IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.03.2010 CORAM : THE HONOURABLE MR.JUSTICE T. RAJA W.P.No.19927 of 2008 and M.P.No.1 of 2008 P.Raman ..Petitioner Vs. 1.The Joint Registrar of Co-op. Societies Cadre Authority in respect of Primary Agricultural Co-operative Bank Ltd. Nagapattinam, Nagapattinam District. 2.The Special Officer, Vanduvancherry Primary Agricultural, Co-operative Bank Limited, Vanduvanchery, Nagapattinam Taluk. ..Respondents Prayer : Writ Petition is filed under article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus directing the respondents herein to pay the balance backwage amount of Rs.7 lakh with interest at the rate of 24% per annum from 03.12.2004 till the date of realization to the petitioner and pass such further orders. For Petitioner : Mr.K.Raja For Respondents: Mrs.R.Anitha, AGP for R1 Mr.V.R.Thangavelu for R2 ORDER The only question raised in the present writ petition is whether the petitioner is entitled to receive his salary on the basis of G.O.Ms.131 of Co-operation, Food and Consumer Protection https://hcservices.ecourts.gov.in/hcservices/ Department dated 04.06.1999 or on the basis of 18(1) Settlement. 2. The petitioner was appointed as a Secretary on 28.05.1975 in the 2nd respondent's office. From the date of his appointment, he was working till 27.8.96. But, unfortunately, on 28.8.1996, he was placed under suspension and a charge memo dated 18.10.1996 was issued and charges were framed against him and enquiry was conducted by the 2nd respondent. After the enquiry, the 2nd respondent has passed an order of dismissal from service on the petitioner by order dated 25.11.97 with retrospective effect from 28.8.96. Aggrieved by the said order of dismissal from service, the petitioner preferred a revision petition on 11.5.98 before the Joint Registrar of Co-operative Societies. Though an interim order of stay of the order of dismissal from service was granted by the Joint Registrar of Co-operative Societies, the 2nd respondent challenged the grant of stay by filing W.P.No.12972/98 before this Court. Having seen the enquiry report as well as circumstances of the case, this Court set aside the interim order of stay, and directed the authority to hear the revision petition on merits, by order dated 8.10.98. Pursuant to the order passed by this Court, the Joint Registrar of Co-operative Societies passed an order of reinstatement of the petitioner in service by order dated 26.03.1999. Aggrieved by the order of reinstatement passed in favour of the petitioner, the 2nd respondent filed W.P.No.8113/99 before this Court, challenging the order under Article 226 of Constitution of India and this Court was pleased to remit the matter back to the Joint Registrar of Co-operative Societies by order dated 01.02.2000. Pursuant to the order passed by this Court, the Joint Registrar of Co-operative Societies, again passed an order of reinstatement in service with backwages by order dated 24.4.2000. Once again aggrieved by the order of reinstatement of the petitioner, the 2nd respondent again filed W.P.No.8421/2000 before this Court, and this Court again after going into the entire background of the matter, ordered that the matter has to be reheard once again, and again the matter was remitted back to the Joint Registrar of Co-operative Societies by order dated 10.11.2000. Again even the 3rd time, the Joint Registrar of Co-operative Societies ordered reinstatement of the petitioner in service with full backwages with effect from 28.8.96, by passing a detailed order dated 9.4.2001. Aggrieved by the said order of direction directing the petitioner to be reinstated in service with full backwages, the 2nd respondent filed W.P.No.9869/2001 and obtained an order of interim stay on 14.8.2002. However, the writ petition was withdrawn by the 2nd respondent, and, thereby the order passed by the Joint Registrar https://hcservices.ecourts.gov.in/hcservices/ of Co-operative Societies on 9.4.2001 became final and the petitioner was reinstated in service. Thereafter, the petitioner filed W.P.No.41435/02 before this Court, seeking a direction to the 2nd respondent herein to implement the order passed by the Joint Registrar of Co-operative Societies vide his proceedings dated 9.4.2001, ordering reinstatement with full backwages with effect from 28.8.96. The above said writ petition was also allowed by this Court. Since the 2nd respondent has failed to implement the above said order, the petitioner was constrained to file Contempt Petition No.653/2003. Pursuant to the contempt petition filed by the petitioner, he was reinstated in service with all backwages by order dated 30.01.2006. Finally, the entire backwages for the period from 28.8.96 to 2.12.2004, totalling a sum of Rs.13,22,007/- was finally sanctioned by the 2nd respondent in the above said order and the same was also deposited in the petitioner's savings account lying with the 2nd respondent society. In view of the contempt proceedings in Contempt Petition No.653/2003, the above said amount came to be deposited. But, out of Rs.13,22,007/-, a sum of Rs.7,00,000/- was deposited in fixed deposit in the 2nd respondent's bank for a period of one year from 01.03.2007. After the entire fixed deposit amount got matured on 2.3.2008, the petitioner sought for realization of the matured amount, but the 2nd respondent refused to pay the same on the ground that the 81 enquiry has been initiated and if for any reason the petitioner is found guilty in the 81 enquiry, the backwages pending with the 2nd respondent could be adjusted against the recovery of the money payable by the petitioner. 