N.Kunnai Gowder v. The Coimbatore District Co-op. Milk Producers' Union Ltd. Pachapalayam, Perur Via Coimbatore

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.8.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIW.A.No.1772 of 2004N.Kunnai Gowder.. AppellantVs1. The Coimbatore District Co-op. Milk Producers' Union Ltd. Pachapalayam, Perur Via Coimbatore – 10 rep. by its Managing Director.2. The Enquiry Officer Domestic Enquiry The Coimbatore District Co-op. Milk Producers' Union Ltd. Pachapalayam, Perur Via Coimbatore – 10.. RespondentsPRAYER: Appeal under Clause 15 of the Letters Patent against the order ofthe learned Single Judge dated 25.2.2004 made in W.P.No.3965 of 2004.This Writ Petition filed under Article 226 of the Constitution ofIndia, praying for the issuance of a Writ of Certiorari calling for theconcerned records relating to the charge memo dated 26.9.1997 passed buthe Ist respondent and quash the same.For Appellant:No appearanceFor Respondents:Mr.P.Narayanamoorthyfor 1st respondent J U D G M E N TP.D.DINAKARAN,JThis appeal arises out of the order of the learned Single Judge dated25.2.2004 made in W.P.No.3965 of 2004 dismissing the writ petition filedby the appellant herein seeking issue of a writ of Certiorari to call forthe records relating to the charge memo dated 26.9.1997 passed by thefirst respondent and to quash the same. https://hcservices.ecourts.gov.in/hcservices/

2.1. A vignette of the facts is suffice. The appellant was workingas Assistant Manager (Industrial Relations) in the first respondent/Co-operative Society. On 26.9.1997, the first respondent issued a charge memoto the appellant alleging that he had regularised the services of casualworkers in anticipation of Board's approval. On 29.10.1997, the appellantsubmitted his explanation denying the allegations levelled against him.The first respondent, thereafter, issued an advance intimation notice on4.11.1997 stating that the appellant is to retire on account ofsuperannuation on the afternoon of 9.1.1998. Subsequently, the firstrespondent, by proceedings dated 9.1.1998, permitted the appellant toretire from the services of the first respondent on 9.1.1998, of course,on condition that the appellant should give an undertaking letter in stamppaper to make good loss, if any, sustained by the first respondent due tothe negligence committed by the appellant during his tenure of service.2.2. There was no headway in the matter and the first respondentmaintained complete silence for over five and half years since theretirement of the appellant, viz., till 29.8.2003, on which date a showcause notice was issued by the first respondent requiring the appellant toshow cause as to why suitable action should not be initiated under theprovisions of the Tamil Nadu Co-operative Societies Act and the Rulesframed thereunder for recovering the loss accrued by the first respondent,due to the violation committed by the appellant in regularising casuallabourers without approval of the Board. The appellant submitted hisexplanation on 6.9.2003, denying the allegations levelled against him andsought the first respondent to withdraw the notice dated 29.8.2003. 2.3. Unconvinced by the explanation dated 6.9.2003 of the appellant,the first respondent issued another show cause notice on 10.9.2003 statingthat the first respondent sustained heavy loss to the tune ofRs.7,92,000/- and required the appellant to submit his explanation within7 days, failing which it was proposed to recover the loss as per theprovisions of the Tamil Nadu Co-operative Societies Act and the Rulesframed thereunder. The appellant, by explanation dated 15.9.2003,reiterated the averments made in his earlier explanation dated 6.9.2003and requested to drop initiation of any further proceedings.2.4. Be that be, second respondent, issued an enquiry notice dated30.1.2004, stating that he had been appointed as an enquiry officer toenquire into the charges levelled against the appellant in the charge memodated 29.6.1997, and required the petitioner to attend the enquiryscheduled on 7.2.2004 at 3.00 p.m.2.5. Alleging that the first respondent had initiated domesticenquiry after his retirement on 9.1.1998, for the alleged commission ofirregularity said to have been committed on 15.12.1994, after lapse ofmore than 9 years, which is contrary to the provisions of law, theappellant preferred writ petition in W.P.No.3965 of 2004 seeking issue ofa writ of Certiorari to call for the records relating to the charge memodated 26.9.1997 passed by the first respondent and to quash the same. https://hcservices.ecourts.gov.in/hcservices/

