IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED: 23.04.2010 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.No.21441 of 2004 and W.P.M.P.No.25926 of 2004 R.Saravanan ... Petitioner Vs. 1.The Joint Registrar of Co-operative Societies, Office of the JR of Co-operative Societies, New palace, Madurai Road, Sivagangai. 2.The Special Officer, N.N.294, Mazhavarayanenthal Primary Agricultural Co-operative Bank Mazhavarayanenthai, Tirupachathi Post, Manamadurai Taluk, Sivagangai District. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorarified mandamus to call for the records of the 2nd respondent made in proceedings No.Na.Ka.1/2002/T.A. Dated 28.02.2003 and the consequential order passed by the 1st respondent made in proceedings in Na.Ka.No.4865/2003 Sa.Pa. Dated 14.10.03 and quash the same and consequently direct the respondents to reinstate the petitioner with continuity of service, entire backwages and all other attendant benefits and pass such further orders. For Petitioner : Mr.S.Subbiah For Respondents : Mr.B.Vijay, GA for R1 Mr.S.Gomathinayagam for R2 ORDER The present writ petition is directed against the order passed by the 2nd respondent made in proceedings No.Na.Ka.1/2002/T.A. dated 28.02.2003 and the consequential order passed by the 1st respondent made in proceedings in Na.Ka.No.4865/2003 Sa.Pa. dated 14.10.03 and https://hcservices.ecourts.gov.in/hcservices/ quash the same and consequently direct the respondents to reinstate the petitioner with continuity of service, entire backwages and all other attendant benefits. 2. The petitioner while serving as a Secretary of N.N.294, Mazhavarayanenthal Primary Agricultural Co-operative Bank / 2nd respondent society, alleged to have involved in the financial irregularities to the tune of Rs.3,00,000/-. Therefore, the 2nd respondent/Special Officer initiated disciplinary proceedings against the petitioner along with other erring staffs. The petitioner was placed under suspension on 26.04.2002, by an order passed by the 2nd respondent/Special Officer. Aggrieved by the suspension order, the petitioner filed writ petition in W.P.No.33206/2002 on the ground of delay in not holding the enquiry by the respondent. This Court by order dated 19.08.2002, directed the 2nd respondent/Special Officer to pay subsistence allowance to the petitioner pending enquiry and also to appoint the enquiry officer to conduct enquiry expeditiously, after giving fair and reasonable opportunity to the petitioner, in any event with six months from the date of receipt of a copy of this order. As against that order, writ appeal W.A.No.2000/2002 was filed, but Division Bench of this Court dismissed the same. Thereafter, the domestic enquiry was conducted. After giving reasonable opportunity to the petitioner and on completion of the enquiry, the enquiry report was also submitted before the respondent. Thereafter, the disciplinary authority passed dismissal order dismissing the petitioner from the service of the 2nd respondent on 28.02.203. Once again, the said dismissal order was challenged by the petitioner in W.P.No.12741/2003 and the said writ petition also disposed of, by giving a liberty to the petitioner to approach the 1st respondent, who is the Revisional Authority, by invoking the provisions of Section 153 of the Co-operative Societies Act. Later on, the 1st respondent/Joint Registrar of Co-operative Societies, while considering the revision petition, came to the conclusion that the financial irregularities levelled against the petitioner were properly established by the domestic enquiry and, therefore, the order of dismissal passed by the 2nd respondent was upheld by the revision authority. Aggrieved by the said order, the present writ petition has been filed. 3. Learned counsel appearing for the petitioner submits that the 2nd respondent/Special Officer, has no authority to pass order of suspension, since the Join Registrar of Co-operative Societies, is the competent authority, in view of G.O.Ms.No.55, dated 24.03.2000. In his further submission, it was argued that when the petitioner was placed under suspension on 26.04.2002, G.O.Ms.No.55, dated 24.03.2000, came to be passed by the Government in exercise of powers conferred under Section 75 of the Tamil Nadu Co-operative Societies Act, 1983, constituting Common Cadre of Service in respect of the https://hcservices.ecourts.gov.in/hcservices/ post of Secretary of the Primary Agricultural Co-operative Bank in the State from the date of issue of the order. Since G.O.Ms.No.55, dated 24.03.2000, indicates that the post of Secretary of the Primary Agricultural Co-operative Banks in the district concerned shall form the respective Primary Agricultural Co-operative Banks' common cadre service, the Joint Registrar of Co-operative societies in the Region concerned shall be the "Cadre Authority" in respect of Primary Agricultural Co-operative Banks for a period of three years from the date of coming into force of these regulations. By virtue of the above said G.O., it was contended that the order passed by the 2nd respondent/Special Officer, placing the Secretary/petitioner under suspension, is not sustainable in law. On that basis, prayed for quashing the impugned order by allowing the present writ petition. 