M.K.S.Balasubramanian v. The Kancheepuram Central Cooperative Bank Limited

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 4.10.2007CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMW.P.NO.7672 OF 2006andWMP.NO.8436 OF 2006M.K.S.Balasubramanian ...PetitionerVs.The Kancheepuram Central Cooperative Bank Limited,(rep. by its Special officer)15-G, Skikpet North Street,Kanheepuram 631 501 ..RespondentPetition filed under Article 226 of the Constitution of India toissue a writ of Certiorari as stated withinFor Petitioner: Mr.P.AnbarasanFor Respondent: Mrs.G.ThilagavathiO R D E RSeeking to issue a writ of Certiorari to quash the charge memodated 31.3.2005 issued to the petitioner by the respondent bank and alsofor further direction to pay the retirement benefits, the petitioner hasbrought forth this writ petition.2. Affidavit in support of the petition and counter affidavitare perused.3. The Court heard the learned counsel on either side.4. The case of the petitioner is that the petitioner joined theKancheepuram Central Cooperative Bank Limited as a Clerk in the year 1963,that he was working at different branches of the Bank at Tiruthani,Kunrathur and Porur respectively, that he was promoted as Supervisor andthen as Assistant Manager, that he retired from service on 31.6.2006 afterthe service of 42 years. A charge memo was served upon him on 29.7.2004stating that he failed to discharge his duties on the ground that twoloans became over due and he failed to collect the same. The petitionertendered his explanation on 21.2.2005 indicating that in the case of one https://hcservices.ecourts.gov.in/hcservices/ loan where the action was initiated, the borrower filed a writ petition,initiated suit proceedings and prevented the statutory action for recovery. Just before his retirement, that was on 23.3.2005, a charge memo whichis the subject matter of challenge, was served upon him alleging that hemade acceptance of payment of Rs.1,83,669/- given by the borrower by nameone Mr.Vaithilingam on 28.6.2002 under one time settlement scheme and thepetitioner has put forth his explanation and while the matter stood thus,he retired from service on 31.3.2005 without prejudice to the disciplinaryaction taken against him. Under such circumstances, the writ petition hasbeen brought forth to quash the charge memo. Further once he retired,there cannot be legal impediment for giving the retirement benefits forwhich a direction has got to be given to the respondent bank. 5. Arguing for the petitioner, learned counsel would submit thata charge memo has been served on him on 23.3.2005 which relates toacceptance of payment of Rs.1,83,659/- from the borrower on 28.6.2002under one time settlement scheme. The petitioner immediately on receipt ofthe said payment, forwarded the application to the respondent for thepurpose of approval on 28.6.2002 itself. The rest of the payment wasreceived subsequently on 28.9.2002 and before that time, he was actuallytransferred from Kunrathur to Porur on 5.8.2002. Apart from this, theorder of rejection of the said application stating that the borrowerMr.Vaithilingam was not entitled for the benefit of one time settlementwas issued by the bank to the said borrower on 18.9.2002. Under suchcircumstances, he has simply forwarded the proposal for one timesettlement to the respondent and thus he was in no way liable orresponsible for one time settlement at all. Learned counsel would furtheradd that in the instant case, pending the charge memo, he retired fromservice on 31.3.2005. Once he was allowed to retire, no question ofproceeding the disciplinary action further without any legal sanction andthat too when there is no specific provision or rules under theCooperative Societies Act to proceed with the disciplinary proceedings. Insupport of his contention, he has relied on the decision of this Court inW.A.No.4108 of 2003 and hence the proceedings must be quashed. Learnedcounsel would further add that there is no impediment on the part of thebank in disbursing the retirement benefits, pending disciplinaryproceedings. Under such circumstances the charge memo has got to bequashed and the writ petition has to be allowed6. Heard the learned counsel for the respondent. According tothe respondent, in the instant case, it is true that the petitioner hasforwarded one time settlement proposal along with the 1/4th amountreceived from the borrower on 28.6.2002. Even before that he has issued acommunication to the borrower on 20.5.2002. A reading of the saidcommunication would clearly indicate that the communication was addressedto the borrower pursuant to the G.O.70 that the borrower is entitled tohave the one time settlement and therefore, if he makes the payment, theentire transaction would be over and thus the communication itself wassent without any authority. Added further on the strength of the same, he https://hcservices.ecourts.gov.in/hcservices/ has received 1/4th of the amount from the borrower, pursuant to the saidG.O. and he has also forwarded