Atomic Energy EmployeesConsumer Cooperative Stores Ltd.Regd.No.G2160 v. Joint Registrar of Cooperative Societies, Kancheepuram District

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.05.2011 CORAMTHE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALW.A.No.812 OF 2010ANDM.P.No.1 of 2011Special Officer,Atomic Energy EmployeesConsumer Cooperative Stores Ltd.Regd.No.G2160,No.13, 11th Street, KalpakkamKancheepuram District. ... Appellant Vs1.Joint Registrar of Cooperative Societies, Kancheepuram District at Kancheepuram.2.K.Nedunchezhian, Secretary (under suspension), No.1, 5th Street, Kalpakkam-603 102 ... RespondentsPrayer: Appeal filed under Clause 15 of Letters Patent against thatportion of the order dated 30.11.2009 made in W.P.No.14118 of 2009presented this court under Article 226 of the Constitution of Indiato issue of a writ of certiorari to call for the records relating tothe order passed by the Joint Registrar of Cooperative SocietiesKancheepuram and made in Na. Ka. 3871/09 A3 dt 24.6.2009 andreceived on 17.7.2009 the 1st respondent herein.For Apppellant : Mr.N.DamodaranFor First Respondent : Mrs.Malar Vizhi Udayakumar Special Government PleaderFor Second Respondent : Mr.C.Krishnan Senior Counsel for Ms.D.Dhanam https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTM.VENUGOPAL,J.The Appellant/Petitioner has projected this Writ Appeal asagainst that portion of the order dated 30.11.2009 passed by theLearned Single Judge in W.P.No.14118 of 2009 in so far as it isagainst the society.2.The Learned Single Judge while passing orders in W.P.No.14118of 2009 dated 30.11.2009 filed by the Appellant/Petitioner as amongother things observed in paragraph 6 as follows:"The first respondent, while goinginto the correctness of the order placingthe second respondent under suspension,without confining its revision conferredunder Section 153 of Tamil Nadu Co-operative Societies Act, 1983, on theground that there was a bias said to havebeen noticed by the first respondent, hadgone beyond the scope of revisioneljurisdiction and set aside the entiredisciplinary proceedings and therebyexceeded his jurisdiction. Therefore, thisCourt is inclined to set aside the impugnedorder passed by the first respondent. Whiledoing so the petitioner is directed toproceed afresh as if there was no chargemade against the second respondent by giving him a freshnotice and affording reasonableopportunity. Further, the period duringwhich the second respondent was undersuspension is treated as the period onduty. Further the petitioner shall paysubsistence allowances in accordance withlaw. Since the matter is pending for along time, the petitioner shall dispose thematter within five months from the date ofreceipt of a copy of this order."3. The Learned counsel for the Appellant/Writ Petitioner urgesbefore this Court that the Impugned Order of the Learned SingleJudge in W.P.No.14118 of 2009 dated 30.11.2009 which is against theAppellant/Society is contrary to law.4. It is the contention of the Learned counsel for theAppellant/Petitioner that the Learned Single Judge after havingaccepted the case of the Appellant/Petitioner and also having https://hcservices.ecourts.gov.in/hcservices/ allowed the Writ Petition by quashing the impugned proceedingsissued by the First Respondent/Joint Registrar of CooperativeSocieties, Kancheepuram District further held that the FirstRespondent has gone beyond the scope of revisional jurisdiction insetting aside the entire disciplinary proceedings and has committeda serious error in directing the Appellant/Petitioner to proceedafresh as if there has been no charge levelled against the SecondRespondent by providing him a fresh notice and affording areasonable opportunity.5. That apart, it is the submission of the Learned counsel forthe Appellant that the Learned Single Judge ought to have advertedto the fact that already a Charge Memo dated 24.02.2009 has beenissued to the Second Respondent. Moreover, he has been called uponto offer his explanation dated 06.03.2009 to the charges levelledagainst him.6. The stand of the Appellant/Petitioner is that the SecondRespondent before the First Respondent has questioned only the orderof suspension, pending disciplinary enquiry and the Learned SingleJudge while setting aside the same, should have permitted theAppellant to proceed with the Domestic Enquiry by the Sub committeeas per Bye-Laws of the Society pursuant to the Charge Memo, issuedand the explanation projected by the Second Respondent.7. Lastly, the Learned counsel for the Appellant contends thatthe further order passed by the Learned Single Judge in W.P.No.14118of 2009 dated 