Judgment · High Court · 2007

N THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.07.2007CORAMTHE HONOURABLE MR.JUSTICE V.DHANAPALANW.P.No.1602 of 2003A.Senthilnathan... Petitionervs.

The Joint Registrar of Co-operative Societies/Special Officer, Triplicane Urban Co-operative Society Ltd., 119, Big Street, Triplicane, Chennai 600 005.

The Deputy Registrar of Co-operative Societies, Kancheepuram.... RespondentsWrit Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a writ of Certiorari, calling for the recordspertaining to the order passed by the first respondent in her ProceedingsNa.Ka.No.2221/02/E2 dated 12.12.2002 and the consequential proceedingsNa.Ka.No.2221/02/E2 dated 27.12.2002 and quash the same. For Petitioner: Mr.T.SellapandianFor Respondents: Mr.P.Anbarasan, for R1Mr.A.Edwin Prabhakar, Addl. Government Pleader (W), for R2

O R D E R This writ petition is filed to quash the order of the first respondentin her Proceedings Na.Ka.No.2221/02/E2 dated 12.12.2002 and theconsequential proceedings Na.Ka.No.2221/02/E2 dated 27.12.2002.2.The case of the petitioner, in a nutshell, is as follows :(i)The petitioner having obtained a Diploma in Co-operation wasappointed as Sales Assistant on compassionate ground in February, 1999 ashis father died while working as Accountant in the Society. He was postedin the Sales Centre at Liquor Retail Shop on 21.03.2002. While so, stockverification took place at 9.00 a.m. on 01.06.2002. The petitioner hadapplied for Medical Leave for 20 days from 01.06.2002 and had extended itfor a period of 10 days. On the date when the stock verification tookplace, the petitioner was on Medical Leave. He reported for duty on01.07.2002 producing Fitness Certificate for joining duty, but the same https://hcservices.ecourts.gov.in/hcservices/ was refused by the first respondent.

Therefore, he sent the same throughCourier requesting to allow him to join duty on 07.07.2002. But, thepetitioner was placed under suspension along with two other salesmen witheffect from 18.07.2002, on the ground that during stock verification, certain charges were found. (ii)Stock verification will take place every month and the deficiencywill be brought to the notice of the concerned Salesman and the same willbe rectified. For the months of April and May 2002, shortages were foundand the petitioner was directed to pay a sum of Rs.456.34 for April 2002and Rs.31/- for May 2002, and he had also remitted the same. It is thegeneral practice that if there is any shortage, 1/3rd of the liabilitywill be fixed on the Salesmen, who were on duty. In June 2002, shortageswere found for Rs.85,375/- and 1/3rd liability was fixed on threeSalesmen, including the petitioner. The petitioner was placed undersuspension on 18.07.2002 and an order of recovery was passed on17.07.2002.

The petitioner claims that the order of suspension does notbind on him, since he was on medical leave during June 2002, thereby, heis in no way responsible for the stock deficiencies. (iii)As against the order of suspension and the consequentialorder of recovery, the petitioner filed a Writ Petition in W.P.No.37580 of2002 and this Court passed an order on 04.10.2002, directing therespondents herein to complete the disciplinary proceedings within sixmonths from the date of receipt of a copy of the order giving fair andreasonable opportunity to the petitioner and payment of subsistenceallowance to him. (iv)Enclosing a copy of the order referred to above, the petitionermade a representation to the respondents requesting to pay the subsistenceallowance for the period of suspension from 18.07.2002. The respondentsdenied to pay the subsistence allowance on the ground that as per theorder of suspension and the conditions imposed therein, the petitioner isnot supposed to leave the Headquarters, whereas he has sought subsistenceallowance from Thirukazhukundram, which is in violation of the order ofsuspension.

