A.Jeevareethan v. The Joint Registrar of Cooperative Societies

O R D E R The petitioner has filed this writ petition seeking to call for the records relating to the impugned orders dated 22.11.2017 issued by the second respondent herein namely the President K.141, Malayandipattinam Primary Agricultural Co-operative Credit Society, Malayandipattinam Post, Pollachi, quash the same as non-est in the eye of law and the order in Revision Petition No.0825/2018 Va2 date 26.12.2018 issued by the first respondent herein namely the Joint Registrar of Cooperative Societies Coimbatore Division, Coimbatore, quash the same as non-est in the eye of law and consequently direct the first respondent herein namely the Joint Registrar of Cooperative Societies Coimbatore Divison, Coimbatore 38, to issue consequential order of reinstating the petitioner into service as Salesman in K.141, Malayandipattinam Primary Agricultural Co-operative Credit Society, Malayandipattinam Post, Pollachi with effect from 10.11.2017 AN onwards and to treat the period from 10.11.2017 AN to date of reinstatement as one of duty for all purposes with attendant, service and monetary benefits and continuity of service for the above said period with full back wages for the Page No.3 of 22 said period and to treat the period from 02.06.2015 to 31.08.2015 as one of duty for all purposes and to pay the full wages for the above said period and to treat the period from 01.09.2015 to 09.11.2017 as one of duty for all purposes and to pay the full wages for the above said period and also pay wages for the month of May 2015, within a short date that may be fixed by this Hon'ble Court and for payment of costs to the petitioner herein by the second and third respondents herein.

¶2Learned counsel for the petitioner submitted that the petitioner was appointed as Salesman in the services of the second respondent/society viz., K.141, Malayandipattinam Primary Agricultural Co-operative Credit Society, Malayandipattinam Post, Pollachi from the year 1991 onwards and he has been discharging his duties to the utmost satisfaction of his superior officers and the general public without giving any room for any complaint, whatsoever from any quarters, till the date of his dismissal from service. Thus, his appointment with the second respondent society is a regular appointment. Page No.4 of 22

¶3Learned counsel for the petitioner would further submit that the petitioner has put in a total qualifying unblemished service of 26 years right from 03.05.1991 to till the date of dismissal from service that is on

22.11.2017. By letter dated 02.06.2015 submitted before the second respondent, the petitioner has prayed for grant of leave from 02.06.2015 to

30.08.2015 on medical grounds that he was suffering from the ailment of diabetics, which was so severe for him and the said letter was returned with the endorsement "refused". In this regard, the petitioner has also submitted a representation dated 22.06.2015 to the Hon'ble Chief Minister's cell.

¶4Learned counsel for the petitioner would further contend that on

31.07.2015, the second respondent had sent a letter asking the petitioner to come and join duty immediately, within a period of seven days from the date of receipt of the said letter. Hence, the petitioner went two times and met the Secretary (In charge) Tmt.Manonmani and on account of political interference, she has not permitted the petitioner to report and join duty. Though, the petitioner has sent representations to join duty as Salesman, the same was not considered and disposed of. Page No.5 of 22

¶5Learned counsel for the petitioner would further contend that the second respondent issued a letter dated 25.09.2015 to the petitioner stating that in spite of the letter sent, the petitioner was not reporting for duty and it caused disruption in the public distribution system and spoiled the name and reputation of the society and also other unwanted allegations against the petitioner. In reply to the said letter, the petitioner sent a reply letter dated

07.10.2015, denying all the allegations made against him. This being so, the second respondent has not paid the salary payable to the petitioner for the month of May 2015 and in order to treat the said period as duty period, the petitioner had filed a Revision petition dated 09.09.2016 before the first respondent. However, no order was passed.

¶6Learned counsel for the petitioner would further submit that by letter dated 27.09.2016 issued by the first respondent, the petitioner was directed to pay a sum of Rs.160/- towards necessary charges and fees for processing the Revision Petition and the same was paid by the petitioner. Since, no order was passed, the petitioner has preferred a Writ Petition in W.P.No.615 of Page No.6 of 22 2017, before this Court seeking direction to the first respondent herein to consider the revision petition dated 09.09.2016 and the same was disposed of by this Court on 09.01.2017. Subsequent to the same, the first respondent has passed an order in revision petition on 07.09.2017. Thereafter, the petitioner was informed to produce the medical certificates within 7 days and the same was sent to the second respondent on 31.10.2017. Moreover, the petitioner prayed to disburse the pay for the period 01.06.2015 to 31.08.2015 and from

01.09.2015 to 07.09.2017.