2.6. The learned Single Judge, by order dated 25.2.2004 made inW.P.No.3965 of 2004, observing that the order impugned is only a chargememo, required the appellant to submit his explanation and dismissed thewrit petition. Hence, this writ appeal.3. There is no representation on behalf of the appellant. Weleafed through the grounds of appeal. We find that the main ground, aidof which is sought for by the appellant, is that the first respondent,having permitted the appellant to retire on his attainment of age ofsuperannuation on 9.1.1998, has no power under law to proceed against him,and therefore, permitting the appellant to retire, but without prejudiceto the right of the first respondent to proceed with the disciplinaryproceedings initiated pursuant to the charge memo is ilegal and withoutjurisdiction.4. Mr.P.Narayanamoorthy, learned counsel for the first respondent isnot in a position to support the stand taken by the first respondent byany statutory provision, insofar as permission was granted to theappellant to retire, without prejudice to the right of the firstrespondent to proceed with the disciplinary proceedings.5. We scanned the materials placed before us in the light of thegrounds of grievance and the contentions raised.6. A departmental proceeding can continue so long as the employee isin service. In the event, a disciplinary proceeding is kept pending bythe employer, the employee cannot be made to retire. In the instant case,no rule has been brought to our notice providing for continuation of suchproceeding despite permitting the employee concerned to retire. Therehas to be a specific provision of law or regulation or a by-law governingthe service conditions of the person in question for continuing adepartmental enquiry, initiated before the date of superannuation, evenafter the employee had retired from service. Without such a provisionbeing available, there cannot be an employer-employee relationshipsurviving after the employee retires from service. Therefore, continuingthe enquiry proceedings or conducting an action against the person afterhis retirement from service cannot be sustained in the eye of law. 7.1. Our view is also supported with the following decisions.7.2. While dealing with the effect of continuance of disciplinaryproceedings after superannuation in the absence of specific provisions,the Apex Court in Bhagirathi Jena v. Board of Directors, O.S.F.C. (1999) 3SCC 666, held as under:“ 7. In view of the absence of such a provision in the abovesaidregulations, it must be held that the Corporation had no legalauthority to make any reduction in the retiral benefits of theappellant. There is also no provision for conducting a disciplinaryenquiry after retirement of the appellant and nor any provisionstating that in case misconduct is established, a deduction could https://hcservices.ecourts.gov.in/hcservices/ be made from retiral benefits. Once the appellant had retired fromservice on 30-6-1995, there was no authority vested in theCorporation for continuing the departmental enquiry even for thepurpose of imposing any reduction in the retiral benefits payableto the appellant. In the absence of such an authority, it must beheld that the enquiry had lapsed and the appellant was entitled tofull retiral benefits on retirement.” 7.3. A Division Bench of this Court in State of Tamil Nadu v. R.Karuppiah, (2005) 2 MLJ 555, also held as under:"29. From the above note it is also clear that to proceed against aGovernment servant, who is under suspension on a charge ofmisconduct, after his retirement, the fulfilling of therequirements under Rule 56(1)(c) of the Fundamental Rules is amandatory one, otherwise, the competent authority cannot have anyjurisdiction on the retired Government servant to proceed againsthim and the non-compliance of the said rule has vitiated all theproceedings initiated against the first respondent and therefore,the same are not sustainable under law and are liable to be setaside."7.4. Again a Division Bench of this Court in P. Muthusamy v. TamilNadu Cements Corporation Ltd., (2006) 4 MLJ 504, wherein taking note ofthe service rules of Tamil Nadu Cements Corporation Limited, it was heldthat retiring a person with liberty to continue disciplinary proceeding,after superannuation, is illegal and without jurisdiction, in the absenceof such a provision in the service rules.8. In view of the admitted factual position in the case on hand thatthere is no specific enabling provision in the Tamil Nadu Co-operativeSocieties Act and the Rules framed thereunder and legal position asreferred to above, we hold that the order of the first respondent,reserving the right to continue the disciplinary proceedings aftersuperannuation, is illegal and without jurisdiction. Resultantly, we allow the appeal, the order of the learned SingleJudge is set aside and all the proceedings initiated against the appellantbased on the observation made in the order permitting him to retire dated https://hcservices.ecourts.gov.in/hcservices/

9.1.1998, viz., without prejudice to the disposal of the charges pendingagainst him, are quashed as the same are passed without any authority oflaw and jurisdiction. No costs.sasiSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Managing Director, Coimbatore District Co-op. Milk Producers' Union Ltd. Pachapalayam, Perur Via Coimbatore – 10 2. The Enquiry Officer Domestic Enquiry The Coimbatore District Co-op. Milk Producers' Union Ltd. Pachapalayam, Perur Via Coimbatore – 10+ One cc to Mr. R. Krishnasamy, advocate sR 54147+ One cc to mr. P. Narayanamoorthy, Advocate sR 52710VRK (co)sg 21/9/07W.A.No.1772 of 200430.8.2007