IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 08..02..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. Nos. 14928, 14929 and 14936 of 1999 M. Sivakumar .. Petitioner in W.P. No. 14928 of 1999 P. Paramasivam .. Petitioner in W.P. No. 14929 of 1999 K. Murugaiya .. Petitioner in W.P. No. 14936 of 1999 Vs. The Joint Registrar of Co-op. Societies / Revisional Authority Villupuram Region, Villupuram. .. Respondents in all W.Ps. Petitions filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records relating to the proceedings Na. Ka. 2063/97 SP dated 31.5.1999 of the respondent passed under Section 153 of the Tamil Nadu Co-op. Societies Act, 1983 and quash the same. For Petitioners : Mr. S. Venkataraman For Respondent : Mrs. Bhavani Subbaroyan, AGP COMMON ORDER Heard the arguments of Mr. S. Venkataraman, learned counsel appearing for the petitioner and Mrs. Bhavani Subbaroyan, learned Additional Government Pleader representing the respondent and perused the records. 2. The petitioner in W.P. No. 14928 and 14936 were working in the cadre of Co-operative Sub-Registrar. At the particular point of time, they were working as Special Officers of the Mottampatti Lamb Society. During their tenure as the Special officer in the said Society, one Paramasivam (petitioner in W.P. No. 14929 of 1999) was working as Secretary. Due to certain irregularities committed by the said Paramasivam, Secretary, disciplinary proceedings were initiated against the two Special Officers. At the end of the disciplinary action, it was found that the said Paramasivam was not guilty of the charges levelled against him in respect of causing loss to the Society but because of his lack of supervision and considering his service and also https://hcservices.ecourts.gov.in/hcservices/ the fact that he was kept under suspension for a period of three years, a punishment of stoppage of increment for a period two years with cumulative effect was passed against him by an order dated 10.12.1994. 3. Subsequent to the order passed against the said Paramasivam, Mr. Sivakumar, petitioner in W.P. No. 14928 of 1999 was transferred and in that place, one Murugaiah, petitioner in W.P. No. 14936 of 1999, became the Special Officer. Since the period of suspension of the Secretary Paramasivam was treated as duty, he was made eligible for payment for which, the said Murugaiah made the payment. 4. In the meanwhile, for the financial irregularities found in the Society, the Circle Deputy Registrar passed a surcharge proceedings under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 [for short, 'TNCS Act'] were initiated against the said Paramasivam. 5. The first respondent initiated suo motu proceedings against the improper conclusion of the proceedings initiated against Paramasivam, under Section 153 of the TNCS Act and notice was issued to all the three petitioners. At the end of the said proceedings, the impugned order dated 31.5.1999 came to be passed by the first respondent and he set aside the order regulating the period of suspension in favour of the said Paramasivam to be treated as one spent on leave if he was eligible for such leave and thereafter, recovery of the amounts paid by way of salary to the said Paramasivam. 6. It is against this order, the three writ petitions have been filed. The same counsel appeared for the two Special Officers as well as for Mr. Paramasivam. Such a conduct may not be proper since both the disciplinary authority as well as the charge - sheeted persons to be represented by the same counsel. Any how, it is a matter which the counsel will have to ponder over. 7. Though the writ petitions were admitted and interim stay was granted for a period of two weeks, the stay applications were dismissed by a common order dated 02.9.2003. Therefore, it is presumed that recoveries must have been ordered against the three petitioners as directed by the first respondent. Under the impugned order, it is stated that if they fail to pay the said amount, proceedings under Section 87 of the TNCS Act will be initiated against them for recovery of the amount and the disciplinary action was recommended against the two Special Officers. 8. Mr. S. Venkataraman, learned counsel appearing for the petitioners submitted that the two writ petitioners, who are https://hcservices.ecourts.gov.in/hcservices/ Special officers, were in the nature of disciplinary authorities and in exercise of their function as the Special Officer, they are entitled to pass orders on the disciplinary proceedings initiated against the said Paramasivam and in the exercise of the said statutory power, no other authority can take action against them. He also submitted that Section 153 of the TNCS Act is not intended for the said purpose and, therefore, the writ petitions are liable to be allowed. The learned counsel also pointed out that even assuming, without admitting, that Section 153 of the TNCS Act is available for a suo motu revision, yet, the two Special Officers cannot be made liable to pay the said amount. Further, he also stated that the revisional authority found that the finding of the disciplinary authority was not illegal and having affirmed the penalty imposed on the said Paramasivam, the period of suspension alone was the only issue with which the revisional authority was concerned. Even though the said Paramasivam had filed a writ petition earlier, the said writ petition was withdrawn by him and in the absence of any bye-law stipulating as to how the period of absence should be regulated, no fault can be found against the two Special Officers. 