6.1. This being so, the petitioner has sent a representation dated

07.11.2017 to the second respondent to point out the lacuna in the proceedings and to take decision in the Board meeting regarding his grievance. However, in the Board Meeting, the members of the society has decided to take action against the petitioner on account of non-reporting for duty and the same was published in many Tamil Dailies as the petitioner was issued with a punishment of dismissal from service from 10.11.2017 A.N. Subsequently, by order dated 22.11.2017, the petitioner was issued with the Page No.7 of 22 said punishment of dismissal from service from 10.11.2017 A.N.

¶7Learned counsel for the petitioner further contended that on receipt of the said dismissal, the petitioner has preferred a revision petition dated

20.01.2018, before the District Assistant Registrar of Co-operative Societies, Coimbatore Division, Coimbatore to set aside the order of dismissal dated

22.11.2017 and to direct the respondent to reinstate the petitioner into service as a Salesman in the second respondent/society, but, no order was passed. Hence, the petitioner has filed a writ petition in W.P.No.14277 of 2018 before this Court seeking direction to consider and dispose of the revision petition. This Court by its order dated 13.06.2018, directed the competent authority to dispose of the same. Thereafter, by order dated 26.12.2018, the first respondent rejected the revision petition. Hence, the petitioner has come forward with the present writ petition.

¶8Learned Government Advocate appearing for the respondent has filed a counter affidavit dated 07.12.2020 and submitted that the petitioner vide his letter dated 02.06.2015 prayed to grant leave from 02.06.2015 to Page No.8 of 22

30.08.2015 on medical grounds but failed to enclose the Medical Certificate. Though the second respondent/society instructed the petitioner to rejoin duty vide its letter dated 25.09.2015 and 25.10.2015, the petitioner has not turned down. The petitioner was absent/staying away from duty with effect from

01.09.2015. The petitioner in his letter dated 18.02.2018 has stated that while attempting to join duty on 20.09.2017, the second respondent negative his request with instruction only by producing Certificate from Medical Board, the petitioner will be allowed to join.

¶9Learned Government Advocate appearing for the respondents further submitted that the petitioner stayed away from duty with effect from

01.09.2015 to 07.09.2017 for the total period of 737 days and in the Revision Petition filed by the petitioner, the first respondent, in his order dated

07.09.2017 ordered that if the petitioner furnished Medical Certifcate then the absence of duty may be treated based on the availability of leave. Further, it has directed the second respondent/society to take action against the petitioner for staying away from duty without proper permission. In pursuance of the order dated 07.09.2017, the second respondent/society has Page No.9 of 22 instructed the petitioner vide letter dated 20.09.2017, 20.10.2017 and

02.11.2017. Hence, the petitioner came to join duty on 25.09.2017 but failed to produce neither the Medical Certificate nor explanation for stayed away from duty and gone.

¶10Learned Government Advocate appearing for the respondent contended that in the General Body Meeting, which was held on 10.11.2017, it was unanimously resolved to dismiss the petitioner from service of the Society with effect from 10.11.2017 and the same was published in the "Dinathanthi Newspaper" on 16.11.2017. Aggrieved by the dismissal order of the second respondent, the petitioner filed Revision Petition dated

20.01.2018 under Section 153 of the Tamil Nadu Co-operative Societies Act, 1983 . Subsequently, the petitioner has filed writ petition in W.P.No.14277 of 2018 to consider the revision petition. Based on the order of this Court dated 13.06.2018, the first respondent passed an order in Revision Petition No.0825/2018 Ve 2. dated 26.12.2018 confirming the impugned order of dismissal. Page No.10 of 22

¶11Learned Government Advocate appearing for the respondents further contended that the in view of the legal principles settled by the Larger Bench, Clause (vii) of Paragraph21 of the judgment (Full Bench Judgment of this Court, which was reported in 2006 (4) CTC 689 of Marappan case) and in the absence of any exceptional circumstances, the Court will not ordinarily entertain any writ petition under Article 226 of the Constitution of India, when the Act provides for an alternative remedy. In this case, even though the petitioner has preferred a Revision Petition under Section 153 of the Tamil Nadu Co-operative Societies Act, 1983, he has not challenged the order passed by the first respondent dated 26.12.2018 by way of filing Review Petition under section 154 of the Tamil Nadu Co-operative Societies Act, 1983. Thus, this Court need not entertain the writ petition under Article 226 of the Constitution of India.

