S.Antony Jayaraj v. The Registrar of Co-operative Societies

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 13.02.2012CORAM:THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.9801 of 2007S.Antony Jayaraj...Petitionervs.

The Registrar of Co-operative Societies, Tamil Nadu Co-operative Societies, Kilpauk, Chennai - 600 010.

The Joint Registrar of Co-operative Societies, Coimbatore Region, Coimbatore District....RespondentsThis Writ Petition has been preferred under Article 226 of Indian Constitution praying for issue of a Writ ofcertiorarified mandamus, calling for the records relating to the proceedings made in RC.No.8892/2006/A.1(1) dated 29.12.2006and order made in RC.No.8892/2006/A.1(2) dated 29.12.2006 passed by the second respondent and quash the same and consequentiallydirect the respondents to pay all the retirement benefits to the petitioner. For Petitioners: Mr.G.EthirajuluFor Respondents: Mr.E.M.S.Natarajan,G.A.(Co-op)

O R D E RThe petitioner is holding the rank of Sub-Registrar. At the relevant time, he was a Special Officer in charge of more than 13Primary Agricultural Cooperative Bank as the Board of Directorwas superseded. In one such society where the petitioner wasincharge as the Special Officer, namely Annur Primary Co-operative Bank, Annur, an enquiry was ordered by the DeputyRegistrar of Cooperative Societies under Section 18 of the TamilNadu Cooperative Societies Act with reference to the functioning of the Society. After enquiry, it was found there was misappropriation of Rs.26,33,090/-. Based on the enquriy report, recommendation was made to launch criminal prosecution both against the Secretary as well as the petitioner who was the https://hcservices.ecourts.gov.in/hcservices/ Special Officer. Accordingly, an FIR was registered under Section 477A and 408 IPC. After the completion of the investigation, a criminal case has been filed, pending before the Judicial Magistrate IV, Coimbatore in C.C.No.1 to 5/2006. 2. During the relevant time, the petitioner was placed under suspension by the impugned order dated 29.12.2006 and subsequently as he had reached the age of superannuation, an order was also passed on the same day to retain him in service in terms of Fundamental Rules 56(1)(C) since the age ofsuperannuation fell on 31.12.2006. The petitioner has now come forward to challenge the order of suspension and the consequential order passed under Fundamental Rules 56(1)(C)challenging that the criminal case laid against him was not valid and the ingredients of Section 477A and 408 IPC is not attracted. If at all the person who is responsible for misappropriation was the Secretary and the Special Officer has no role to play. He had also stated that the incident that is referred to was of the year 1996 and at the time of filing of the case, more than 10 years have lapsed. A further contention was raised that for the offence under the Cooperative SocietiesAct, the provisions of IPC cannot be attracted as the Tamil NaduCooperative Societies Act is a special law falling under the State list and as it receive the assent of the president, anyother law will be repugnant under Article 254(2) of the Constitution.

The writ petition was admitted on 15.03.2007. Pendingthe writ petition, this Court declined to grant interim relief.

When the matter came up today, the learned GovernmentAdvocate produced written instructions issued by the JointRegistrar of Cooperative Societies, Coimbatore region. It is also brought to the notice of this Court that the petitioner filed a discharge petition before the Trial Court under Section239 of Cr.P.C. The learned Judicial Magistrate IV, Coimabtore by his order dated 01.02.2011 dismissed the discharge application. This only proves that there is a prima facie case for framing charge against the petitioner. The contention that the Co-operative Societies Act is a special law and therefore, no prosecution can be launched cannot be accepted. In fact such contention raised in other writ petitions have been dismissed by this Court leaving open the parties to raise all the issues before the appropriate criminal court as and when prosecution is launched. Subsequently, the Tamil Nadu legislature has amended the Cooperative Societies Act and has introduced Section 164-Awhereby, the Act is only in addition to other legislation and there is no bar in proceeding against the employees working in Cooperative Societies in terms of other criminal law. https://hcservices.ecourts.gov.in/hcservices/

The contention that there was a delay cannot be raised as a ground at this juncture. Because the suspension and the consequential retention in service is based upon the criminal case and unless the criminal case is disposed of one way orother, the petitioner cannot be heard to contend either there was a delay in taking action or that he has got prima facie case to succeed before criminal court.

The Supreme Court in Government of A.P. and others vs.V.Appala Swamy reported in 2007 AIR SCW 1639 = (2007) 14 SCC 49held the parameters of interfering with a charge sheet on the ground of delay. It is necessary to refer to paragraphs 12, 14and 15, which reads as follows: "12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can belaid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed tobe quashed on the ground of delay are: (1) where by reason of the delay, the employer condoned the lapses on the part of the employee; (2) where the delay caused prejudice to the employee. Such a case of prejudice, however, is to bemade out by the employee before the inquiry officer........14. Learned counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V.Bijlani v. Union of India(2006 (5) SCC 88).That case was decided on its peculiar facts. In that case, even the basic material on which departmental proceedings could be initiated was absent. The departmental proceedings were initiated after 6 years and continued for a period of 7 years. In that fact situation, it was held that the appellant therein was prejudiced.15. Bijlani, therefore, is not an authority and, in fact, as would appear from the decision in P.D. Agrawal4 for the https://hcservices.ecourts.gov.in/hcservices/ proposition that only on the ground of delay the entire proceedings can be quashed without considering the other relevant factors therefor. "