K.Sadasivam v. The Additional Registrar of Co-operative Societies (Sales, Plan and Development) Chennai – 600 005 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.11.2009CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.No.1622 of 2008K.Sadasivam.. PetitionerVs.1. The Additional Registrar of Co-operative Societies (Sales, Plan and Development) Chennai – 600 005.2. The Joint Registrar of Co-operative Societies, Erode Region Erode – 638 003.3. The Special Officer Kangayam Primary Agricultural Co-operative Bank Ltd., AA 220 Kangayam – 638 701, Erode District... RespondentsPRAYER: Petition under Article 226 of the Constitution ofIndia for issue of a writ of Certiorarified Mandamus tocall for the records pertaining to the impugned order dated7.11.2007 made in Na.Ka.No.126073/2007 Sa.Pa.1 passed bythe first respondent herein, to quash the same and todirect the respondents to reinstate the petitioner withcontinuity of service and other attendant benefits.For Petitioner:Mr.N.ManokaranFor Respondents:Mr.T.SeenivasanAdditional Government Pleaderfor respondents 1 and 2Mr.K.V.Shanmuganathanfor 3rd respondent ORDERHeard Mr.N.Manokaran, learned counsel for thepetitioner and Mr.T.Seenivasan, learned AdditionalGovernment Pleader appearing for respondents 1 and 2, apartfrom Mr.K.V.Shanmuganathan, learned counsel for the thirdrespondent.2. The writ petition is directed against the order ofthe first respondent dated 7.11.2007, by which the firstrespondent, by exercising his suo moto powers conferredunder Section 153(1) of the Tamil Nadu Co-operative https://hcservices.ecourts.gov.in/hcservices/ Societies Act (for brevity, "the Act"), while setting aside the orderdated 29.5.2007 passed by the second respondent under Section 153(1)of the Act, held that the petitioner is deemed to have resigned fromservice as per his letter of resignation dated 24.1.2005, which wasconfirmed by the resolution of the third respondent/Bank dated11.10.2006.3.1. The brief facts leading to the passing of the impugnedorder by the first respondent are that the petitioner was appointedas a Clerk in the third respondent/Bank on 19.8.1988 andsubsequently, he was promoted as Assistant Secretary of the thirdrespondent/Bank on 31.3.2003. It is stated that due to certainreasons he has submitted his resignation letter on 24.1.2005, whichaccording to him was not accepted for a period of two years. It ishis case that on 9.10.2006 and 7.11.2006 he has written letters tothe third respondent withdrawing the resignation letter dated24.1.2005. However, the third respondent/Bank on 11.10.2006 haspassed resolution accepting his resignation dated 24.1.2005 andpassed appropriate orders. 3.2. As against the resolution of the third respondent dated11.10.2006, the petitioner has filed an application before the secondrespondent under Section 153(1) of the Act. The second respondent,after conducting enquiry, by order dated 29.5.2007 directed the thirdrespondent to reconsider the case of the petitioner afresh and passappropriate orders. However, in the order, the second respondent hasrecorded a finding that the resignation given by the petitioner on24.1.2005 was voluntary in nature and not under extraneouscircumstances or at the compulsion of anyone.3.3. It was thereafter, based on the order of the secondrespondent dated 29.5.2007, the third respondent has passed an orderon 13.8.2007 reinstating the petitioner in service as AssistantSecretary. It was in those circumstances, by exercising the suo motopowers under Section 153(1) of the Act, the first respondent haspassed the impugned order. Admittedly, the first respondent beforepassing the impugned order has directed the petitioner by hiscommunication dated 30.10.2007 to appear in person for an enquiry on5.11.2007 at 5 p.m. It is also admitted by the petitioner that on5.11.2007 at 5 p.m. he participated in the enquiry conducted by thefirst respondent. Thereafter, within two days, namely on 7.11.2007,the impugned order came to be passed by the first respondentobserving that the second respondent in the earlier order dated29.5.2007 having found that the petitioner has given resignation on24.1.2005 voluntarily, ought not to have given direction to the thirdrespondent to reconsider the case of the petitioner and holding thatthe resignation given by the petitioner on 24.1.2005 having beengiven voluntarily and having been accepted by the third respondent byresolution dated 11.10.2006, there is no question of reconsideringthe case of the petitioner and concluded that the conduct of the https://hcservices.ecourts.gov.in/hcservices/ third respondent in reinstating the petitioner from 13.8.2007 is notvalid in law.4. The grievance of the petitioner, as submitted by the