According to the petitioner, he had not been asked to stay atthe Headquarters. The statutory requirement is that he should getpermission before moving out of station. Even without paying subsistenceallowance, the respondents conducted domestic enquiry with reference tothe disciplinary proceedings and the Enquiry Officer submitted a report on28.11.2002, calling for an explanation as to why the petitioner should notbe removed from the post. Apprehending termination of service, the petitioner has preferred thiswrit petition seeking to set aside the impugned proceedings of the firstrespondent.

The Joint Registrar of Co-operative Societies, Chennai - 5, thefirst respondent herein filed a counter affidavit denying the averments of https://hcservices.ecourts.gov.in/hcservices/ the petitioner as totally false, as detailed hereunder: (i)The petitioner was working as a Sales Assistant in the LiquorShop at Teynampet from 22.03.2002, handling stocks, cash, etc., whereasthe other two sales staff were just attending to the sales only. But theentire stocks were under the joint custody of those three staff. In thelast working day of every month or on the next day, stock verification isdone and in that way, stock verification for May, 2002 was done by aSuperintendent from the Head Office on 01.06.2002, commencing from 9.00a.m. The petitioner and other two salesmen signed the Attendance Registeron that day. On verification, it was found that the petitioner had dupedthe Management and in the course of domestic enquiry, the petitioner hadhimself admitted that he was in the shop on 01.06.2002, till 1.00 pm.

Heard Mr.T.Sellapandian, learned Counsel for the petitioner, Mr.P.Anbarasan, learned Counsel for the first respondent and Mr.A.EdwinPrabhakar, learned Addl. Government Pleader appearing on behalf of thesecond respondent.

Learned Counsel for the petitioner has submitted that the firstrespondent has issued the impugned proceedings without even consideringthe explanation submitted by the petitioner. He has contended that theconduct of enquiry without even making payment of subsistence allowance isillegal and without any justification. It is his further contention thatthe denial of subsistence allowance as if the petitioner was asked to stayat Headquarters and he has not stayed, is illegal and would amount tototal non-application of mind. Learned counsel has further submitted thatthe petitioner has not left the Headquarters without permission andtherefore, the denial to make payment of subsistence allowance is withoutjustification. He has strenuously contended that the order of recoveryimposed on the petitioner is liable to be set aside, inasmuch as thepetitioner was on leave during the time of stock verification. He pleadedthat the respondents be directed to pay the subsistence allowance to thepetitioner from the date of suspension.

In support of his contentions, learned Counsel for the petitionerhas placed reliance on a decision reported in 2007 (1) CTC 844 in the caseof Siemens Ltd. vs. State of Maharashtra and others, wherein the Honourable Supreme Court has held as follows :"

Before this Court a counter affidavit has been filedwherein although inter alia it was contended that the said showcause notice cannot be termed as an order determining therights and obligations of the parties, it has clearly beenstated :"I say that the show cause notice dated 22.06.2005at Annexure P-2 to the Special Leave Petition indicatesthat the respondent No.2-Corporation has been deprivedof lawful recovery of Cess on the said goods importedwithin the jurisdiction of the Respondent-Corporation.I say that such evasion of Cess is in huge amounts andit is perfectly within the rights of the respondent-Corporation to call upon all the parties involved in thetransactions to arrive at the exact finding of fact. Isay that for arriving at the finding of fact with regardto the said imports there are many facts which need tobe taken into account. I say that such factual aspectsinclude : which is the party which has imported thegoods within the jurisdictional limits of therespondent-Corporation what is the nature of contractbetween the seller and the said importer of goods, isthere any mechanism used by the parties to avoid payment https://hcservices.ecourts.gov.in/hcservices/ of Cess on the said import of goods, what is the extentof Cess that is evaded as a result of such mechanism andwho ultimately can be held responsible both for thepurposes of recovery as also for the purpose ofpenalty. "7. Learned Counsel for the first respondent strongly objected to thecontentions raised by the learned Counsel for the petitioner. Hecontended that it is incorrect to state that the petitioner was on leaveduring June 2002. He submitted that the Management was ready to pay thesubsistence allowance, but the petitioner did not come forward to receiveit, after giving a certificate of stay at headquarters. It was hisfurther contention that the petitioner cannot be said to have beenprejudiced, as he had participated in the enquiry without beinghandicapped on account of it. Learned Counsel submitted that the order ofsuspension is valid in the eyes of law, since the petitioner has causedloss to the Government by way of deficit in stock and he prayed fordismissal of the writ petition.