30.11.2009 to the effect that the period during whichthe Second Respondent has been under suspension is treated as dutyperiod is contrary to law, inasmuch as the same will depend upon theoutcome of the Disciplinary Enquiry that is pending against theSecond Respondent.8. In short the learned counsel for the Appellant/Petitionersubmits that the Learned Single Judge while passing the ImpugnedOrder, in W.P.14118 of 2009 dated 30.11.2009 has not adverted to thefactual, material aspects of the matter in a real and properperspective, which has resulted in serious miscarriage of justice.9.The Appellant/Petitioner in the affidavit in W.P.No.14118 of2009 has stated that the Second Respondent (Secretary underSuspension) has been served with the Charge Memo dated 24.02.2009and a explanation has been called for from him. The SecondRespondent has furnished his explanation dated 06.03.2009, to thecharges framed against him.10.It is the case of the Appellant/Petitioner that the SpecialOfficer of the Appellant/Petitioner Society by means of an order https://hcservices.ecourts.gov.in/hcservices/ dated 19.03.2009, and also by virtue of the powers conferred uponhim as per the amended special Bye-Laws has appointed a SubCommittee comprising of four officers to enquire into the chargesframed against the Second Respondent. The said sub committeeproceeded with the enquiry and commenced examining the witnesses.Pending, disciplinary proceedings, the Second Respondent/Secretaryhas been placed under suspension as per order dated 04.05.2009passed by the Appellant/Petitioner.11.According to the Appellant/Petitioner, the SecondRespondent/Secretary addressed a communication dated 12.06.2009 tothe Chairman of Domestic Employee Sub-Committee, raising certainobjections including the inclusion of one Delhidurai, (FormerSpecial Officer of the Society) as one of the sub committee members.Also the Second Respondent/Secretary raised objection as regardsenquiries made in regard to several employees of the stores relatingto the charges in his absence. The Chairman of the DomesticEnquiry/Sub Committee, after considering the letter of the SecondRespondent has addressed a communication dated 25.06.2009, informinghim of the compliance of all the requests. Based on the said letter,the Sub committee has also intimated the date of hearing for crossexamination of the witnesses as 30.06.2009 and 01.07.2009. TheSecond Respondent/Secretary has been informed that no furtheradjournment would be granted. However, the Second Respondent hasfailed to attend the enquiry.12.The Second Respondent/Secretary has failed to take part inthe disciplinary proceedings and absented himself for severalhearings. In the mean while, the Appellant/Petitioner has receiveda notice dated 02.06.2009 from the First Respondent/Joint Registrarof Co-operative Societies, Kancheepuram informed about the filing ofrevision petition by the Second Respondent/Employee before theauthority as per Section 153 of the Tamil Nadu Co-operativeSocieties Act, 1983. Also, the date of hearing of revision petitionon 22.06.2009 has been intimated.13.The plea of the Appellant/Petitioner is that the SecondRespondent/Secretary has filed the revision petition onlychallenging the order of suspension passed by theAppellant/Petitioner dated 04.05.2009 and for setting aside the samebesides seeking consequential reliefs.14.The Appellant/Petitioner has been shocked to receive theimpugned order in Na.Ka.No.3871/2009 A3 dated 24.06.2009 from theFirst Respondent on 17.07.2009, wherein the said authority hascancelled the entire proceedings including the DepartmentalProceedings initiated by the Society as against the SecondRespondent. https://hcservices.ecourts.gov.in/hcservices/

15. As a matter of fact, the First Respondent/Joint Registrarof Co-operative Societies, Kancheepuram has gone into the chargesissued against the Second Respondent and held that the charges havenot been proved beyond the reasonable doubt, has set aside theproceedings initiated against him.16.The core contention advanced on behalf of theAppellant/Petitioner is that the First Respondent/Joint Registrar ofCo-operative Societies, Kancheepuram should have taken into accountof the fact that what has been challenged before him is only thesuspension order dated 04.05.2009 passed by the Appellant/Petitioneron numerous grounds as stated in the revision petition and not theentire disciplinary proceedings as wrongly presumed.17. As regards the inclusion of one P.Delhidurai, a member of asub committee, it is pointed out that separate orders have beenpassed and the said member on his own has opted out from the saidsub committee.18.It is to be