9. The learned counsel appearing for the respondents pointed out that while Mr. M. Sivakumar had passed illegally the order regulating the period of suspension and declared that the said Paramasivam is entitled for full wages, Mr. K.Murugaiah, who was the subsequent Special Officer, had implanted that order. But the action of Mr. Sivakumar cannot be condoned and it is not as if Mr. Paramasivam was found innocent by the revisional authority. Mr. Paramasivam was kept under suspension and he was paid subsistence allowance and as against the surcharge proceedings initiated against him, recovery orders were made and he had also paid the said amount and, therefore, in the absence of challenge to the surcharge proceedings, the said Paramasivam's conduct cannot be said to be unblemished. 10. After considering the rival submissions, this Court is of the view that the contention that Section 153 of the TNCS Act is not available, cannot be accepted. The very reading of the Section shows that the revisional authority can take suo motu cognizance of any order passed by his subordinates and examine and satisfy himself about the correctness, legality or propriety of the decisions. Having taken cognizance and issued notices to the petitioners, the question of lack of jurisdiction does not arise. 11. With reference to the second contention that whatever done by the two Special Officers was in their discharge of their duties and, therefore, no action can be taken also cannot be accepted. To some extent, the authorities are entitled to be protected for their independent decisions. If the order suffers from any irregularities or illegalities or lack of bonafides, certainly, the decision making authorities are liable to be hauled https://hcservices.ecourts.gov.in/hcservices/ up for their illegality in the decision making process. Therefore, the only question that can be found in favour of the two Special Officers is that the amounts paid by way of backwages over and above the subsistence allowance in favour of the said Paramasivam, if it is found out to be improper, the same will have to be recovered from the salary of the said Paramasivam and not from the two Special Officers since it was not shown that the order of payment was made due to any collusion or fraud. Since the revisional authority merely recorded a finding that it was an improper decision, the direction that the petitioners in W.P. Nos. 14928 and 14936 of 1999 should also make good the payment, should be set aside. 12. But with reference to the direction that disciplinary action should be taken against them, this Court is not interfering with the said direction because as against the said charges, the two petitioners can defend the same in an enquiry which may be held for the said purpose. This is on the footing that there is no immunity for a disciplinary authority if he passes an illegal order. 13. With reference to W.P. No. 14929 of 1999, since the revisional authority had correctly rendered a finding that the petitioner Paramasivam cannot be given wages for the entire period of suspension as his conduct was not unblemished and that he was also paid subsistence allowance during the period of suspension, it is needless to state that the authority competent to suspend an employee pending the departmental enquiry, is also competent to regulate the period of suspension and unless the record of the charge-sheeted officer is unblemished, the question of payment of full wages for the interregnum period will not arise. The revisional authority had found that the petitioner Paramasivam had been surcharged and for his conduct in lack of supervision about the loss caused to the Society, he cannot have the benefit of full wages. The finding of the revisional authority that the period will be treated as on duty and adjusted against the leave to which the petitioner Paramasivam is eligible, cannot be said to be perverse or illegal. 14. In the light of the above, W.P. Nos. 14928 and 14936 of 1999 are partly allowed and W.P. No. 14929 of 1999 is dismissed. However, there will be order order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gri https://hcservices.ecourts.gov.in/hcservices/ To The Joint Registrar of Co-op. Societies / (Revisional Authority) Villupuram Region, Villupuram. +1cc to M/s.S.Venkatraman, Advocate Sr 6610 AVM (CO) km/14.2. W.P. Nos. 14928, 14929 and 14936 of 1999 https://hcservices.ecourts.gov.in/hcservices/