learnedcounsel for the petitioner, is that even though the petitioner hasappeared for an enquiry on 5.11.2007, within two days the impugnedorder came to be passed and the petitioner was not given sufficientopportunity to participate in the enquiry to defend his case.5. Mr.T.Seenivasan, learned Additional Government Pleaderappearing for respondents 1 and 2 has produced the file. Counteraffidavit has also been filed by the respondents. It is seen fromthe file that the petitioner has, in fact, participated in person inthe enquiry conducted by the first respondent on 5.11.2007 and thesame is evident from the signature put by him in the proceedings ofthe first respondent and thereafter, within two days the firstrespondent has passed the impugned order.6. It is not the case of the petitioner that he was notpermitted to put forth his defence in the suo moto revision. Hiscase is that sufficient opportunity has not been given to him toexplain his case before the first respondent and therefore, the firstrespondent has not followed the principles of natural justice. Asit is has been repeatedly held by the Supreme Court, compliance ofprinciples of natural justice is not an empty formality. It is ameaningful phrase. Wherever it has to be applied, it has to beapplied in full sense. What is to be seen is that whether thepetitioner should be given reasonable opportunity to put forth hiscase elaborately once again or not.7. The facts which are stated above clearly show that thesecond respondent, who has passed the earlier order dated 29.5.2007under Section 153(1) of the Act, has given a categoric finding thatthe petitioner has given resignation letter on 24.1.2005 and the samewas given voluntarily and not at the instance of anyone. The recordsshow that the reason that the petitioner has given in the resignationletter is that enormous number of depositors have approached thethird respondent for the purpose of refund of money and it was inthose circumstances, out of fear, the petitioner and others havesubmitted resignation letters.8. Now, another fact which has to be considered is as to whetherthe letters of the petitioner dated 9.10.2006 and 7.11.2006, statedto have been the letters by which the earlier letter of resignationdated 24.1.2005 was withdrawn, are actually letters of withdrawal ofresignation or not.9. If really the petitioner has given resignation on 24.1.2005due to the reasons which are beyond his control, due to illness, etc.and thereafter before the resignation letter is accepted by the https://hcservices.ecourts.gov.in/hcservices/ competent authority if the petitioner either becomes physicallyalright or otherwise, he is given opportunity to withdraw hisresignation so as to enable him to continue his functions and that isthe purpose for which such right is given to a government servant towithdraw his resignation. Under the facts of the present case, as itis seen, the resignation is not given on account of illness of thepetitioner or for reasons beyond his control, but it is given out offear, as large number of depositors were seeking refund of theamounts deposited and that does not give a right to the petitioner torethink to join duty in the third respondent, once the position ofthe third respondent/bank has become stable.10. On the other hand, a reading of the said two letters dated9.10.2006 and 7.11.2006, which are posed to be letters of withdrawalof resignation dated 24.1.2005, makes it abundantly clear that thoseare not letters withdrawing the resignation letter dated 24.1.2005 atall. The letter dated 9.10.2006 says that even though the petitionerhas voluntarily given resignation on 24.1.2005, since there is achange in the Government and the previous Executive Committee haschanged and the third respondent/Bank has been brought under theSpecial Officer's control, he has decided to join duty once again. 11. Again the further letter dated 7.11.2006 of the petitionerstates that since the resignation given by the petitioner has notbeen accepted for two years, he has decided to join duty andtherefore, requested the third respondent to give him employment. 