Admittedly, the petitioner was working as a Sales Assistant inthe Liquor Shop at Teynampet. It is also an admitted fact that stockverification takes place every month and the liability to pay the deficitstock is shared amongst the salesmen, who are responsible for maintainingthe stock. It is seen from the averments of the petitioner that onearlier occasions, during stock verification, 1/3rd liability of deficitwas ordered to be recovered from him and he had paid the same. Accordingto the first respondent, stock verification has taken place on 01.06.2002and the petitioner's presence in the stock verification is confirmed byhis signature in the Attendance Register. But, the petitioner claims thathe had been on medical leave during June 2002. It is seen from thecounter of the first respondent that the other two sales staff againstwhom charges have been framed have given statements before the EnquiryOfficer about the presence of the petitioner during stock verification. In view of the above, it is clear that the petitioner was present duringthe stock verification, which took place on 01.06.2002 and the avermentthat he has caused loss to the first respondent Society by duping the Management is also confirmed.

The first respondent, in his proceedings dated 17.07.2002, hasordered that the petitioner should not leave the headquarters withoutgetting prior permission. While that be so, the petitioner has moved outof station without getting prior permission from the authority concernedand he has claimed subsistence allowance staying in Thirukazhukundram, Chengalpet Taluk. In the counter filed by the first respondent, it isclearly stated that the Management is prepared to pay the subsistenceallowance, if the petitioner furnishes a certificate of residence at Headquarters. While the first respondent has made it clear in hisimpugned proceedings that the petitioner should not leave the Headquarterswithout prior permission, the petitioner has not obeyed the condition https://hcservices.ecourts.gov.in/hcservices/ imposed therein. Unless prejudice is shown and established, mere non-payment of subsistence allowance cannot ipso facto be a ground to vitiatethe proceedings in every case and it has to be specifically pleaded andestablished as to in what way the affected employee was handicappedbecause of non-receipt of subsistence allowance as held by the HonourableSupreme Court in its decision reported in (2005) 8 SCC 211 in the case ofU.P.State Textile Corporation Ltd., vs. P.C.Chaturvedi and others. Therefore, the petitioner's claim regarding the payment of subsistenceallowance is not valid. Though the petitioner was given an opportunity tosubstantiate his claim, he had not availed the opportunity and withouteven giving an explanation to the show cause notice issued by the firstrespondent, he has approached this Court.

In view of the foregoing discussion, this Court is of theconsidered opinion that the petitioner has not effectively utilized theopportunity given to him, in spite of having caused loss to the firstrespondent Society. Since the petitioner has not complied with thecondition in the suspension order, the relief sought by him before this Court cannot be granted at this stage. However, it is open to thepetitioner to give his explanation to the show cause notice and it is uptothe first respondent to consider the same in respect of payment ofsubsistence allowance alone in case the petitioner is able to substantiatehis case by furnishing any material evidence. Accordingly, the writ petition, which is devoid of any merit fails andis dismissed with the above directions. No costs. Consequently, connected W.P.M.P.No.2018 of 2003 is closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.abeTo :1.The Joint Registrar of Co-operative Societies/Special Officer, Triplicane Urban Co-operative Society Ltd.,119, Big Street, Triplicane, Chennai 600 005. https://hcservices.ecourts.gov.in/hcservices/

2. The Deputy Registrar of Co-operative Societies, Kancheepuram.+ 1 CC To Mr. S.Mani, Advocate SR NO.44718+ 1 CC To Mr. P.Anbarasan, Advocate SR NO.44523 W.P.No.1602 of 2003gb[co]gp/18.9.