loss caused to the Society, he cannot have the benefitof full wages. The finding of the revisional authority that theperiod will be treated as on duty and adjusted against the leaveto which the petitioner Paramasivam is eligible, cannot be said tobe perverse or illegal. 14.In the light of the above, W.P. Nos. 14928 and 14936 of1999 are partly allowed and W.P. No. 14929 of 1999 is dismissed.However, there will be order order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrargri https://hcservices.ecourts.gov.in/hcservices/ ToThe Joint Registrar of Co-op. Societies /(Revisional Authority)Villupuram Region, Villupuram. +1cc to M/s.S.Venkatraman, Advocate Sr 6610AVM (CO)km/14.2.W.P. Nos. 14928, 14929 and 14936 of 1999