3. Learned counsel appearing for the petitioner submits that the 2nd respondent has not deposited the entire amount of Rs.13,22,007/-, but Rs.7,00,000/- has been invested in fixed deposit and on maturity, the same has not been paid to the petitioner, and the 2nd respondent is trying to nullify the order passed in W.P.No.41435/2002 dated 30.01.03. Therefore, it was argued that the 2nd respondent has no jurisdiction to withhold the sum of Rs.7,00,000/-, which has already been deposited pursuant to the order passed by this Court in W.P.No.41435 of 2002 and Contempt Petition No.653 of 2003. Though the petitioner preferred a representation on 20.04.2008 requesting the respondents to release the sum of Rs.7,00,000/-, the 2nd respondent has not disposed of the said representation as well. Therefore, aggrieved by the inaction shown by the respondents, the petitioner has filed the present writ petition with the above prayer. 4. Refuting the case of the petitioner, the learned counsel https://hcservices.ecourts.gov.in/hcservices/ appearing for the 2nd respondent submits that the backwages payable to the petitioner were calculated on the basis of the revised wages as per the 18(1) Settlement. But, at the time of settlement, the order of dismissal was in force against the petitioner. Subsequently, after a long time, the order of dismissal was set aside and he was ordered to be reinstated in service. While implementing the order to pay the backwages, the then Special Officer committed irregularity by fixing the pay as well as other allowances as per 18(1) Settlement, which was totally against the interest of the Bank and also against the G.O.Ms.No.131, Food and Consumer Protection Department dated 4.6.99. But while calculating the backwages, the then Special Officer committed irregularity by fixing the pay and allowances as per 18(1) Settlement of pay and allowances, which was against the interest of the bank and also against the G.O.Ms.No.131, Food and Consumer Protection Department, dated 4.6.99, which was already implemented by the Special Officer who filed W.A.No.3794/04 before this Court. Since the Special Officer has wrongly calculated the wages of the petitioner as Rs.14,59,573.80/-, there was a huge loss caused to the tune of Rs.6,77,483.75/-, which was also found only after the due enquiry held by the 2nd respondent. Therefore, part of the amount wrongly calculated towards payment of backwages and invested in fixed deposit in the petitioner's name, has been rightly frozen and the loss of Rs.6,77,483.75/- has to be made good to avoid the financial loss caused to the 2nd respondent. The enquiry officer, who conducted the enquiry, also recommended for legal action against the petitioner under Section 87 of Tamil Nadu Co-operative Societies Act, 1983 to recover the amount. By virtue of the order of interim stay, the petitioner joined duty as a Secretary on 1.7.2008 and he is presently performing on non-monetary affairs of the bank. The 2nd respondent, also on various dates, paid a sum of Rs.2,32,000/-, Rs.3,90,007.80, Rs.1,10,000/- and bearing these amounts, the balance amount of Rs.7,00,000/- was withheld by the department, only to adjust the over payment made to the petitioner previously. Therefore, the wrongful payment of backwages, which was invested in the fixed deposit in the name of the petitioner was frozen, only to safeguard the interest of the bank from financial crisis and on that basis, prayed for dismissal of writ petition, by justifying the stand of the 2nd respondent that he has rightly held the above said amount on the basis of the of the recommendation given by the enquiry officer. 5. Heard the learned counsel appearing on either side perused the materials available on record. 