IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 19-10-2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.16094 OF 2007 AND M.P.NOS.1 AND 2 OF 2007 D.A.Mohamed Khan ... Petitioner Versus 1.The Commissioner Milk Production & Dairy Development Department Madavaram Milk Colony Chennai – 600 051 2.The Managing Director Tamil Nadu Cooperative Milk Producers Federation Limited Madavaram Milk Colony Chennai – 600 051 3.The Managing Director Nilgiri District Cooperative Milk Producers Union Limited, Ooty-1 4.The Managing Director Dharmapuri District Cooperative Milk Producers Union Limited Krishnagiri-1. 5.The Managing Director, Coimbatore District Cooperative Milk Producers Union Limited Coimbatore-10. .. Respondents For Petitioner :: Mr.R.Muthukumarasamy, Sr.Counsel for Mr.K.Desingh For Respondents :: Mr.P.Narayanamoorthy for RR.2 and 5 Mr.G.Muniratnam for R.3 Ms.S.Anitha for R.4 https://hcservices.ecourts.gov.in/hcservices/ Prayer: This Writ Petition is filed under Article 226 of The Constitution of India for the relief of issuance of a writ of certiorarified mandamus to call for the records pertaining to the proceedings Ref.No.27836/Pers.& Estt-1/2005 dated 30.6.2006 issued by the 2nd Respondent and quash the condition stipulated in 2nd Para therein and consequently directing the 2nd, 5th and 3rd respondents to settle the retiral benefits of gratuity, encashment of earned leave, unearned leave on private affairs at his credit as on 30.06.2006, and the TCMPF employees special superannuation fund and the death-cum- retirement benefit of Nilgiri District milk Union respectively with penal interest, costs and adequate compensation. ORDER Heard the learned Senior Counsel for the petitioner and the learned counsel appearing for the respondents, who have also filed the counter affidavit. 2. The Writ Petitioner, who was appointed originally as Extension Supervisor in the erstwhile Tamil Nadu Dairy Development Corporation Limited in 1978, was subsequently promoted as Deputy Manager (Administration) in 1995. After holding various posts he was given assignment in the Tamil Nadu Cooperative Milk Producers Federation Limited, he has retired from service on attainment of superannuation on 30.6.2006. While holding the re-designated post as Selection Grade Assistant General Manager (Administration), the petitioner was placed under suspension, which was set aside by this Court by order dated 16.2.2006 made in W.P.No.38830 of 2005 filed by him. However, the second respondent has issued order dated 30.6.2006 withholding the terminal benefits payable to the petitioner till the audit objections pending against him in Tiruchi, Nilgiris and Dharmapuri District Cooperative Producers Unions Limited are settled. It is the case of the petitioner that there was no charge framed against him and no memo has been issued during his service and therefore the detainment of the terminal benefits on the said flimsy ground is illegal. It is his case that he was not involved in any of the instances stated to have taken place in Tiruchi, Nilgiris and Dharmapuri District Cooperative Milk Producers Unions Limited. In respect of Dharmapuri District Cooperative Milk Producers Union, which is the 4th respondent, it is stated that just one month before the date of retirement, the petitioner was informed about certain time barred audit objections stated to have been pending and that was replied by the petitioner immediately and the audit objections were relating to the period 1984-85, which were communicated in the year 2001-2002 and the same were settled during 2003 itself. Therefore, in respect of the objections of the year 1984-85 and even previous periods, there was no communication and raising of the said objection at the time of retirement of the petitioner after the lapse of seventeen years is not permissible and the same is against the provisions of Tamil Nadu Cooperative Societies Act and the Rules made https://hcservices.ecourts.gov.in/hcservices/ thereunder, especially relating to the surcharge proceedings. In respect of audit objections of the Nilgiris District Cooperative Milk Producers Union Limited viz., - the 3rd respondent, there has been a purported proceedings in respect of 1995-96 and 1996-97 and about this there has been no communication before the date of his retirement and therefore that is also barred by limitation since it is more than ten years. Regarding Tiruchi District Cooperative Milk Producers Union also, which relates to the year 1998-99, there was no communication earlier except just before the date of retirement and that is also barred by a long lapse of 8 years. Therefore it is the case of the petitioner that after completion of 28 years of service, the action of the 2nd and 5th respondents in withholding the amount is a harassment. With the above said grounds, the petitioner has filed the writ petition challenging the proceedings of the 2nd respondent dated 30.6.2006, especially, relating to the withholding of the terminal benefits of the petitioner till audit objections pending against him at Tiruchi, Niligiris and Dharmapuri District Cooperative Milk Producers Union Limited are settled and also for consequential direction to respondents No.2, 3 and 5 to settle the retiral benefits of gratuity, encashment of earned leave, unearned leave on private affairs at his credit as on 30.06.2006, and the TCMPF employees special superannuation fund and the death-cum-retirement benefit of Nilgiri District milk Union respectively with penal interest. 