1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/07/2011 C O R A M THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD) No.7866 of 2011 and M.P.(MD).Nos.1 & 2 of 2011 Sivamurugiah ... Petitioner Vs. 1.The Joint Registrar of Co-operative Societies, Palayamkottai, Tirunelveli-627,002, Tirunelveli District. 2.0.114, Sevalkulam Primary Agricultural Co-operative Bank Ltd., rep. by its Special Officer, Sevalkulam Post, Sankarankovil Taluk, Tirunelveli District. ... Respondents Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus, calling for the records from the first respondent, Joint Registrar relating to the impugned proceedings passed by him Na.Ka.No.11818/2009 Saba dated 31.03.2011, quash the same and direct the 2nd respondent to restore the employment of the petitioner as Assistant Secretary of the 2nd respondent society. For petitioner .. Mr.P.Senthur Pandian For respondents .. Mr.B.Pugalenthi, Special Government Pleader ORDER Seeking for a certiorarified mandamus to quash the order dated 31.03.2011 and consequently with a prayer for a direction to the Special Officer, Sevalkulam Primary Agricultural Co-operative Bank Limited, Sankarankovil Taluk, Tirunelveli District, second respondent herein to restore the petitioner as Assistant Secretary of the said Bank, the petitioner has come forward with this writ petition. 2.Pleadings disclose that when the petitioner was working as Assistant Secretary of the second respondent Bank, he was placed under suspension on 30.10.2007. He challenged the same in W.P.(MD).No.3511 of 2008 and by virtue of the stay order granted in M.P.(MD).No.122 of 2008, he joined duty on 26.04.2008. Inspite of the interim order, the second respondent again placed the petitioner under suspension on 28.08.2008 with effect from 27.08.2008 and passed a further order on 02.09.2008, placing the petitioner under suspension from 27.08.2008, charges are framed on 10.10.2008, for which the petitioner sought for time to submit his explanation. He has also sent a letter dated 23.12.2008 seeking permission to peruse the records without which he could not give any explanation. It is the further contention of the petitioner that though a request dated 24.04.2009 was made for subsistence allowance, he was not https://hcservices.ecourts.gov.in/hcservices/ 2 paid. Despite above, the petitioner appeared before the Enquiry Officer on 11.05.2009 and requested him to pay subsistence allowance and also submitted a letter seeking for explanation regarding the charges. Though the petitioner sought for certain documents to effectively defend the charges, the same was denied and based on the Enquiry Officer's report, vide order dated 31.08.2009, he was dismissed from service retrospectively from 27.08.2008, the date on which he suspended. Being aggrieved by the same, the petitioner filed a revision petition on 23.09.2009 to the Joint Registrar of Co-operative Societies, Tirunelveli, first respondent herein, who after having categorically found that there were procedural irregularities in the conduct of domestic enquiry and violation of the principles of natural justice in not giving a reasonable opportunity to the writ petitioner to defend the charges effectively by perusing the records, etc., by order dated 31.03.2011 directed the Special Officer to appoint an Enquiry Officer afresh and further directed the petitioner to participate in the enquiry. 3.Having ordered for denova enquiry, by directing the Special Officer of the second respondent society, to appoint an enquiry officer, the revisional authority has failed to consider that once the domestic enquiry and the consequential imposition of penalty were found to be arbitrary, unreasonable and in violation of principles of natural justice, he should have set aside the punishment of dismissal and consequently directed the Special Officer of the second respondent society to restore the petitioner to his position, as stood on the date of passing of the order of punishment. In the case on hand, without setting aside the penalty, the revisional authority has ordered the penalty of dismissal to be intact, till the conclusion of a fresh domestic enquiry ordered by him. It is well settled that when there is cessation of master and servant relationship, no enquiry can be conducted against a person dismissed/removed/compulsory retirement from service. There should be a subsisting relationship of master and servant. 4.In such view of the matter, keeping the petitioner as a dismissed employee and ordering a domestic enquiry afresh, by appointing an Enquiry Officer, is wholly erroneous. Reading of the revisional order also makes it clear that the revisional authority has only considered the aspect of violation of the principles of natural justice in not allowing the petitioner to effectively defend the charges levelled against him and that he has not adverted to the merits of the case. It is also well settled law that when an punishment of dismissal/removal/compulsory retirement is set aside on the ground of procedural irregularities with the direction to conduct a fresh enquiry, by appointing an enquiry officer, the punished employee has to be restored to his original position, as if the punishment was not imposed and consequently entitled to the privileges, as per the service rules applicable to him. 5.In the case on hand, the petitioner was under suspension on 27.08.2008 and continued to be under suspension, till a final order of dismissal from service was passed on 31.08.2009 and on revision, the procedure followed by the enquiry officer and the punishing authority viz., the Special Officer of the Sevalkulam Primary Agricultural Co- operative Bank Limited, second respondent herein have found to be erroneous. Hence, for the reasons stated supra, the punishment of https://hcservices.ecourts.gov.in/hcservices/ 3 dismissal passed on 31.08.2009 cannot be ordered to be intact, till the conclusion of a fresh proceeding, which has to be commenced only after appointment of an enquiry officer. Till such time, the petitioner has to be restored to his original position, that is, he is deemed to be under suspension, till finality of the domestic enquiry and orders passed thereon. Such procedure is envisaged in Tamil Nadu Civil Service (Discipline and Appeal) Rules, as well as in Tamil Nadu Police Standing Service (Discipline and Appeal) Rules. Though the provisions of Tamil Nadu Co-operative Societies Act, 1983 do not contemplate restoration of the charged official to his original position, consequent to setting aside an order of appointment of dismissal/removal/compulsory retirement, considering the protection guaranteed under Article 14 of the Constitution of India, this Court is inclined to take external aid from the above said provisions relating to the Government Service/Police Personnel and accordingly, set aside only that portion of the order of the revisional authority, i.e., "treat the petitioner as dismissed", from service. Consequently a direction is issued to the respondents to restore the petitioner to his original position, i.e., under deemed suspension, till the conclusion of the departmental action to be taken against him. The above said exercise shall be completed by the respondents within a week and the petitioner be paid subsistence and other allowance permissible, under the Tamil Nadu Co-operative Societies Act and Rules framed thereunder. As the petitioner is willing to co- operate with the enquiry, a further direction is issued to the respondents to appoint an Enquiry Officer expeditiously and complete the disciplinary proceedings within a period of six months from the date of receipt of a copy of this order. 6.With the above direction, the writ petition is disposed of. Consequently, connected miscellaneous petitions are closed. No costs. Sd/- Assistant Registrar (T&P) /True Copy/ Sub Assistant Registrar To 1.The Joint Registrar of Co-operative Societies, Palayamkottai, Tirunelveli -627,002, Tirunelveli District. 2.0.114, Sevalkulam Primary Agricultural Co-operative Bank Ltd., rep. by its Special Officer, Sevalkulam Post, Sankarankovil Taluk, Tirunelveli District. Gcg GH : 04.08.2011 : 3p/3c W.P.(MD) No.7866 of 2011 15.07.2011 https://hcservices.ecourts.gov.in/hcservices/