K.Panneerselvam v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18.01.2012CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.898 of 2012K.Panneerselvam.. Petitioner Vs.

The State of Tamilnadu, rep by the Secretary to Government, Food and Cooperation Department, Fort St. George, Chennai-600 009.

The Registrar, Office of Registrar of Coop. Societies, 170, E.V.R. High Road, Kilpakkam, Chennai-600 010.

The Joint Registrar/Special Officer, The Thanjavur Cooperative Marketing Federation Ltd., (TCMF Ltd.), Thiruvarur-610 001... Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records relating to thecharge memo Rc.164/2011/E2, the Thanjavur Coop. Marketing FederationLtd., Tiruvarur dated 23.3.2011 issued by the third respondent andquash the same as illegal as issued after inordinate delay of 11years without any explanation consequently direct the respondents todisburse with all terminal / retirement and consequential attendantbenefits payable to the petitioner on his retirement, i.e., 29.2.2008with interest from the date of the petitioner's retirement to tillthe date of payment. For Petitioner : Mr.P.Thiagarajan- - - - ORDERThe petitioner has come forward to challenge an order dated23.3.2011 and after setting aside the same seeks for a direction to https://hcservices.ecourts.gov.in/hcservices/ get the consequential benefits. 2. The petitioner who was working as a Cashier in the RegionalOffice, TCMF Ltd., at Thiruthuraipoondi was relieved from duty on29.2.2008 without prejudice to the investigation by the Director of Vigilance and Anti Corruption. By the impugned order, dated23.3.2011, he was issued with a charge memo setting out severalcharges which are to be proved by the list of witnesses found in Annexure-III and also list of documents found in Annexure-IV. Thelist of witnesses runs into as many as 77 persons and that the listof documents listed therein are around 52 documents. 3. The contention raised by the petitioner was that the chargememo was framed after 11 years. Therefore, it has to be quashed onthe ground of delay. In similar cases, this court has quashed thecharge memo.

However, in this case, it is not clear as to why, though thecause of action arose within the jurisdiction of the Madurai Bench, the petitioner has chosen to move this court. Even otherwise, admittedly, the petitioner was an employee of the CooperativeSociety, i.e., Thanjavur Cooperative Marketing Federation Limited andno writ will lie in the light of the larger bench judgment of thiscourt in K.Marappan Vs. The Deputy Registrar of Co-operativeSocieties, Namakkal Circle, Namakkal-636 001 and another reported in2006 (4) CTC 689. Further merely because the petitioner has reachedthe age of superannuation, it does not mean that the enquiry cannotbe proceeded with.

In this context, it is necessary to refer to a judgment ofthe division bench of this court in T.K.K.Tharmar Vs. Registrar, Central Administrative Tribunal, Chennai Bench, Chennai-104 andothers reported in 2008 (3) MLJ 877, wherein after reviewing all theprevious cases including the subsequent pronouncements of the SupremeCourt, it was held in paragraphs 27 and 28 as follows: "27. Therefore, in the light of the above, it has to be held that even after retirement, ifthere are statutory Rules providing forcontinuation of the disciplinary proceedings, noexception can be taken for continuing adisciplinary action by an employer. 28. In the present case, Rule 9 is acomplete answer for the contention raised by thepetitioner. It must also be noted that veryrecently, the Supreme Court in the judgment in U.P.State Sugar Corporation Ltd. and others Vs. KamalSwaroop Tondon (2008) 2 SCC 41 dealt with a case ofthe employer's right to initiate action even afterretirement. The following passage found in https://hcservices.ecourts.gov.in/hcservices/ paragraphs 27 and 28 may be usefully reproduced: Para 27:"In UCO Bank v. Sanwar Mal(2004) 4 SCC 412, the Court held that twoconcepts: (i) resignation; and (ii)retirement were different and employed fordifferent purposes and in differentcontexts. Resignation brings about completecessation of master and servantrelationship, but retirement does not do so. In case of retirement, master and servantrelationship continues for grant of retiralbenefits. Para 28:If it is so, the appellantCorporation, in our opinion, is right insubmitting that the proceedings could havebeen continued after the retirement of therespondent employee as far as the financialloss caused to the Corporation because ofnegligence on the part of employee and thebenefit claimed by the respondent workman onhis terminal benefits are concerned.

A division bench of this court in The Registrar of Co-operative Societies, Kilpauk, Chennai-10 and another Vs. G.Manoharanreported in 2010 (2) CTC 234, after reviewing the case laws inparagraph 33 held as follows :"33. From the records produced in thiscase, the following facts are obvious:-(a)The activities of the first respondenthad caused a great deal of consternation among theauthorities and they were forced to transfer himfrom the place where, according to them, he wascausing a lot of damage. (b)The disciplinary proceedings had beenactually initiated before his age ofsuperannuation, since the first charge memo isdated 6.6.2003, whereas his age of superannuationis 31.6.2003.(c)He had also given a reply to the chargememo dated 6.6.2003, but had not chosen to revealthe fact of the issuance of this earlier chargememo in his writ affidavit. (d)No orders had been passed permittinghim to retire; on the contrary, he was suspendedon the eve of his attaining the age ofsuperannuation. (e)The Supreme Court has held that even ifa person had retired, if it is proved that he had https://hcservices.ecourts.gov.in/hcservices/ caused loss to the establishment, then proceedingscan be initiated to recover the amount of lossfrom him. (f)Even if a person has attained the ageof superannuation, it is possible to dismiss him, in which event, he will not be entitled to histerminal dues vide (2007) 9 S.C.C. 15 (supra).(g)In any event, Section 87 of the Actgives the power to proceed against even a pastemployee for recovery and restoration of thefinancial loss caused to the Society. "

The learned counsel for the petitioner placed reliance upon adecision of a division bench of this court in W.A.No.1390 of 2008 andbatch cases, dated 8.9.2010 in relation to the Tamil Nadu State ApexCooperative Bank Ltd., wherein this court held that a writ petitionwas maintainable and a direction to pay pension was given. However, the circumstances under which the division bench got over the largerbench judgment is not clearly spelt out.