3. The respondents have filed the counter affidavit. The learned counsel for the 2nd respondent, who is the authority under whose control the other respondents are functioning, would submit that in respect of the Nilgiris District Cooperative Milk Producers Union, there is no proceedings pending against the petitioner and therefore the 3rd respondent has no objection. In the letter dated 29.3.2006, the third respondent has stated that other than the proceedings dated 7.11.2005, no other disciplinary proceedings are pending against the petitioner and no audit objection is pending. Likewise, in respect of Dharmapuri District Cooperative Producers Union Limited viz., the 4th respondent, learned counsel appearing for the 4th respondent would also fairly submit that the pendency of the proceedings have been cleared and there is no objection on the side of the 4th respondent also. That is also the case in respect of 5th respondent. As far as the 1st respondent is concerned, admittedly, the 1st respondent has no role in respect of audit objection. It is also not in dispute that there has not been any proceedings initiated against the petitioner before the attainment of superannuation either under Section 87 of the Cooperative Societies Act for surcharge proceedings or any disciplinary proceedings have either been initiated or pending against him and in fact the earlier writ petition filed by the petitioner in W.P.No.38830 of 2005, by order dated 16.2.2006, this Court while setting aside the order of suspension passed against him on 23.11.2005 has held that on the facts and circumstances of the case, the way in which the petitioner has been dealt with by the https://hcservices.ecourts.gov.in/hcservices/ superior officers shows that it is a case of sheer harassment and directed that such harassment shall not be continued holding that initiation of disciplinary proceedings and serving charge memo at that stage would amount to further harassment since the petitioner was at the fag end of his retirement. 4. On the above said factual matrix, it has been brought to the notice of this Court by all the respective counsel appearing for respondents 3 to 5 and it is clear that as on date, there are no proceedings pending against the petitioner under the Tamil Nadu Cooperative Societies Act either under surcharge proceedings and even otherwise there was absolutely no impediment on the part of the second respondent in releasing the retirement benefits due to the petitioner. 5. In N.KUNNAI GOWDER VS. THE COIMBATORE DISTRICT CDO.OPERATIVE MILK PRODUCERS' UNION LIMITED, PACHAPALAYAM PERUR AND OTHERS, (2007 (5) CTC 491), a Division Bench of this Court, while referring to the provisions of the Tamil Nadu Cooperative Societies Act, has held that in the absence of any enabling provision under the Tamil Nadu Cooperative Societies Act and Rules framed thereunder, reserving the right of employer to continue the disciplinary proceedings even after the employee attains superannuation, no disciplinary proceedings can be either initiated or continued and such proceedings were totally illegal and without jurisdiction. The relevant portion of the judgment reads as under: "6. A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceeding is kept pending by the employer, the employee cannot be made to retire. In the instant case, no rule has been brought to our notice providing for continuation of such proceeding despite permitting the employee concerned to retire. There has to be a specific provision of law or regulation or a by-law governing the service conditions of the person in question for continuing a departmental enquiry, initiated before the date of superannuation, even after the employee had retired from service. Without such a provision being available, there cannot be an employer-employee relationship surviving after the employee retires from service. Therefore, continuing the enquiry proceedings or conducting an action against the person after his retirement from service cannot be sustained in the eye of law." 6. Applying the above dictum laid down by the Division Bench and also on the facts, which have been elicited above, which shows in categoric terms that no disciplinary proceedings are pending against the petitioner, the impugned order dated 30.6.2006 stands set aside with direction to the 2nd Respondent to release all the retiral benefits including the gratuity encashment of leave salary etc., due https://hcservices.ecourts.gov.in/hcservices/ to the petitioner along with interest at the rate of 9 percent per annum from the date of filing of the writ petition till the payment and the said amount shall be paid within a period of eight weeks from the date of receipt of copy of this order. The Writ Petition is ordered accordingly. No costs. Consequently, the connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar usk To 1.The Commissioner Milk Production & Dairy Development Department Madavaram Milk Colony Chennai – 600 051 2.The Managing Director Tamil Nadu Cooperative Milk Producers Federation Limited Madavaram Milk Colony Chennai – 600 051 3.The Managing Director Nilgiri District Cooperative Milk Producers Union Limited, Ooty-1 4.The Managing Director Dharmapuri District Cooperative Milk Producers Union Limited Krishnagiri-1. 5.The Managing Director, Coimbatore District Cooperative Milk Producers Union Limited Coimbatore-10. 1 cc To Mr..G.Muniratnam, Advocate, SR.75051 1 cc To Mr.P.Narayanamoorthy , Advocate, SR.75109 1 cc To Mr.S.Anitha, Advocate, SR.75952 1 cc To The Government Pleader, SR.75294 W.P.NO.16094 OF 2007 nsm(co) pmk.26.10.2010 https://hcservices.ecourts.gov.in/hcservices/