S.Karthikeyan, v. The Appellate Officer/

ORDER This writ petition filed to quash the impugned order, dated

23.10.2017 passed in Appeal No.2 of 2016 confirming the order of the 4th respondent, dated 31.07.2014 with a consequential direction to the 4th respondent to conduct enquiry afresh.

¶2The petitioner has joined in the respondent Society as Night Watchman on 10.08.1989 as Full-Time employee, thereafter, he was promoted as 'Attender' on 07.08.2012. The 4th respondent has issued a charge memo, dated

15.04.2014 for the following three allegations:

(i) allegation of dereliction of duty and cooperating for malfeasance in the 4th respondent society,

(ii) Forged the signature of the Secretary in the receipts acting contrary to the interests of the society and the general public.

(iii) In the year 2009-2010 swindled the funds of the society by giving false address for the beneficiaries under the Agricultural scheme. The petitioner has participated in the enquiry proceedings and the charges were held proved. Against the same, the petitioner has preferred an appeal to the Appellate authority, the Joint Registrar of Co-operative Societies and the punishment order was confirmed. Aggrieved over the same, the present writ petition is filed.

¶3The respondents have also filed a detailed counter stating that the Enquiry Officer has granted sufficient opportunity to the petitioner. The petitioner was granted time to peruse the material documents and the petitioner has also participated in the enquiry. The management after taking the enquiry report into consideration, has independently come to the conclusion that the charges are proved. Based on the enquiry report and the order of the original authority, the Revisional authority has considered the case of the petitioner independently and passed elaborate speaking order and confirmed the punishment of dismissal. The respondents deny the contention of the petitioner that he was not granted any duties. After promotion, specific duties and responsibilities were fixed on the petitioner. Moreover, after suspension of one Karuppiah who is the Secretary of the society, the petitioner was holding additional charge of jewel key and maintain the loan file and the petitioner had not handed over the key and file. The petitioner has committed serious misconduct and created forged documents and misappropriated the funds of Rs.4,91,395/- with connivance of Ex-Secretary Mr.Karuppiah in the year 2009-2010 for the Crop insurance disbursement claim. It is also further submitted that the said Karuppiah was also temporarily suspended from service and he is also facing a disciplinary proceeding. Therefore, the respondents prayed to dismiss the writ petition.

¶4Heard Mr. R.G.Shankar Ganesh, the Learned Counsel appearing for the petitioner, Mr. M.Lingadurai, the Learned Special Government Pleader appearing for the respondents 1 and 2 and Mr.A.K.Manikkam, the Learned Additional Government Pleader appearing for the respondents 3 and 4 and perused the material documents placed on record.

¶5The learned counsel appearing for the petitioner submitted that the respondents are biased in taking disciplinary proceedings against the petitioner alone and has raised such plea before the Revision Authority. The Revision Authority has held that the action would be taken against each individual as per their error and the same cannot be compared. The relevant portion is extracted here under: ..... "4. rq;f nrayhsh; fUg;igah njhlh;e;J jw;fhypfg; gzpePf;fj;jpy; cs;s epiyapy; kW Ma;T kDjhuhd jd; kPJ kl;Lk; xOq;F eltbf;ifapid tpiue;J Kbj;J epue;jug; gzpePf;fk; nra;ag;gl;lJ fho;g;Gzh;r;rp fhuzkhf vd;W rhl;Liuapy; kDjhuhpd; Fw;wr;rhl;Lf;F kDjhuh; ve;jnthU Mjhuj;jpidAk; mspf;ftpy;iy. xt;nthUth; kPJ xOq;F eltbf;if KbTk; mjd; jd;ikf;Nfw;g jPh;T nra;ag;gLk;. mtw;wpid xg;GNehf;fp ghpfhuk; NjLtJ rhpahdjy;y. mjpy; tYthd fhuzpfs; VJkpy;iy vd;w fhuzj;jpdhy; kDjhuhpd; ,f;Nfhhpf;if epuhfhpf;ff;jf;fJ vd;W jPh;khdpj;J epuhfhpf;fpNwd;." The findings of the Revisional authority cannot be accepted. Whenever disciplinary proceeding is initiated against erring officials, then the respondents ought to take action against all the erring officials. In the present case the disciplinary proceeding was initiated against the Ex-Secretary but the respondents are silent about the status of the enquiry against the said Ex-Secretary Karuppiah, creating suspicion of bias.

¶6The next contention of the petitioner is that he was working as Attender in the respondent society. But, the allegation against the petitioner is that he has forged the signature of the Secretary. For which, the petitioner has produced several letters, which were written by the beneficiaries. The beneficiaries had stated in the letters that the petitioner had not forged the signature of the beneficiaries but it is the Secretary who has forged the beneficiaries' signature. The Revision Authority has not considered this plea in the order at all and hence this Court is of the considered opinion that there is violation of principles of Natural Justice.