12. It is the contention of the learned counsel for thepetitioner that even though the contents of the letter may notsatisfactorily indicate that it amounts to withdrawing theresignation, the same have to be taken as withdrawal of resignationon a total reading of the said letters. I do not accept the saidcontention. A reading of the said letters categorically show thatthe petitioner has never given any reason for the purpose ofwithdrawing of the earlier letter of resignation dated 24.1.2005.The petitioner has not even stated that he is withdrawing the earlierletter of resignation dated 24.1.2005.13. At this juncture, it would be relevant to extract the saidletters dated 9.10.2006 and 7.11.2006, which read as follows:Letter dated 9.10.2006:"ehd; fle;j 16 tUl';fshf fh';fak; Tl;Lwt[ bjhlf;f ntshz;ik Tl;Lwt[ t';fpapy;gzpahw;wpte;njd;/ ,e;epiyapy; Ke;ija Ml;rpapd;nghJ. v';fs; t';fpapy; eph;thf FGMSk; fl;rpia nrh;e;jth;fshf ,Ue;jhh;fs;/ eph;thfj;jpy; mth;fs; jiyaPL mst[ fle;jjhf ,Ue;jikahy; vd;dhy; bjhlh;e;J gzpahw;w ,aytpy;iy/ Mfnt ehdhfntKd;te;J vdJ ntiyia 24/1/2005 njjpapy; uh$pdhkh bra;J uh$pdhkh fojk;bfhLj;Jtpl;nld;/ md;W Kjy; ehd; ntiyf;F bry;tjpy;iy/Mdhy; jw;nghJ Ml;rpkhw;wk; Vw;gl;L. Ke;ija eph;thff;FGt[k; mfw;wg;gl;L. jdp https://hcservices.ecourts.gov.in/hcservices/ mYtyhpd; bghWg;gpy; eph;thfk; khw;wkhfpa[s;sJ/ ,e;epiyapy; kPz;Lk; gzpapy; nrh;e;Jgzpahw;w tpUk;g[fpnwd;/ehd; uh$pdhkh fojk; bfhLj;jij eph;thfk; ,JfhWk; Vw;Wf;bfhs;stpy;iy/vdf;Fr; nruntz;oa epjpg;gad;fisa[k; tH';fk; ,y;iy/Mfnt ,e;jr; R{H;epiyapy; ehd; kPz;Lk; gzpapy; nru tha;g;g[fs; cs;sjhf ehd;fUJfpnwd;/ Mfnt ehd; kPz;Lk; gzpapy; nru cj;jput[ gpwg;gpj;J cjt[khW gzpt[ld;nfl;Lf;bfhs;fpnwd;/”Letter dated 7.11.2006:“ehd; fle;j 16 tUl';fshf fh';fak; Tl;Lwt[ bjhlf;f ntshz;ik Tl;Lwt[ t';fpapy;gzpahw;wp te;njd;/ ,e;epiyapy; Ke;ija eph;thfj;jpd; nghJ Vw;gl;oUe;j mrhjhuz R{H;epiy fhuzkhf 24/1/2005 njjpapy; czh;r;rp trg;gl;L vdJ ntiyia uh$pdhkhbra;tjhf fojk; bfhLj;Jtpl;nld;/ehd; uh$pdhkh fojk; bfhLj;J Rkhh; 2 Mz;L fhykhfpa[k; vdJ uh$pdhkhVw;f;fg;glhj R{H;epiyapy; vdf;F nruntz;oa epjpg;gad;fs; tH';fg;glhj epiyapYk;uh$pdhkh Vw;f;fg;glhj R{H;epiyapy; ntW epWtd';fspy; gzpapy; nru tha;g;g[fs; ,y;yhjfhuzj;jhYk; ehd; tPl;onyna Ko';fpf;fplf;Fk; R{H;epiy Vw;g;gl;lJ.Mfnt ,r;R{H;epiyapy; nkw;go gzpapy; nrUtnj vdJ thH;f;iff;Fcjtpfukhf ,Uf;Fk; vd Kot[ bra;J kPz;Lk; nkw;go ntiyia nfhu Koa[ bra;njd;/Mfnt jh';fs; vdJ kDit fdpt[ld; ghprPyid bra;J vdJ nfhhpf;ifapy; ,Uf;Fk; epahaj;ij czh;e;J vdf;F kPz;Lk; nkw;go ntiyia bfhLj;J cjtpg[hpa[khWjhH;ika[ld; nfl;Lf; bfhs;fpnwd;/”14. By no stretch of imagination, on a reading of the saidletters one can come to a conclusion that the petitioner has by thesaid letters withdrawn the earlier letter of resignation dated24.1.2005. In such circumstances, the third respondent, who is thecompetent authority who has passed the resolution accepting theletter of resignation, is well within its powers. While so, it isnot known as to why the second respondent, while considering theapplication of the petitioner under Section 153(1) of the Act, havingrecorded the finding that the petitioner has given resignation lettervoluntarily on 24.1.2005, has directed third respondent to reconsiderthe case of the petitioner. The said direction given by the secondrespondent is totally opposed to the powers conferred on the secondrespondent under Section 153(1) of the Act.15. It is only to rectify that patent defect that has beencommitted by the second respondent while exercising the revisionarypower conferred under Section 153(1) of the Act, the first respondenthas exercised the suo moto power under Section 153(1) of the Actwhich is well within his jurisdiction and passed the impugned order.In such view of the matter, the plea made by the petitioner thatadequate opportunity has not been given has no meaning at all. Bygiving adequate opportunity to the petitioner, the petitioner is notgoing to improve his case. https://hcservices.ecourts.gov.in/hcservices/

16. As per the records, the second respondent has found thatthe petitioner has given resignation voluntarily and there is nothingmore to be decided. The only point which has to be decided in thelight of the factual finding that the petitioner has given voluntaryresignation is whether the second respondent, while exercising thepowers conferred under Section 153(1) of the Act, was right indirecting the third respondent to consider the case of thepetitioner. In my considered opinion, for the foregoing reasons,the second respondent has no business to give such a direction to thethird respondent.For the reasons aforesaid, the impugned order passed by thefirst respondent by exercising the suo moto powers under Section 153(1) of the Act is in order and does not warrant interference. Thewrit petition fails and the same is dismissed. No costs.Sasi Sd/Asst. Registrar/true copy/Sub Asst.RegistrarTo:1. The Additional Registrar of Co-operative Societies (Sales, Plan and Development) Chennai – 600 005.2. The Joint Registrar of Co-operative Societies, Erode Region Erode – 638 003.3. The Special Officer Kangayam Primary Agricultural Co-operative Bank Ltd., AA 220 Kangayam – 638 701, Erode District.1 cc To Mr.N.Manoharan, Advocate, SR.624831 cc To Mr.K.V.Shanmuganathan, Advocate, SR.622921 cc To The Government Pleader, SR.62519W.P.No.1622 of 2008RSM (CO)SS (27.11.2009)