4. In reply, learned counsel appearing for the 1st respondent submits that the 2nd respondent being the Special Officer, having seen certain serious irregularities in utilising societies' fund, placed the petitioner under suspension and subsequently, an enquiry was ordered under Section 81 of the Tamil Nadu Co-operative Societies Act. In the said enquiry, it was found that certain staffs of the 2nd respondent society were involved in misappropriation of the society's fund. Subsequently, along with surcharge proceedings, criminal proceedings were also initiated. While doing so, the 2nd respondent initiated disciplinary proceedings against the petitioner as well as other staffs. Subsequently, after holding domestic enquiry, by giving reasonable opportunity to the petitioner, and on receiving the report of the enquiry officer and finding the petitioner guilty of the charges levelled against him, passed the order of dismissal against the petitioner from the service of the 2nd respondent. When the petitioner challenged the said order in W.P.No.12741/2003, this Court also directed the petitioner to file revision petition under Section 153 of the Tamil Nadu Co-operative Societies Act, and refused to consider his plea that the 2nd respondent/Special Officer, had no authority to place the petitioner under suspension. Subsequently, the revision petition was filed under Section 153 of the Tamil Nadu Co-operative Societies Act, before the 1st respondent and the same also came to be disposed of by holding that initiation of domestic enquiry by the 2nd respondent/Special Officer against the petitioner, was absolutely within the power given under Rule 106 of Tamil Nadu Co-operative Societies Rules, 1988. Therefore, the petitioner cannot have any grievance and on that basis, prayed for dismissal of the writ petition. 5. Learned counsel appearing for the 2nd respondent submits that G.O.Ms.No.55 dated 24.03.2000 issued by the Government in exercise of the powers conferred under Section 75 of the Tamil Nadu Co-operative Societies Act, 1983, constituting Common Cadre of Service in respect of the post of Secretary of the Primary Agricultural Co-operative Bank in the State from the date of issue of this order, came to be https://hcservices.ecourts.gov.in/hcservices/ stayed by this Court in a writ petition filed by some of the staffs. Therefore, at that time, when the petitioner was placed under suspension by the Special Officer, the Special Officer had the power under Section 75 read with 106 of the Tamil Co-operative Societies Rules, 1988. In his further submission, it was argued that the Special Officer appointed under Sub-Section (1) of Section 88 shall, immediately, after taking charge of the management, examine whether any paid officer or servant of the society, whether or not he is borne on a common cadre of service was also responsible for any of the acts leading to the supersession of the board, and where there is a prima-facie evidence, he shall take such action against the paid officer or servant as may be necessary, including disciplinary action and suspension pending enquiry into grave charges and report to the Registrar the action taken by him within a period of three months from the date of his appointment. In view of Rule 106 of the Tamil Nadu Co-operative Societies Rules, 1988, the order passed by the 2nd respondent/Special Officer, placing the petitioner under suspension, cannot be found fault with, because G.O.Ms.No.55, dated 24.03.2000, was not implemented. In his further submission, it was submitted that though the petitioner filed number of writ petitions, namely, W.P.No.12741/2003, on the same ground that the 2nd respondent/Special Officer had no power in view of G.O.Ms.No.55, dated 24.03.2000, this Court having seen the said G.O. and facts and circumstance of the case, rejected the writ petition. Subsequently, when the petitioner approached the Revisional Authority, in view of the direction of this Court in W.P.No.12741/2003, the Revisional Authority has considered the entire matter and held that the 2nd respondent/Special Officer, had power to take disciplinary action against the petitioner, by virtue of Rule 106 of the Tamil Nadu Co-operative Societies Rules, 1988. 6. Heard the learned counsel appearing on either side and perused the materials available on record. 