IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.08.2011 CORAM: THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN Writ Appeal No.907/2010 P.Thangavel ... Appellant/Petitioner versus 1.The Chairman, Common Cadre Committee/ Joint Registrar of Cooperative Societies, Namakkal Region, Namakkal. 2.The Special Officer, S-1067, Jamil Ellampalli Primary Agricultural Cooperative Bank Ltd., Paramathi Velur Taluk, Namakkal District. ... Respondents/Respondents Writ Appeal filed against the common order dated 11.12.2009 made in W.P.No.1147/2009 by this Court. Presented under article 226 of the constitution of India to issue a writ of certiorari calling for the records of the Ist respondent in Na.Ka.No.1617/2008, PACB, dated 9.9.2008, and his consequential order in Na.Ka.No.1617/2008, PACB, dated 23.12.2008 and to quash the same. For appellant : Mr.M.S.Palanisamy For Respondents : Mr.R.Ravichandran, Additional Government Pleader Mr.M.R.Jothimanian, for R-2 JUDGMENT (made by D.MURUGESAN, J.) This writ appeal is directed against the order of this Court dated 11.12.2009 dismissing the Writ Petition in W.P.No.1147/2009 filed by the appellant herein. The Writ Petition came to be filed questioning the order of the Chairman, Common Cadre Committee/Joint Registrar of Cooperative Society, Namakkal, dated 09.09.2008 and the consequential order dated 23.12.2008 relating to the charge memo issued to the appellant. https://hcservices.ecourts.gov.in/hcservices/ 2. The appellant was employed in the second respondent - S-1067, Jamin Ellampalli Primary Agricultural Cooperative Bank Ltd., initially as Clerk, and later promoted as Secretary in the year 1987. By the order of the Special Officer of the Society dated 25.08.2004, the appellant was suspended from service and as many as six charges were framed against him. The explanation offered by the appellant was found to be unsatisfactory. Hence an enquiry was ordered. The appellant participated in the enquiry and ultimately, the Enquiry Officer submitted his report on 19.12.2005. Based on the enquiry report, the appellant was issued with a show cause notice dated 02.05.2007 and the appellant also submitted his explanation. Finally, the appellant was found guilty of the charges and by order dated 23.06.2007, he was dismissed from service. 3.The appellant questioned the said order of dismissal by filing Writ Petition in W.P.No.32697/2007 and the said Writ Petition was dismissed by this Court by order dated 23.06.2007. Aggrieved by the said order of dismissal, the appellant preferred W.A.No.1521/2007 and the same was allowed by Judgment dated 14.12.2007, directing the second Respondent society to reinstate the appellant in service with liberty to the Competent Authority to initiate disciplinary action against the appellant. Before the enquiry could commence as directed by the Division Bench, the appellant was allowed to retire from service on 30.06.2007. Subsequently, by proceedings dated 30.03.2009, Joint Registrar of Cooperative Societies, Namakkal, sought for an explanation from the appellant based on the Enquiry Officer's Report dated 09.03.2009. 4.The appellant questioned the charge memo dated 09.09.2008 by filing W.P.No.1147/2009 on the ground that after the abolition of the post of Common Cadre Authority vide Government Order in G.O.Ms.No.122 Cooperative Food and Consumer Protection Department dated 04.07.2008, the said Authority did not have jurisdiction to proceed with the enquiry. Secondly, as the order of termination was set aside and the appellant was directed to be reinstated in service by this Court vide its Judgment dated 14.12.2007, the entire proceeding is deemed to have been set aside and there was no enquiry pending thereafter, till such time the impugned charge memo dated 09.09.2008 was issued. The said challenge did not find favour with the learned single Judge and for that view, the Writ Petition was dismissed. It is against this order, the present writ appeal is filed. 5.In this writ appeal, the following two questions arise for our consideration viz., (i) Whether the Society is justified in continuing with the proceedings, even after allowing the Secretary to retire from service and in the absence of any Rule permitting the society to do so ? (ii) Whether after the Common Cadre Authority was abolished vide G.O.Ms.No.122 Cooperative Food and Consumer Protection Department dated 04.07.2008, the said Authority could issue charge memo ? https://hcservices.ecourts.gov.in/hcservices/ 6.We have heard Mr.M.S.Palanisamy, learned Counsel for the appellant, Mr.R.Ravichandran, learned Additional Government Pleader for the first Respondent and Mr.Jothimanian, learned Counsel for the second respondent society. 7.As far as the first question is concerned, admittedly, there is no Rule empowering the Special Officer to continue the proceedings against the Secretary, after the Secretary was allowed to retire though reserving rights to proceed with the enquiry. Mr.Jothimanian, learned Counsel for the Society, submitted that the power of the society to proceed with the disciplinary proceedings was considered by the Division Bench of this Court in the Judgment reported in Registrar of Cooperative Societies, Kilpauk and another vs. G.Manoharan, [2010(2) CTC 234] and the Division Bench had observed that in case of serious misconduct, proceedings could be initiated. That Judgment was rendered following the Judgment of the Supreme Court reported in 2008 (2) SCC 41, U.P. State Sugar Corporation Ltd., vs. Kamal Swaroop Tandon. 8.We have gone through the Judgment in G.Manoharan's case. That was a case where surcharge proceedings under Section 87 of the Tamil Nadu Cooperative Societies Act was questioned. While placing reliance on the Judgment of the Apex Court in U.P. State Sugar Corporation Ltd. case, the Division Bench had, of course, observed in paragraph 33 that even if a person had retired, if it was proved that he had caused loss to the establishment, then proceedings can be initiated to recover the amount of loss from him. This direction, would, in our opinion, entitle the society to proceed further under surcharge proceedings. In the very same Judgment in paragraph 33(d), the Division Bench had directed that "no order shall be passed permitting him to retire; on the contrary, he was suspended on the eve of his attaining the age of superannuation". 