¶12Learned Government Advocate appearing for the respondents further submitted that the case on hand has to be addressed to the Competent Authority viz., Regional Joint Registrar of Co-operative Society, Coimbatore Region, Coimbatore District by way of filing Review Petition under Section Page No.11 of 22 154 of the Tamil Nadu Co-operative Societies Act, 1983 or by filing Revision Petition before the Government (Additional Secretary to Govt. Co-operation, Food and Consumer Protection Dept.) under Section 153 of the Tamil Nadu Co-operative Societies, Act, 1983. In the present case on hand, the petitioner has preferred Revision Petition before the first respondent under Section 153 of the aforesaid Act, however, challenging the order dated

26.12.2018, the petitioner has not preferred any Review Petition under Section 154 of the aforesaid Act.

¶13Learned counsel appearing for the second respondent has also filed a counter affidavit dated 16.07.2023, wherein, it is stated that the dispute arising out of service matter relating to employees of Co-operative Societies, being the disputes between master and servants will have to be resolved under the Industrial Disputes Act or under the provision of Tamil Nadu Co-operative Societies Act, 1983. The petitioner has not availed the statutory remedy by way of filing Review Petition under Section 154 of the Tamil Nadu Co-operative Societies Act, 1983 before the Joint Registrar of Co-operative Societies, Coimbatore Region, Coimbatore District. Page No.12 of 22

¶14Heard the learned counsel on either side and perused the materials available on record.

¶15In this case, the petitioner by his letter dated 02.06.2015 submitted a letter before the second respondent for grant of leave from 02.06.2015 to

30.08.2015 on medical grounds but failed to enclose the medical certificate. The petitioner was absent and staying away from duty with effect from 01.09.2015. Though the petitioner was instructed to join duty vide letter dated 25.09.2015 and 25.10.2015 by the second respondent, the petitioner failed to join duty.

¶16It is pertinent to note that the petitioner has sent a letter dated

07.10.2015 to the second respondent stating that he has received a letter issued by the second respondent dated 25.09.2015 and he is ready to join duty in the second respondent/society. Moreover, in this case, the medical certificate was not submitted by the petitioner and there is no detail regarding the submission of the same during the enquiry proceeding and Page No.13 of 22 it is clear that the petitioner has applied for medical leave for the period from 02.06.2015 to 31.08.2015, but he has filed to submit the medical certificates.