borne in mind that the Sub Committee through itsletter, dated 25.06.2009 has informed the Second Respondent that hewill be given an opportunity to cross examine all the witnesses whohave let in evidence in connection with the charges framed therein.Also, the dates 30.06.2009 and 01.07.2009 have been fixed and thesame has been intimated to the Second Respondent. In thisconnection, it is needless to state that the Second Respondent hasbeen allowed to have a Defence Assistant to help him in the enquirywith a condition that the said Assistant will be an employee ofAEECC stores, Kalpakkam. Therefore, the First Respondent shouldhave taken into consideration of the fact that the Sub Committee hasbeen proceeding with the enquiry in accordance with law, afterfollowing the principles of Natural Justice.19.The other submission made by the Learned counsel for theAppellant/Petitioner is that the Domestic Enquiry is only on apreliminary stage and that the said committee has not submitted itsEnquiry Report to the disciplinary authority which is to take afinal decision on the basis of the report of the said committee.However, this aspect of the matter has not been adverted to in areal and proper perspective, which in turn has caused seriousprejudice to the Appellant/Petitioner. As such theAppellant/Petitioner has prayed for issuance of an order by thisCourt holding that the Impugned Order passed by the First Respondentas per proceedings dated 24.06.2009 is illegal and non est in law. 20.The stand of the Second Respondent/Secretary is that thereis no provision in the Special Bye-Law pertaining to the service https://hcservices.ecourts.gov.in/hcservices/ conditions of the Employees of the Appellant/Petitioner forappointing the sub committee in regard to the conduct of domesticenquiry into charges levelled against the employees of theAppellant. Therefore, the order of the Appellant/Petitioner dated19.03.2009 in appointing the sub committee comprising of fourpersons to conduct the Domestic Enquiry on the charges framedagainst him is an illegal one. Also the same is in negation of theingredients of the Special Bye- Laws of the Appellant/Petitioner.21.According to the Second Respondent/Secretary, the provisionsmentioned in the special Bye-Laws relates to the sub committee fromamong the elected members of the board only to decide the quantum ofpunishment to be imposed on any employee for the proved charges. Assuch the Appellant/Petitioner has misconstrued the provisions ofspecial byelaws and has appointed a sub committee to conduct adomestic enquiry on the charges levelled against him.22. The plea of the Second Respondent is that he has furnisheda letter dated 12.06.2009 to the Chairman of the Sub committeebecause of the fact that the subcommittee has proceeded with theDomestic Enquiry and obtained statements from the witnesses in hisabsence and the copies of the same have not been furnished to him.The Appellant has informed the Second Respondent that Delhidurai(Former Special Officer) has opted out from the Committee. He hasnot attended the Domestic Enquiry proceedings continued by the Subcommittee in a biased manner.23.The Appellant/Petitioner by as per order dated 19.03.2009appointed the Enquiry Committee. According to the SecondRespondent, the enquiry has been conducted on different dates andthe statement of Witnesses have been recorded by the former SpecialOfficer P.Delhidurai without providing him an opportunity to takepart in the enquiry proceedings. The Second Respondent has beenplaced under suspension on 04.09.2009 based on the out come of anillegal enquiry viz., after appointment of Sub committee.24. The Second Respondent has preferred a Revision Petitionbefore the First Respondent/Joint Registrar of Co-operativeSocieties, Kancheepuram(Challenging his order of suspension dated04.05.2009), who is empowered to deal with the same as per Section153 of the TamilNadu Cooperative Societies Act 1983.25.The Second Respondent takes a plea that since the entireproceedings of the enquiry is a unlawful one and also against thePrinciples of Natural Justice, the First Respondent has passed aconceded order holding that the entire proceedings of the enquiryare void in law and therefore there is no impropriety or anyinfirmity in the impugned order of the First Respondent dated24.06.2009. https://hcservices.ecourts.gov.in/hcservices/