9.Facts of this case are different, viz., an order has been passed permitting the appellant to retire from service though reserving right to proceed with the disciplinary proceedings. Law is settled that in the absence of rules empowering the Society to continue the disciplinary proceedings, no disciplinary proceedings can continue after the officer is allowed to retire, be it a case where right is reserved by the Society. In that context, the above Judgment relied on by the learned Counsel for the second respondent society is of no application to the facts of this case. 10.The learned Counsel for the appellant also brought to our notice yet another Division Bench Judgment of this Court reported in M.K.S.Balasubramanian vs. Kancheepuram Central Cooperative Bank Ltd., rep. by its Special Officer, 2010(2) CTC 569, wherein the Division Bench was considering a case of Assistant Manager of a Cooperative Society, who was allowed to retire from service on 31.03.2005 without prejudice to the disciplinary proceedings. While considering that case, the Division Bench held that the Society has no power to impose https://hcservices.ecourts.gov.in/hcservices/ the condition reserving the the right to proceed with disciplinary proceedings while allowing the appellant to retire from service. To draw the above conclusion, the Division Bench has relied upon the Judgment reported in N.Kunnai Gounder vs. The Coimbatore District Cooperative Milk Producers' Union Ltd., 2007 (5) CTC 491; F.Muthusamy vs. Tamil Nadu Cements Corporation Ltd., 2006 (4) MLJ 504. The Division Bench has also relied upon a decision of the Supreme Court reported in Bhagsrathi Jena vs. Board of Directors, OSFC & ors., 1999 (3) SCC 666, wherein in paragraph 7, the Apex Court has observed as under:- "In view of the absence of such a provision in the above said regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.06.1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement". 11.Considering the above Judgments of the Division Bench, we are of the opinion that in view of the subsequent Division Bench Judgment rendered on the question, the Cooperative Society cannot proceed with the disciplinary proceedings after the Secretary is allowed to retire from service, in the absence of any rules giving such power. 12.That apart, though this Court in its Judgment dated 14.12.2007 had directed the Common Cadre Authority to continue with the proceedings, the fact remains that pursuant to the said order, the appellant was reinstated and he was allowed to retire on 30.06.2007. Thereafter, Common Cadre Authority was abolished vide Government Order in G.O.Ms.No.122 Cooperative Food and Consumer Protection Department dated 04.07.2008. After the said date, Common Cadre Authority cannot issue fresh charge memo. The impugned charge memo was issued only on 09.09.2008. 13.It is the contention of the learned Additional Government Pleader that in terms of G.O.Ms.No.122, Common Cadre Authority is entitled to continue with the disciplinary proceedings which were pending on the date when the Government Order was passed. Hence Common Cadre Authority was entitled to proceed against the appellant. There cannot be any second opinion on the said issue as the Government Order empowers Common Cadre Authority to continue with the disciplinary proceedings which were pending on the date of issuance of Government Order in G.O.Ms.No.122 Cooperative Food and Consumer Protection Department dated 04.07.2008. However, that Government https://hcservices.ecourts.gov.in/hcservices/ Order cannot be made applicable to the case of the appellant as the disciplinary proceedings ended in passing an order of dismissal as early as on 23.06.2007. That order was questioned successfully by the appellant and the Division Bench in its Judgment dated 14.12.2007 allowed the writ appeal and set aside the order of dismissal with a further direction to the second Respondent to reinstate the appellant. Thereafter, of course, the Division Bench gave liberty to the Common Cadre Authority to proceed with the disciplinary proceeding afresh. If at all the common cadre authority could exercise its jurisdiction to proceed on the basis of the said direction, it could have been only prior to the issuance of Government Order in G.O.Ms.No.122 Cooperative Food and Consumer Protection Department dated 04.07.2008. The Division Bench Judgment should be read only in that way. The Division Bench Judgment cannot be relied upon by the second Respondent Society for tracing the jurisdiction of the Common Cadre Authority after 04.07.2008 when the charge memo was issued only on 09.09.2008. That charge memo is a fresh charge memo and it is not a continuance of the earlier proceedings. In that view of the matter, the charge memo dated 09.09.2008 initiated by the Common Cadre Authority after G.O.Ms.No.122 is also unsustainable. 14.On both the grounds, the appellant has to succeed. Accordingly, the writ appeal is allowed. Consequently, the Writ Petition is also allowed and the charge memo dated 09.09.2008 and the consequential order appointing Enquiry Officer dated 23.12.2008 are set aside. 15.We make it clear that in the light of the Judgment reported in The Registrar of Cooperative Societies, Kilpauk and another vs. G.Manoharan, [2010(2) CTC 234], this Judgment shall not stand in the way of the second Respondent society to initiate surcharge proceedings against the appellant. 16.There is no order as to costs in the writ appeal. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar tar To 1.The Chairman, Common Cadre Committee/ Joint Registrar of Cooperative Societies, Namakkal Region, Namakkal. https://hcservices.ecourts.gov.in/hcservices/ 2.The Special Officer, S-1067, Jamil Ellampalli Primary Agricultural Cooperative Bank Ltd., Paramathi Velur Taluk, Namakkal District. 1 cc To The Government Pleader, SR.53490 1 cc To Mr.M.S.Palaniswamy, Advocate, SR.53856 W.A.No.907/2010 KSK(CO) RH (19.9.11) https://hcservices.ecourts.gov.in/hcservices/