D. Chandrasekaran v. State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:22-10-2009CORAMTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANW.P.No.5672 of 2003D.Chandrasekaran ... PetitionerVersus1.State of Tamilnadu rep. by its Secretary to Government,Co-operative Department, Fort St.George, Chennai-9.2.The Joint Registrar of Co-operative Societies, Vellore District, Vellore.3.The Management/Special Officer C-2546 Umarabad Primary Agricultural Cooperative Bank, Umarabad Post, Vellore District-635 808. ... RespondentsWrit Petition filed under Article 226 of Constitution ofIndia praying for the issuance of Writ of Certiorarified Mandamuscalling for the records of the second respondent in Rc.12055/2001A2 dated 29.4.2002 and quash the same and consequently direct therespondents to reinstate the petitioner in service as Clerk in thethird respondent society. For Petitioner :Mr.V.K.Rajagopalan For Respondent :Mr.P.Gurunathan Government Advocate for RR 1 and 2 Mr.S.V.Durai Solaimalai for R3 ORDERThe writ petition has been preferred by the dismissedSecretary to Umarabad Primary Agricultural Co-operative Bank,Umarabad Post, Vellore District. The dismissal order was passed on31.8.1999 against which the petitioner preferred a revision whichwas dismissed by the second respondent by an order dated 29.4.2002which is impugned before this court. https://hcservices.ecourts.gov.in/hcservices/

2.The facts of the case are as follows:The petitioner stated that he was appointed as a clerk on22.1.1990 in the third respondent bank and was holding in chargepost of Secretary from 17.3.1992. Certain irregularities werealleged to have been committed by the petitioner, while he wasworking as Secretary incharge of the society and by oneMr.N.M.Samy, who was serving in third respondent bank as a clerk.Various charges were made against them. There was allegation ofmisappropriation of amount to the tune of Rs.8,41,342.85. For thesaid charges, the petitioner was placed under suspension on1.10.97 and a charge memo was issued on 31.10.1997 for which thepetitioner submitted his explanation on 26.12.1997.3.A domestic enquiry was ordered and one Mr. P.Natarajan,Deputy Registrar (Retired) was appointed as enquiry officer andhe found that out of eleven charges seven charges were proved andgave his report on 30.1.1999. A copy of the enquiry report wasserved on the petitioner and after giving opportunity to him, thethird respondent bank dismissed the petitioner from the service.4.The petitioner preferred a revision before the secondrespondent and as no orders were passed by the second respondent.Hence the petitioner was compelled to approach this court by wayof W.P.No.11821 of 2001 for a direction to dispose of the revisionand the same was ordered on 27.6.2001. Pursuant to the orderspassed by this court dated 27.6.2001, the revision petition filedby the petitioner was heard by the second respondent and afterhearing both the parties the second respondent confirmed the orderof dismissal and against which only the present writ petition hasbeen filed.5.Mr.V.K.Rajagopalan, learned counsel for the petitionersubmitted that the petitioner was only incharge Secretary and hewas in no way involved in the irregularities said to have beencommitted; that one Mr.Ramaswamy, who misappropriated the moneyhad agreed to pay back the amount and a sum of Rs.8,41,342.85/-was remitted by him and that he also agreed to remit a sum ofRs.3,13,242.65/- to the bank. Firstly when the offender himselfagreed to remit the misappropriated amount and paid back themoney, there was no question of any misappropriation by thepetitioner. Secondly he submitted that there may be somedereliction of duties on the part of the petitioner, as he was theSecretary incharge and that the dereliction would not make thethird respondent to dismiss the petitioner from the services ofthe bank. 6.Learned counsel for the petitioner relied upon ajudgement of the Honourable Supreme Court in Kailash Nath Gupta https://hcservices.ecourts.gov.in/hcservices/ vs. Enquiry Officer (R.K.Roi)Allahabad Bank and others reported inAIR 2003 SC 1377. In that case, a bank officer was removed fromservice on account of some procedural irregularities said to havebeen committed by him. The procedural irregularities caused lossof small advances to the bank. While dealing with the matter, theHonourable Supreme Court held that when there was no evidence toshow that the delinquent officer misappropriated any money orcommitted any fraud and when the loss caused to the bank may berecovered from the delinquent officer, the proceduralirregularities cannot be termed as negligence to award extremepunishment of dismissal from service and the matter was remandedback for reconsideration of quantum of punishment. Relying uponthe said judgement learned counsel for the petitioner strenuouslycontended that in this case also the petitioner did not commit anyact of misappropriation. Whereas the officer Mr.N.Ramasamy, whowas responsible for the misappropriation agreed to pay the amountand accordingly the amount was also paid. When such is theposition there was neither loss to the bank nor anymisappropriation by the petitioner. Hence he sought for reductionin the punishment awarded by the bank to the petitioner.7.On the other hand Mr.S.V.Dorai Solaimalai, learnedcounsel for the third respondent contended that the petitioner wasthe Secretary at the relevant point of misappropriation. He was aofficer as defined under Section 2 (19) of the Tamil Nadu Co-operative Societies Act 1983 and he alone was responsible for dayto day administration and management of the third respondent bankwhich the farmers are depending upon for their agriculturaloperations.8.In nutshell learned counsel for the third respondent saidthat the petitioner is vested with responsibility of safeguardingthe money and property of the third respondent and he miserablyfailed to do the same. Secondly he submitted that merely becauseof Mr.Ramasamy, the clerk, took the responsibility of returningmoney to the bank it would not condone the criminal act committedby the Ramasamy as well as the petitioner and hence no leniencyshould be shown to the petitioner. He further submitted that mostof the Co-operative Societies in Tamil Nadu are suffering frommismanagement