On the other hand, subsequent to the decision of the largerbench judgment in Marappan's case, the Supreme Court had occasion toconsider the maintainability of a Writ Petition in respect of aCooperative Society in more than one judgment.

The Supreme Court vide its judgment in Gurcharan Singh v.Registrar, Coop. Societies, H.P., reported in (2005) 7 SCC 565, atpage 566 in paragraph 2 observed as follows : "2. Learned counsel for the appellant submittedwith reference to a seven-Judge Bench judgment of this Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology1 that the writ petition is maintainable. Bythe said judgment, the decision of the Constitution Benchin the case of Sabhajit Tewary v. Union of India wasoverruled. The Constitution Bench judgment in the case of Ajay Hasia v. Khalid Mujib Sehravardi was explained andmultiple tests for determining whether a particularcorporation or body can be held to be included within thedefinition of “State” under Article 12 of the Constitution, were laid down. It was inter alia held as follows: (SCC p.134, para 40)“40. The picture that ultimately emergesis that the tests formulated in Ajay Hasiacase3 are not a rigid set of principles sothat if a body falls within any one of themit must, ex hypothesi, be considered to be aState within the meaning of Article 12.

Thereafter, the Supreme Court in S.S. Rana v. Registrar, Coop. Societies, reported in (2006) 11 SCC 634, at page 642 inparagraph No.11, considered the entire issue once again and inparagraph 12, observed as follows: "11. Respondent 2, the Society does not answer anyof the aforementioned tests. In the case of a non-statutorysociety, the control thereover would mean that the samesatisfies the tests laid down by this Court in Ajay Hasiav. Khalid Mujib Sehravardi. [See Zoroastrian Coop. HousingSociety Ltd. v. Distt. Registrar, Coop. Societies (Urban).]

It is well settled that general regulationsunder an Act, like the Companies Act or the CooperativeSocieties Act, would not render the activities of a companyor a society as subject to control of the State. Suchcontrol in terms of the provisions of the Act are meant toensure proper functioning of the society and the State orstatutory authorities would have nothing to do with itsday-to-day functions. "12. Thereafter, the Supreme Court, while dealing with theemployees of the Cooperative Society in approaching the High Courtfor appropriate relief in respect of their service conditions, onceagain considered the issue of maintainability of the Writ Petitionvide its judgment in State of Assam v. Barak Upatyaka D.U. KarmachariSanstha, reported in (2009) 5 SCC 694, and in paragraph 13, it wasobserved as follows: "

If the salaries are not paid, the remedy of theemployees of CAMUL is to proceed against CAMUL, inaccordance with law, by approaching the forum under theappropriate labour legislation or the Cooperative SocietiesAct. But a trade union representing the employees of acooperative society cannot, by filing a writ petition, require the Government to bear and pay the salaries of theemployees of the cooperative society, howsoever pervasive, the control of the State Government, over such society. Noris any right created to demand the continuance of financialassistance to a cooperative society, on the ground that suchassistance has been extended by the Government, for severalyears. "13. Further, the Supreme Court in Govt. of A.P. v. V. AppalaSwamy reported in (2007) 14 SCC 49 held the parameters of interferingwith a charge sheet on the ground of delay in paragraphs 12, 14 and https://hcservices.ecourts.gov.in/hcservices/ 15 which read as follows:12. So far as the question of delay inconcluding the departmental proceedings asagainst a delinquent officer is concerned, in ouropinion, no hard-and-fast rule can be laid downtherefor. Each case must be determined on its ownfacts. The principles upon which a proceeding canbe directed to be quashed on the ground of delayare: (1) where by reason of the delay, the employercondoned the lapses on the part of the employee; (2) where the delay caused prejudice to theemployee. Such a case of prejudice, however, is to be madeout by the employee before the inquiry officer........

Learned counsel appearing on behalfof the respondent, however, placed strongreliance on a decision of this Court in M.V.Bijlani v. Union of India(2006 (5) SCC 88). Thatcase was decided on its peculiar facts. In thatcase, even the basic material on whichdepartmental proceedings could be initiated wasabsent. The departmental proceedings wereinitiated after 6 years and continued for aperiod of 7 years. In that fact situation, it washeld that the appellant therein was prejudiced.

Bijlani, therefore, is not anauthority and, in fact, as would appear from thedecision in P.D. Agrawal4 for the propositionthat only on the ground of delay the entireproceedings can be quashed without consideringthe other relevant factors therefor. 14. In the light of the above, the writ petition will standdismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition stands closed. Sd/Assistant Registrar /True Copy/Sub Assistant Registrar vvk https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to Government, The State of Tamilnadu, Food and Cooperation Department, Fort St. George, Chennai-600 009.2.The Registrar, Office of Registrar of Coop. Societies, 170, E.V.R. High Road, Kilpakkam, Chennai-600 010.3.The Joint Registrar/Special Officer, The Thanjavur Cooperative Marketing Federation Ltd., (TCMF Ltd.), Thiruvarur-610 001.+1 CC to Mr.P.Thiagarajan, Advocate for Petitioner SR.No.3228+1 CC to Government Pleader, SR 3509W.P.NO.898 of 2012KJ(CO)PKS31/01/2012