IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.12.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.10894 of 2008 and 1147 of 2009 and M.P.NOS.1 and 2 OF 2008 and 1 of 2009 P.Thangavel .. Petitioner in both the petitions Vs. 1.The Chairman, Common Cadre Committee/Joint Registrar of Co-operative Societies, Namakkal Region, Namakkal. 2.The Special Officer, S-1067, Jamin Ellampalli, Primary Agricultural Cooperative Bank Ltd., Paramathi Velur Taluk, Namakkal District .. Respondents in both the petitions W.P.No.10894 of 2008 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the second respondent in Na.Ka.1/08 pa.tho dated 1.02.2008 and to quash the same insofar as it relates to the reservation of right to continue disciplinary action by respondents after the petitioner's retirement on 30.6.2007 and direct the respondents to settle the entire terminal benefits of Rs.4,55,762/- with 18% interest. W.No.No.1147 of 2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent in Na.Ka.1617/08 PACB dated 9.9.2998 and his consequential order in Na.Ka.No.1617/2008 PACB dated 23.12.2008 and to quash the same. For Petitioner : Mr.M.S.Palaniswamy For Respondents : Mr.R.Neelakantan, GA Mr.M.R.Jothimanian for R2 - - - - COMMON ORDER Heard both sides. Both the writ petitions are filed by one and the same person. In W.P.No.10894 of 2008, the challenge is to the order, dated 1.2.2008 so far as it relates to reservation of right to continue disciplinary action by respondents after the petitioner's retirement on 30.6.2007 and for a further direction to respondents to settle his terminal benefits together with 18% interest. The said writ petition was admitted on 19.8.2008. In the interim application, only notice was ordered. 2.Pending the writ petition, the petitioner has also come forward to file a second writ petition being W.P.No.1147 of 2009, seeking to challenge the charge memo, dated 9.9.2008 given to the petitioner. The writ petition was admitted on 13.4.2009 and interim stay was granted on the same day on the ground that the rule did not provide for proceeding with the disciplinary action after retirement. 3.It is the case of the petitioner that he was working as a Secretary in the second respondent Society. He was charge-sheeted with six charges. After his explanation, domestic enquiry was conducted. The Enquiry Officer conducted an enquiry and submitted the report on 19.12.2005. He participated in the enquiry. Based on the enquiry report, the Special Officer issued a show cause notice on 02.05.2007. After his explanation on 19.6.2007, the Special Officer held that the petitioner was guilty of charges and dismissed the petitioner from service on 23.6.2007. 4.The petitioner filed W.P.No.32697 of 2007 before this court challenging the dismissal order. The learned Judge dismissed the writ petition. Subsequently, the petitioner filed a writ appeal being W.A.No.1521 of 2007. The writ appeal came to be allowed by the division bench by a final order, dated 14.12.2007. In the operative portion of the order of the division bench, in paragraph 8 it was observed as follows: "8.In the light of the law laid down by the two Division Benches in The Special Officer -vs- A.Sundaram, dated 13.12.2006 and The Management, Kovil Vazhi Primary Agricultural Co-operative Bank Ltd., Coimbatore -Vs- P.Kanagavel and others, dated 22.2.2007, the enquiry proceeding as well as the impugned order of dismissal passed by the second respondent, dated 23.6.2007 are hereby quashed and set aside. The second respondent is directed to reinstate the appellant in service with a liberty to the Competent Authority to initiate disciplinary action against the appellant in accordance with law. It will be open for the Cadre Authority to continue the appellant under suspension subject to payment of subsistence allowance. The second respondent is directed to release the entire amount of subsistence allowance right from the date of suspension till today within a period of four weeks from today." (emphasis added) 5.In the meanwhile, the petitioner had reached the age of superannuation on 30.6.2007. But subsequent to the division bench order, the petitioner was permitted to retire from service without prejudice to the departmental action and also the criminal case pending before the Judicial Magistrate, Paramathivellore. This order is challenged in the first writ petition, in which there is no interim order. In the second writ petition, the petitioner has challenged the charge memo, dated 9.9.2008. 