¶17Thereafter, the second respondent issued a letter dated 31.07.2015,

25.09.2015 and 25.10.2015 to the petitioner, asking him to join duty but there was no reply from the petitioner. Hence, the petitioner was on unauthorized absence without furnishing any information from 01.09.2015. In view of the continuous absence, the petitioner was dismissed from service by the first respondent vide order dated 22.11.2017. Challenging the same, the petitioner has preferred a Revision Petition and the same was dismissed on 26.12.2018. At this juncture, it is pertinent to extract the relevant portions of the said order hereunder: vGtpdh?1f;fhd jPh;t[ rPuha;t[ kDjhuh; jdf;F cly;epiy rhpapy;yhj fhuzj;jhy; 02/06/2015 Kjy; 31/08/2015 tiu kUj;Jt tpLg;g[ nfhhp r';fj;jiyth;-vjph;kDjhuUf;F 02/06/2015 ehspl;l fojk; K:yk; nfhhpa[s;shh;/ Mdhy;. kUj;Jt tpLg;g[f;fhd kUj;Jtr; rhd;wpjiH gpd;dh; rkh;g;gpg;gjhf bjhptpj;Js;shh;/ Mdhy;. kUj;Jt rhd;wpjH; Page No.14 of 22 W.P.No.12528oofo2020 rkhg; ;gpj;j tptuk; vJt[k; tprhuizapy; bjhptpf;fg;gltpy;iy/ vdnt. jdJ kUj;Jt tpLg;g[ Fwpj;J eph;thfj;jpw;F vGj;J K:ykhf jfty; tH';fg;gl;ljhf fUJtijj; jtpu Kiwahf tpz;zg;gk; rkh;g;gpf;ftpy;iy vd;W vGtpdh jPh;t[ bra;ag;gLfpwJ/ vGtpdh?2f;fhd jPh;t[ kDjhuh; 02/06/2015 Kjy; 31/08/2015 Koa kUj;Jt tpLg;g[ nfhhp jdJ 02/06/2015 ehspl;l fjk; K:yk; tpz;zg;gpj;Js;shh;/ ,Ug;gpDk; mjw;fhd kUj;Jtr; rh;dpwjHpid ,izf;fhky; fojk; kl;Lk; vjph;kDjhuh; eph;thfj;jpw;F mDg;gpa[s;shh;/ ,jidj; bjhlh;e;J vjph;kDjhuh; 31/07/2015. 25/09/2015 kw;Wk; 26/10/2015 Mfpa njjpfspy; kDjhuiu gzpapy; nru mwpt[Wj;jp gjptr;ry; K:yk; fojk; mDgg; pa[s;shh; mtw;wpw;F vt;tpj gjpnyh tpsf;fnkh kDjhuuhy; vjph;kDjhuUf;F rkh;g;gpf;fg;gltpy;iy/ vdnt. kDjhuh; 01/09/2015 Kjy; vt;tpj jftYk; ,y;yhky; gzpf;F tuhky; ,Ue;Js;shh; vd;W vGtpdh 2?f;F jPh;t[ fhzg;gLfpwJ/ ovGtpdh?3f;fhd jPh;t[ kDjhuh; 02/06/2015 Kjy; 31/08/2015 Koa kUj;Jt tpLg;g[ tpz;zg;gpj;jijj; bjhlh;e;J tpLg;g[ Koe;j gpd;g[ gzpapy; nru 20/09/2017 md;W brd;w nghJ kUj;Jt Fgtpd; mwpf;if ,Ue;jhy; PageoNo.15oofo22 kl;Lnk gzpapy; nru mDkjpf;f Koa[k; vd vjph; kDjhuuhfpa r';fj;jiyth; mtiu gzpapy; nru kWj;Jtpl;ljhf jdJ 18/02/2018 ehspl;l kDtpy; Fwpg;gpl;Ls;shh;/ kDjhuh; 31/08/2015 md;W jdJ kUj;Jt tpLg;g[ Koe;j cld; gzpapy; nru vt;tpj Kaw;rpa[k; nkw;bfhz;lhuh vd;gJ Fwpj;J rPuha;tpy; bjhptpf;ftpy;iy/ mJ Fwpj;j Mtz';fs; vjida[k; rkh;g;gpf;ftpy;iy/ jdJ 20/01/2018 ehspl;L ,izg;gjpthsUf;F tH';fpa kDtpy; gf;fk; 5?y; "22. Sanction of Leave" vd;w jiyg;gpd fPH; tpLg;g[ bjhlh;ghd r';f Jiztpjpfis Fwpg;gpl;Ls;ssh;/ mjpy; t/vz/1 Kjy; 5 tiu cs;s Jiztpjpfs; gpd;tUkhW/ "1. Leave shall ordinarily be applied for and sanction obtained in advance.

¶2No employee shall claim leave as a matter of right except the leave eligible under the Act.

¶3Every application for medical leave shall ordinarily be accompanied by a Medical Certificate from a Civil Assistant Surgeon and in exceptional cases, Medical Certificate can be given within a 3 days from the date of commencement of leave. Page No.16 of 22

¶4In case of other leave applied on the basis of illness, medical certificate shall be produced if required within twenty four hours of such requisition.

¶5It shall be competent to the society to refer the employee to a Civil Surgeon in the Tamil Nadu Government Medical Services or to the Medical Board, if so desired. Such a reference to Civil Surgeon or Medical Board shall be made, if the total period of medical leave exceeds sixty days. When the society makes such a reference, it shall be the duty of the employee concerned to appear before the Civil Surgeon or the Medical Board, as the case may be, at this own cost on the date, time and place as may be specified by the Civil Surgeon or the Medical Board, without fail."

¶18In the instant case, the issue to be decided is to be decided whether the petitioner's unauthorized absence was wilful or not. Though the petitioner has applied for Medical Leave for the period from

02.06.2015 to 31.08.2015, he has not produced any Medical Certificate as per the by law of the second respondent/society. From the impugned order passed by the first respondent, it is clear and evident that the Page No.17 of 22 petitioner has not submitted any documents or evidence to substantiate his claim that he was not on unauthorized absence for the aforesaid period.

¶19In the impugned order, it is mentioned that the petitioner gave assurance to the second respondent that the Medical Certificates will be submitted afterwards but despite his assurance, he has not submitted the same before the second respondent. In the absence of Medical Certificate, it is evident that the petitioner was not suffering from any ailment and for which 737 days of leave is unnecessary. Furthermore, the second respondent/society instructed the petitioner to join duty vide letter dated

25.09.2015 and 25.10.2015, but the petitioner came to join only on

25.09.2017 and failed to produce Medical Certificate nor any explanation having stayed away from duty and gone.