7. The only ground raised by the petitioner in the present case that the 2nd respondent herein, who has passed the suspension order, placing the petitioner under suspension on 26.04.2002, had no authority, in view of G.O.Ms.No.55, dated 24.03.2000, cannot be pressed into service for more than two reasons. Firstly, the writ petition filed by the petitioner in W.P.No.12741/2003 challenging the order of dismissal from service dated 28.02.2003, came to be disposed of by directing the petitioner to approach the Revisional Authority under Section 153 of the Tamil Nadu Co-operative Societies Act, and making clear that the 2nd respondent/Special Officer had the power to place the petitioner under suspension. It is not the case of the petitioner that G.O.Ms.No.55, dated 24.03.2000, was implemented, so as to say that the Joint Registrar being the cadre authority in respect of Primary Agricultural Co-operatives Banks, had the power to initiate disciplinary action against the petitioner/Secretary. This https://hcservices.ecourts.gov.in/hcservices/ was not his case either before this Court in W.P.No.12741/2003 nor before the Revisional Authority, who has passed the impugned order under Section 153 of the Tamil Nadu Co-operative Societies Act. Secondly, as rightly contended by the learned counsel appearing for the 2nd respondent, Rule 106 of the Tamil Nadu Co-operative Societies Rules, 1988, further makes the case of the petitioner very clear that the 2nd respondent/Special Officer appointed under Sub-Section (1) of Section 88 shall, immediately after taking charge of the management, take such action against the paid officer or servant as may be necessary, including disciplinary and suspension pending enquiry into grave charges and report to Registrar the action taken by him within three months from the date of his appointment, goes to prove that the 2nd respondent/Special Officer, who has been empowered under Rule 106 of the Tamil Nadu Co-operative Societies Rules, 1988, has rightly passed the order of suspension. The Revisional Authority also, while exercising power under Section 153 of the Tamil Nadu Co-operative Societies Act, having seen that the petitioner, who has committed misappropriation of Rs.3,00,000/- of the society fund, has rightly upheld the order of dismissal of the petitioner from the service of the 2nd respondent. Learned counsel appearing for the petitioner relied upon an unreported judgment in W.A. (MD) No.437/07 dated 14th March, 2008, pleading that this Court has already considered on the basis of G.O. No.55 that the Special Officer has no power to initiate disciplinary proceedings against the Secretary, but the arguments of the respondents that the power given to the Special Officer u/r 106 of the Tamil Nadu Co-operative Societies Rules, 1988 as well as the fact that G.O. No.55 was never implemented in view of the stay granted by this Court and, subsequently, the same Government Order was withdrawn by the Government were not argued nor brought to the notice of the Court. As rightly contended by the learned counsel for the respondents, the Government Order was not implemented. Even today the said Government Order has been withdrawn. That apart, as per Rule 106 of the Tamil Nadu Co-operative Societies Rules, 1988, the Special Officer has got ample power to initiate disciplinary proceedings. Even the petitioner did not press his case on the basis of G.O. No.55 before this Court in W.P. No.12741/03 as well as the before the revisional authority while passing the impugned order u/s 153 of the Tamil Nadu Co-operative Societies Act. Therefore, the impugned orders passed by the respondents does not call for any interference. 8. In any event, the argument advanced by the learned counsel appearing for the petitioner that the G.O.Ms.No.55, dated 24.03.2000 will override Rule 106 of the Tamil Co-operative Societies Rules, 1988, cannot be legally sustainable, for the simple reason that G.O.Ms.No.55, dated 24.03.2000, was subsequently withdrawn by the Government by abolishing the common cadre service. https://hcservices.ecourts.gov.in/hcservices/ Admittedly, the operation of G.O. No.55 dated 24th March, 2000, was stayed by this Court in W.P. No.19892/00 on 27th Nov., 2000. In view of the stay granted by this Court against the Government Order, the Special Officer, on 26th April, 2002, placed the petitioner under suspension by virtue of Rule 106 of the Tamil Nadu Co-operative Societies Rules. Even today, G.O. No.55 is no more in existence, since the Government has already withdrawn the G.O. No.55 on 4th July, 2009. That apart, in view of the Full Bench judgment of this Court in T.K.Ananda Sayanan – Vs – The Joint Registrar of Co-operative Societies, Vellore Region, Vellore & Ors. (2007 (5) CTC 1), the present writ petition challenging the order passed by the 2nd respondent, Special Officer, as confirmed by the 1st respondent, Joint Registrar of Co-operative Societies, is not amenable to writ jurisdiction, since the remedy available to the petitioner is u/s 154 of the Tamil Nadu Co-operative Societies Act. 9. That apart, in view of Rule 106 of the Tamil Nadu Co-operative Societies Rules, 1988, the present writ petition is not legally sustainable, as the same does not carry any merit and accordingly, the writ petition is dismissed. No Costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. rkm To 1.The Joint Registrar of Co-operative Societies, Office of the JR of Co-operative Societies, New palace, Madurai Road, Sivagangai. 2.The Special Officer, N.N.294, Mazhavarayanenthal Primary Agricultural Co-operative Bank Mazhavarayanenthai, Tirupachathi Post, Manamadurai Taluk, Sivagangai District. 1 CC To Mr.S.Subbiah, Advocate, SR.No.27470. 1 CC To Mr.S.Gomathinayagam, Advocate, SR.No.27083. W.P.No.21441/2004 RSN(CO) RVL 28.04.2010 https://hcservices.ecourts.gov.in/hcservices/