the same and thus it was the act done byhim without any power whatsoever. Under such circumstances, the chargememo came to be issued and proceedings were pending and hence it has gotto be proceeded with. Nextly, the contention put forth by the learnedcounsel for the petitioner that without any rule or provision under theCooperative Societies Act, the disciplinary proceedings cannot beproceeded with against the petitioner after retirement on superannuation,cannot be countenanced for the reason that even before he retired onsuperannuation, rules have been framed and pursuant to the rules,disciplinary proceedings can be proceeded with and it cannot be quashed.Learned counsel for the respondent would further add that even the rulesframed for continuation of disciplinary proceedings, despite theretirement of the delinquent, was challenged in a writ petition and it ispending. But, at the same time ,it has got to be awaited till the disposalof the said writ petition. If this writ petition is ordered andproceedings are quashed and further a direction is also issued for paymentof retirement benefits, the bank cannot have any remedy to recover itsmoney and there will be a loss to the Institution and hence it should notbe allowed. Under such circumstances, the writ petition has got to bedismissed. 7. The Court paid its anxious consideration on the submissionmade. It is not in controversy that the petitioner had been served withcharge memo on 23.3.2005 and he has also tendered his explanation and healso retired on attaining superannuation on 31.3.2005. Though on the daywhen he retired, the disciplinary proceedings were pending against him,he was allowed to retire from service. The charges framed against him wasthat he has allowed one time settlement proposal to the borrower by nameVaithilingam and by doing so, the bank has sustained loss. It is not incontroversy that the said Vaithilingam made borrowal and he was allowed tomake the payment towards mortgage dues. For the first time, thecommunication was issued by the petitioner herein on 20.5.2002 callingupon the borrower to make the payment of Rs.7 lakhs stating thatthe said notice was issued pursuant to the said G.O.70 and if the paymentwas made, the entire transaction would be over and based on the saidrepresentation, the said Vaithialingam has made 1/4th payment on28.6.2002. Now, at this juncture. It is pertinent to point out that underwhat authority, the petitioner has issued such a letter on 20.5.2002remained unknown. Learned counsel for the petitioner would submit that acertificate was issued by the District Authority to issue such a noticeand in the absence of such materials placed in the hands of the Court, itcannot be accepted. Further, in the instant case the contention of thelearned counsel for the petitioner is that the disciplinary proceedingscannot be continued in the absence of any legal sanction. But, in theinstant case, learned counsel for the bank would submit that rules wereframed before the retirement of the petitioner and those rules arechallenged in a writ petition and it has also been pending. This Courtfinds some force in the contention made by the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ respondent that if at this juncture, this writ petition is allowed eitherby quashing the charge memo, either or directing the bank to disburse theretirement benefits, the bank cannot take all steps for recovering thesame, if he comes successful in the writ petition. Under suchcircumstances, this Court has to find out a method by which the bank'sinterest can be secured,but at the same time in respect of the rest of theamount, there cannot be any impediment for the petitioner to have theretiral benefits. According to the learned counsel for the respondent, theentire benefits which have already accrued in favour of the petitioner,come to the tune of Rs.4,83,348/- and the loss alleged to have beensustained by the act of the petitioner, is Rs.2,69,983/- towards interest.Under such circumstances, except the loss what is alleged to have beenoccasioned to the bank as stated above, there cannot be any impediment forgiving a direction to the bank to disburse the remainder. In respect ofthe amount of Rs.2,69,983/- which according to the bank was the thatoccasioned and in respect of which charge is also pending, there is noimpediment for the respondent bank to initiate surcharge proceedings forrecovery of the same and the respondent is directed to pay the rest of theamount, within a period of eight weeks from the date of receipt of a copyof this order.8. With the above observation, the writ petition is disposed of.No costs. Consequently, WP.MP.No.8436 of 2006 is disposed of.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarVJYToThe Special officerThe Kancheepuram CentralCooperative Bank Limited,15-G, Skikpet North Street,Kancheepuram 631 501 1 cc To Mr.G.Thilagavathi, Advocate, SR.61832.1 cc To Mr.P.Anbarasan, Advocate, SR.61583.W.P.No.7672 of 2006 and WP.MP.N0.8436 OF 2006 TEJ(CO)RVL 17.10.2007