26.At this stage this Court aptly points out a decision inM.Thanigaivelu Vs. The Joint Registrar of Co-operativeSocieties,Kancheepuram Zone, Kancheepuram 2004(1) CTC 183 at page183 at page page 186, wherein in paragraph 8 it is inter aliaobserved as hereunder."...when the petitioner has raisedspecific ground in the affidavit filed insupport of the writ petition, thatsurcharge proceedings was not even markedbefore the first respondent in any of thehearing dates, the said factor has not beenrefuted at all in the counter-affidavitfiled by the first respondent. In fact,thecounter affidavit has been filed by thevery same officer who has passed the orderimpugned in this Writ Petition. Therefore,it could not have escaped his attentionwhile dealing with the point raised by thepetitioner in the affidavit. In suchcircumstance, it will only lead to theconclusion that the surcharge proceedingsrelied upon by the first respondent was notpart of the material records in theRevision Proceedings, in which event, thereliance placed upon by the firstrespondent to reject the petitioner'srevision, cannot be countenanced. In anyevent, when it is pointed out by thepetitioner that the said surchargeproceedings have been challenged by way ofan appeal before the Tribunal and that theoperation of the said proceedings have beenstayed, if only the first respondent hadput the petitioner on notice about his ideaof relying upon the said proceedings, thepetitioner would have had an opportunity toshow that the said proceedings have beenstayed by the Tribunal and therefore, thesame could not have been relied upon. Bysuch conduct of the first respondent inrelying upon the proceedings behind theback of the petitioner,the petitioner wasreally put to serious prejudice andtherefore, in every respect, the order ofthe first respondent is faulty and the samecannot be allowed to remain. Therefore,while setting aside the order impugned in https://hcservices.ecourts.gov.in/hcservices/ the writ petition, the first respondent isdirected to hold the enquiry afresh andafter giving specific marking of all thematerial documents placed before him andafter giving due opportunity to thepetitioner as well as the secondRespondent, pass fresh orders within sixmonths from the date of receipt of copy ofthe order."27. This Court has heard the learned counsel appearing for theparties and noticed their contentions.28.It transpires from the Revision Petition dated 22.05.2009that the Second Respondent/Secretary has prayed for setting asidethe order of temporary suspension passed against him by theAppellant dated 04.05.2009. However, on going through the impugnedorder in Na.Ka.No.3871/09 A3 dated 24.06.2009 passed by the FirstRespondent, it is quiet evident that the First Respondent has setaside the proceedings initiated against the Second Respondent whichin our considered opinion is beyond the ambit and power of the saidauthority. As such that portion of the order of the FirstRespondent, which relates to setting aside of the entireDisciplinary proceedings is liable to be set aside and accordinglywe set aside the same to prevent an aberration of justice.Furthermore, the other portion of the order passed by the LearnedSingle Judge, in W.P.No. 4118 of 2009 dated 30.11.2009 in directingthe Appellant/Petitioner to proceed afresh as if there is no chargemade against the Second Respondent by providing him a fresh noticeand affording a reasonable opportunity is also not an valid one inour considered opinion. Hence the same is set aside by this Court topromote Substantial cause of Justice. Viewed in that perspective,the Writ Appeal succeeds. 29. In the result, the Writ Appeal is allowed leaving theparties to bear their own costs. The Appellant/Petitioner isdirected to proceed with the disciplinary proceedings against theSecond Respondent/Secretary from the stage of conducting thedisciplinary enquiry by the sub committee (appointed in this regard)as per the rules and regulations of the Society, in conformity withthe Principles of Natural Justice, pursuant to the Charge Memo dated24.02.2009 and the explanation submitted by the Second Respondentdated 06.03.2009, in accordance with law, by providing him with anadequate opportunity. Further the Appellant/Petitioner is tocomplete the disciplinary proceedings against the Second Respondentwithin a period of three months from the date of receipt of a copyof this order. It is open to the Second Respondent/Secretary toraise factual and legal pleas available to him before the competent https://hcservices.ecourts.gov.in/hcservices/ authority, as envisaged by law. Consequently, connectedMiscellaneous Petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.arrTo1.Joint Registrar of Cooperative Societies, Kancheepuram District at Kancheepuram.2.K.Nedunchezhian, Secretary (under suspension), No.1, 5th Street, Kalpakkam-603 1021 cc to M/s. N. Damodaran, Advocate, Sr. 31297W.A.NO.812 OF 2010NR (CO)kk 26/5