¶20The petitioner has not entitled for the relief sought for in the present writ petition for the following reasons:

(i) The petitioner was on unauthorized absence for the period from Page No.18 of 22

02.06.2015 to 30.08.2015. Even though, he has applied leave on medical ground, he has not submitted any medical certificate, despite his assurance to submit the same later on to the second respondent.

(ii) Though the second respondent instructed the petitioner to submit the medical certificate on the date of joining, the petitioner has failed to produce the same, while he reported for duty on 25.09.2017.

(iii) The petitioner has not furnished the details of the ailment, which he was suffering from and for which, he was on unauthorized absence from

01.09.2015 to 07.09.2017 for a total period of 737 days.

(iv) Despite several reminders were given to the petitioner for submitting the medical certificate, the petitioner has failed to submit the same.

(v) The petitioner has failed to exhaust the remedy available under Section 154 of the Tamil Nadu Co-operative Societies Act, 1983 by preferring Review Petition before the Regional Joint Registrar of the Co-operative Society and directly approached this Court by way of filing this writ petition under Article 226 of Constitution of India. Page No.19 of 22

¶21In view of the factual matrix of the case and for the foregoing reasons, this Court is not inclined to interfere with the orders passed by the respondents 1 & 2 dated 22.11.2017 and 26.12.2018 and the same is hereby confirmed.

¶22In the result, this writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.

29.09.2023 vm

Index : Speaking Order : To:

1.The Joint Registrar of Cooperative Societies, Page No.20 of 22 Coimbatore Division, Coimbatore – 38.

2.The President, K.141, Malayandipattinam Primary Agricultural Co-operative Credit Society, Malayandipattinam Post, Pollachi – 642 114.

3.Manonmani, Secretary (In-charge) K.141, Malayandipattinam Primary Agricultural Co-operative Credit Society, Malayandipattinam Post, Pollachi – 642 114. J.SATHYA NARAYANA PRASAD,J. vm Page No.21 of 22

29.09.2023 Page No.22 of 22

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.09.2023 CORAM : THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD Writ Petition No.12528 of 2020 and W.M.P.No.15437 of 2020 A.Jeevareethan ... Petitioner Vs. 1.The Joint Registrar of Cooperative Societies, Coimbatore Division, Coimbatore – 38. 2.The President, K.141, Malayandipattinam Primary Agricultural Co-operative Credit Society, Malayandipattinam Post, Pollachi – 642 114. 3.Manonmani, Secretary (In-charge) K.141, Malayandipattinam Primary Agricultural Co-operative Credit Society, Malayandipattinam Post, Pollachi – 642 114. … Respondents Writ Petition filed under Article 226 of Constitution of India, praying for issuance of Writ of Certiorarified Mandamus calling for the records relating to the impugned orders dated 22.11.2017 issued by the second respondent herein namely the President K.141, Malayandipattinam Primary Agricultural Co-operative Credit Society, Malayandipattinam Post, Pollachi, Page No.1 of 22 quash the same as non-est in the eye of law and the order in Revision Petition No.0825/2018 Va2 date 26.12.2018 issued by the first respondent herein namely the Joint Registrar of Cooperative Societies Coimbatore Division, Coimbatore, quash the same as non-est in the eye of law and consequently direct the first respondent herein namely the Joint Registrar of Cooperative Societies Coimbatore Divison, Coimbatore 38, to issue consequential order of reinstating the petitioner into service as Salesman in K.141, Malayandipattinam Primary Agricultural Co-operative Credit Society, Malayandipattinam Post, Pollachi with effect from 10.11.2017 AN onwards and to treat the period from 10.11.2017 AN to date of reinstatement as one of duty for all purposes with attendant, service and monetary benefits and continuity of service for the above said period with full back wages for the said period and to treat the period from 02.06.2015 to 31.08.2015 as one of duty for all purposes and to pay the full wages for the above said period and to treat the period from 01.09.2015 to 09.11.2017 as one of duty for all purposes and to pay the full wages for the above said period and also pay wages for the month of May 2015, within a short date that may be fixed by this Hon'ble Court and for payment of costs to the petitioner herein by the second and third respondents herein. For Petitioner : Mr.K.S.Govinda Prasad For Respondent 1 : Mr.K.Tamil Vendan, Government Advocate For Respondent 2 : Mr.L.P.Shanmugasundaram Page No.2 of 22 For Respondent 3 : No Appearance