6.Subsequent to the charge memo, on 30.3.2009, the petitioner was given a notice calling for explanation on the enquiry report. On notice from this court, the respondents have filed a counter affidavit, dated 17.6.2009. In the counter affidavit, it was stated that the writ petition is not maintainable in the light of the larger bench judgment of this court in K.Marappan Vs. The Deputy Registrar of Co-operative Societies, Namakkal Circle, Namakkal-636 001 and another reported in 2006 (4) CTC 689 and hence the writ petition is liable to be rejected on the short ground. 7.However, Mr.M.S.Palaniswamy, learned counsel for the petitioner submitted that in Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and others reported in (1999) 3 SCC 666, the Supreme Court held that if a person is allowed to retire, no enquiry proceedings can be continued without there being specific provision in this regard. 8.He also placed reliance upon the judgment of the division bench of this court in N.Kunnai Gowder Vs. The Coimbatore District, Co-op. Milk Producers' Union Ltd. And another reported in 2007 (5) CTC 491. In that case, after referring to Bhagirathi Jena's case (cited supra), the division bench took a similar view that employer employee relationship will not survive after retirement and therefore, the employer's reserving right to continue disciplinary proceedings after superannuation is illegal. 9.The contention raised by the petitioner cannot be countenanced by this Court. In the present case, the Division Bench permitted the continuance of disciplinary action and therefore, no exception can be taken. The petitioner in the guise of lack of service rules cannot rely upon the said judgment as enuring to his benefit. The petitioner should either fall or stand by the order of the division bench. It is unnecessary that respondents should show any specific provision when the division bench has given liberty to proceed with. 10.In any event, this question came to be considered recently by a division bench of this court presided by Prabha Sridevan, J. in The Registrar of Co-operative Societies, Kilpauk, Chennai-10 and another Vs. G.Manoharan in W.A.Nos.256 and 257 of 2008. The division bench dealt with the issue extensively and laid the following propositions. In paragraph 33 of the judgment, it was held as follows: "33.From the records produced in this case, the following facts are obvious:- (a)The activities of the first respondent had caused a great deal of consternation among the authorities and they were forced to transfer him from the place where, according to them, he was causing a lot of damage. (b)The disciplinary proceedings had been actually initiated before his age of superannuation, since the first charge memo is dated 6.6.2003, whereas his age of superannuation is 31.6.2003. (c)He had also given a reply to the charge memo dated 6.6.2003, but had not chosen to reveal the fact of the issuance of this earlier charge memo in his writ affidavit. (d)No orders had been passed permitting him to retire; on the contrary, he was suspended on the eve of his attaining the age of superannuation. (e)The Supreme Court has held that even if a person had retired, if it is proved that he had caused loss to the establishment, then proceedings can be initiated to recover the amount of loss from him. (f)Even if a person has attained the age of superannuation, it is possible to dismiss him, in which event, he will not be entitled to his terminal dues vide (2007) 9 S.C.C. 15 (supra). (g)In any event, Section 87 of the Act gives the power to proceed against even a past employee for recovery and restoration of the financial loss caused to the Society." 11.In the light of the above, there is no case made out for entertaining both the writ petitions. Accordingly, both the writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions also stand dismissed. 11.12.2009 Index : Yes Internet : Yes vvk To 1.The Chairman, Common Cadre Committee/Joint Registrar of Co-operative Societies, Namakkal Region, Namakkal. 2.The Special Officer, S-1067, Jamin Ellampalli, Primary Agricultural Cooperative Bank Ltd., Paramathi Velur Taluk, Namakkal District K.CHANDRU, J. vvk PRE DELIVERY ORDER IN W.P.NOs.10894 of 2008 and 1147 of 2009 11.12.2009