¶7Moreover, the 1st allegation against the petitioner is dereliction of duty and cooperating for malfeasance. Since the allegation against the petitioner is cooperating for the malfeasance, then the person indulged in malfeasance ought to be punishment. In the present case it is the Ex-Secretary Karuppiah, but the respondents have not conducted the enquiry against the said Karuppiah properly for the reasons best known to them. On perusing this charge this Court is of the considered opinion that the respondents are selectively taking action against the petitioner and the same is clearly hit by bias.

¶8The next contention of the petitioner is that the petitioner had submitted the revision petition along with the letter signed by the eight members of the Management Committee, wherein it is accepted by them that there was no Board meeting on 31.07.2017. The respondents have issued summons to all the members. But the respondents have recorded that three members have not appeared for enquiry inspite of the receiving summons. But the respondents failed state the status of the remaining members. Therefore, this Court is of the considered opinion that the petitioner deserves one more opportunity.

¶9The next contention of the petitioner is that the respondents have conducted 2nd enquiry under section 81. In the first report it is stated 13 beneficiaries had obtained insurance amount by forged document for a tune of Rs. 5,12,500/-, but in the 2nd report it states 11 beneficiaries had obtained insurance amount by forged document for a tune of Rs.5,04,500/-. But the respondents have punished the petitioner based on the 1st report. Infact the petitioner is not aware of 2nd enquiry at all, while conducting the 2nd enquiry the petitioner was not enquired at all. Moreover, the list of 11 beneficiaries was not served to the petitioner. The respondents are bent upon punishing the petitioner alone, but are trying to leave the Ex-Secretary, hence the petitioner prayed to remand the case back to the authorities for fresh consideration. On considering this plea and the plea stated in previous paragraphs this Court is inclined to remand the case back to the respondents.

¶10However pending writ petition, the petitioner died and his legal heirs were impleaded in this writ petition and hence now the case cannot be remanded back. Therefore, this Court is inclined to modify the punishment. At the time of filing this writ petition, the petitioner was aged about 44 years and he has long spell of service. By taking these facts into consideration this Court is modifying the punishment as Compulsory retirement, by fixing the period of service from 10.08.1989 till his date of death i.e., on 01.02.2023. The respondents are directed to modify the punishment and grant all the service benefits applicable to the deceased employee to the legal heirs.

¶11Further, it is seen that the petitioner was suspended from service on 31.07.2014, but he was not granted any subsistence allowance until his dismissal. The respondents have stated that the petitioner has not taken any steps to claim subsistence allowance. This plea of the petitioner cannot be accepted, since it is the right of the delinquent and it is the duty of the employer. The respondents ought to have disbursed subsistence allowance without demanding for a formal application. Therefore, the respondents shall pay the full salary for the said period of suspension.

¶12The above directions shall be complied within a period of six weeks, from the date of receipt of a copy of the order.

¶13The learned counsel appearing for the petitioners submitted that the petitioners are seeking compassionate appointment as well. The petitioners are directed to submit an application to the Appropriate authorities and the same shall be processed in accordance with law.

¶14For the reasons stated supra the writ petition is allowed in above terms. No cost. Connected Miscellaneous petitions are closed. Index : Yes / No

15.06.2023 Internet : Yes

ksa To

¶1The Appellate Officer / Joint Registrar of Cooperative Societies, Collector office Campus, Ramanathapuram, Ramanathapuram District.

¶2The Deputy Registrar of Cooperative Societies, Paramakudi, Ramanathapuram District.

¶3The Special Officer, A 1339, Orivayal Primary Agriculture Co-operative Bank, Ramanathapuram District.

¶4The President, A 1339,Orivayal Primary Agriculture, Co-operative Bank, Ramanathapuram District. S.SRIMATHY, J ksa W.P.(MD)No. 3694 of 2018

15.06.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15.06.2023 CORAM THE HONOURABLE MRS.JUSTICE S.SRIMATHY W.P.(MD)No. 3694 of 2018 and W.M.P(MD)Nos. 3843 & 3844 of 2018 S.Karthikeyan(Died) 1.Koorishwari 2.Madhumohan 3.Thennarasu 4.Muthu Manikam Bharathi ... Petitioners Vs. 1. The Appellate Officer / Joint Registrar of Cooperative Societies, Collector office Campus, Ramanathapuram, Ramanathapuram District. 2. The Deputy Registrar of Cooperative Societies, Paramakudi, Ramanathapuram District. 3. The Special Officer, A 1339, Orivayal Primary Agriculture Co-operative Bank, Ramanathapuram District. 4. The President, A 1339,Orivayal Primary Agriculture, Co-operative Bank, Ramanathapuram District. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, calling for the records of the 1st respondent, dated 23.10.2017 in Appeal No.2/2016(Na.Ka.886/2016/Sapa), passed in consonance with the order, dated 31.07.2014 by the 4th respondent, quash the same, as the same is arbitrary, ultra vires, contrary to the provisions of Tamil Nadu Societies Registration Act and consequentially direct the 4th respondent to conduct an enquiry afresh. For Petitioners : Mr. R.G.Shankar Ganesh For R-1 & R-2 : Mr. M.Lingadurai, Special Government Pleader For R-3 & R-4 : Mr.A.K.Manikkam