and their moneys were looted by their officialsresulting in poor agriculturists, who are depending upon thevillage Agricultural Co-operative Bank are suffering. He finallysubmitted that under Section 81 of the Tamil Nadu Co-operativeSocieties Act, statutory enquiry was conducted against thepetitioner by the Deputy Registrar and the investigation done bythe police officials, revealed the fraud committed by thepetitioner along with others. The enquiry finally culminated intocriminal proceedings in C.C.No.18 of 2002 in which a judgement wasgiven by the Judicial Magistrate No.II, Vellore. The petitioner as https://hcservices.ecourts.gov.in/hcservices/ well as Mr.Ramasamy were found guilty under Sections 409 read with109 I.P.C. Eventhough they were convicted and they were releasedunder probation of offender Act. Referring to the judgement givenby the Criminal Court, learned counsel for the third respondentMr.S.V.Dorai Solaimalai submitted that in the criminal case thepetitioner and Mr.Ramasamy were found to be guilty and no leniencywould be shown to the petitioner. 9.Heard the learned counsel for the parties and perused thematerials on record. 10.Firstly it is an admitted case that during the relevantperiod of misappropriation the petitioner was the Secretary ofthe third respondent bank. Mr.Ramasamy, who worked as clerk,misappropriated the money of the third respondent bank and forwhich the petitioner was found to be assisting, which was provedbefore the Criminal Court in C.C.No.18 of 2002, wherein apunishment was given to them by the judgement dated 13.4.2002.Even though the findings in the Criminal court are not binding thecivil court, the same may be looked into for deciding the caseherein. Secondly the petitioner was issued with a charge memo anda domestic enquiry was conducted, where the petitioner alsoputforth his case and the enquiry officer found that out ofeleven seven charges were proved against the petitioner. Thefindings of facts given by the enquiry officer cannot be set asideby this court by exercising writ jurisdiction under Article 226 ofthe Constitution of India. The finding of the facts had alreadyattained finality. In this case a decision was taken by the thirdrespondent management. It has been laid down in a similar matterin the case of Employers of Firestone Tyre and Rubber Co.(Private) Ltd. v. The Workmen reported in AIR 1968 SC 236 (V 55 C58). It has been decided by the Supreme Court that this courtcannot exercise the appellate power over the decision of themanagement. 11.It is not the case of the petitioner that the enquiryofficer or revisional authority does not look into the evidence inproper perspective or the order of dismissal was passed on noevidence. In the absence of any attack in this regard, thefindings of the enquiry officer and the resultant dismissal orderand also the confirmation order passed by the Revisional Authoritycannot be found fault with. In this case, the findings given bythe domestic enquiry officer has been confirmed by the managementand the decision cannot be interfered with under Article 226 ofthe Constitution of India. The above said proposition has beengiven in 2007 (2) L.L.N 55. Similarly in the matter of Rahimal(Dead) by LRs and another vs. Deputy Director of Consolidation andothers reported in (2002) 10 SCC 94, it was held that the findingrecorded is the finding of fact and the same cannot be assailed in https://hcservices.ecourts.gov.in/hcservices/ the appeal. In Ranjeer Singh vs Ravi Prakash reported in (2004) 3SCC 682 it has been held by the Honourable Supreme Court that theHigh Court cannot act as an appellate court and re-appreciate orre-evaluate the evidence while exercising Certiorari orSupervisory jurisdiction. This court cannot act as an appellateforum over the judgement of the lower authority under Article 226of the Constitution of India. Similar view was also expressed inShamshad Ahmad and others vs. Thilak Raj Bajaj (deceased) throughLRs reported in (2008) 9 SCC. In D.N.Bonnerji vs. P.R.Mukherjeereported in AIR 1953 SC 58 the Honourable Supreme Court laid downthe principles that unless there is any miscarriage of justice orerror apparent in law calling for intervention, it would not forthe High Court under Article 226 and 227 of the Constitution ofIndia to interfere with. Similarly in this case also there is nomiscarriage of justice. The petitioner herein was found to beassociated with Mr.Ramasamy aiding him for misappropriation andwas convicted under Sections 409 read with Section 109 IPC. Theorder of dismissal was rightly passed by the third respondent. Therevisional authority also looked into various aspects and alsolooked into the statutory enquiry done under Section 81 of theTamil Nadu Co-operative Societies Act 1983 and rightly concludedthe order of dismissal passed by the third respondent. 12.As far as the contention of Mr.V.K.Rajagopalan that whenthe petitioner was not found to be misappropriating money, hedeserves a lesser punishment other than the dismissal fromservice. When the acts of commission and omission were found to beagainst the interest of society from which the petitioner wasworking for his livelihood, he cannot be shown any leniency bythis court. As rightly pointed out by the third respondent thatmost of the rural banks namely Agricultural Co-operative Societiesare suffering because of the acts of mismanagement by theirofficials. The acts done by the officials like petitioner make theCo-operative societies sick and consequently affect theAgricultural operation which is the back bone of our country.Needless to state that the agriculture sector is already aneglected sector. Hence no leniency can be shown to the petitionerand accordingly the writ petition is dismissed. No costs. Therewill be no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.vk https://hcservices.ecourts.gov.in/hcservices/ To:1.The Secretary to Government, Co-operative Department, Fort St.George, Chennai-9.2.The Joint Registrar of Co-operative Societies, Vellore District, Vellore.3.The Management/Special Officer C-2546 Umarabad Primary Agricultural Cooperative Bank, Umarabad Post, Vellore District-635 808. 1 cc to Mr.V.K. Rajagopalan, Advocate, SR. 561011 cc to Government Pleader, SR.56085W.P.No.5672 of 2003RSY (CO)kk 30/12