6. The claim of the backwages of the petitioner, P.Raman, was for a sum of Rs.15,20,815.80/- on the basis of the 18(1) Settlement for the period from 28.8.96 to 2.12.2004. Thereafter, a sum of Rs.14,32,007.80/-, was paid to the petitioner. The only question https://hcservices.ecourts.gov.in/hcservices/ for consideration is, on what basis, the calculation of the backwages has to be made. At the time of settlement reached, under Section 18 (1) Settlement of the Industrial Disputes Act, the petitioner not in service due to the order of dismissal. But, while implementing the order to pay the backwages, the then Special Officer should have calculated only on the basis of the 18(1) Settlement. Therefore, the backwages payable from 28.8.96 to 2.12.2004 are to be paid to the petitioner. The petitioner has received a sum of Rs.6,932/- as salary in terms of G.O.Ms.131 for the month of December 2004. But, the petitioner during the pendency of the contempt proceedings, has calculated his backwages from 28.8.96 to 2.12.2004 in terms of the 18(1) settlement. In view of the petitioner's wrong calculation, the then Special Officer also, without seeing the factual aspects that the petitioner's backwages should be worked out only on the basis of G.O.Ms.No.131, has wrongly released the amount, only to close down the contempt proceedings, but, subsequently, the enquiry officer, has found irregularities and recommended for recovery of the above said wrong payment made to the petitioner and also recommended departmental action against the then Special Officer, and only on the basis of the enquiry report, the then Special Officer, who had released the huge sums of money to the petitioner, without calculating on the basis of G.O.Ms.No.131, was placed under suspension for his dereliction of duties. 7. Learned counsel appearing for the 2nd respondent submitted that in view of wrong calculation, a huge money belonging to the Co- operative Societies has been wrongly paid and therefore, the Deputy Registrar of Co-operative Societies has ordered for enquiry under Section 87 of Tamil Nadu Co-operative Societies Act, 1983. Based on the order passed by the Deputy Registrar of Co-operative Societies, an enquiry was conducted and the enquiry officer has gone into the question whether the petitioner's backwages should be worked out on the basis of the 18(1) settlement or on the basis of G.O.Ms.No.131. In the final result, the enquiry officer concluded that the backwages were over paid to the petitioner, by wrongly calculating on the basis of the 18(1) settlement, when the backwages were to be calculated only in terms of G.O.Ms.No.131, dated 04.06.1999. Therefore, the stand taken by the respondents that they have not in any way attempted to reduce the backwages, cannot be rejected, for the simple reason that the petitioner has admittedly received his salary of Rs.6,932/- for the month of December, 2004 in terms of G.O.Ms.No.131. Therefore, the 2nd respondent has placed the then special Officer under suspension for wrongly calculating the backwages of the petitioner on the basis of the 18(1) Settlement. Further, the enquiry under Section 87 of Tamil Nadu Co-operative Societies Act, 1983, was conducted and the order has also been passed by the Deputy Registrar of the Co-operative Societies. The wrong payment of backwages made to the petitioner, which is not in terms of G.O.Ms.No.131, has been properly gone into by the Special https://hcservices.ecourts.gov.in/hcservices/ Officer, who was subsequently appointed, basing on the enquiry officer's report ordered that a sum of Rs.10,76,559.75/- has to be recovered from the petitioner as the same has been over paid to him. Therefore, the order passed by the respondents that the petitioner is entitled to receive his salary on the basis of G.O.Ms.No.131, cannot be found fault with. 8. In a similar matter in writ petition, W.P. No.8692/05, by order dated 15th March, 2010, I have already dismissed the writ petition, raising the same issue whether the scale of pay payable to the employees of the Cooperative Societies should be paid on the basis of 18(1) settlement or on the basis of G.O.Ms.No.131, dated 04.06.1999, by holding that the scale of pay has to be paid on the basis of G.O. No.131 dated 4.06.1999 and not as per 18 (1) settlement. As the legal position is already settled, I need not cite any reference and in the event of any conflict between law and by-law or between agreement and Government Order, the Government Order in G.O.Ms.No.131 dated 04.06.1999 passed by the Government will override the settlement reached under Section 18(1) of the Act. 9. Counsel appearing on both sides informed that surcharge proceedings were initiated u/s 87 of the Tamil Nadu Co-operative Societies Act against several co-directors of the same co-operative society for having paid salary to several employees violating G.O. No.131 dated 4.6.1999 by paying increased salary on the basis of 18 (1) settlement. The said writ petitions filed by the other co- directors of the same co-operative society were dismissed by this Court. In view of this, the present writ petition also is not legally maintainable. 10. In result, the writ petition is dismissed. No Costs. Consequently, connected MP.No.1 of 2008 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rkm https://hcservices.ecourts.gov.in/hcservices/ To 1.The Joint Registrar of Co-op. Societies Cadre Authority in respect of Primary Agricultural Co-operative Bank Ltd. Nagapattinam, Nagapattinam District. 2.The Special Officer, Vanduvancherry Primary Agricultural, Co-operative Bank Limited, Vanduvanchery, Nagapattinam Taluk. +1cc to Mr.V.R.Thangavelu, Advocate Sr 19996 +1cc to Mr.K.Raja, Advocate Sr 19963 RJ(CO) km/30.3. W.P.No.19927 of 2008 https://hcservices.ecourts.gov.in/hcservices/