IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.06.2010 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.NO.22083 OF 2009 S.Paulraj ... Petitioner Versus State of Tamil Nadu Rep.by its Secretary to Government Coop, Food and Consumer Protection Dept. Fort St. George, Chennai – 9. ... Respondent PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the records relating to the G.O.(2D) No.91, Coop Food and Consumer Protection (CE2) Department, dated 17.08.2009 of the respondent, quash the same and consequently directing the respondent to pass final orders in the charge memo No.23467/CD-2/9714 dated 12.10.1999 without any further delay. For Petitioner : Mr.S.Venkataraman For Respondent : Mrs.Lita Srinivasan Government Advocate O R D E R The petitioner was employed as Deputy Registrar / Special Officer at Salem Agricultural Producers Marketing Society (SAPCMS), Salem during the period 23.12.1991 to 07.11.1994. Later, he was promoted as Joint Registrar of Cooperative Societies cum Principal of Samiappa Cooperative Management Training Institute, Thanjavur. 2.While he was serving as a Joint Registrar, the respondent issued a charge memo dated 12.10.1999 alleging dereliction of duties as Deputy Registrar during the period referred to above. The petitioner submitted his explanation on the charge memo on 18.11.1999. Not satisfied with the explanation, an official in the rank of Assistant Registrar came to be appointed as Enquiry Officer. The respondent communicated https://hcservices.ecourts.gov.in/hcservices/ the report of the Enquiry Officer along with a memo dated 21.06.2005 to the petitioner and sought his views thereon. He gave his explanation on the report of the Enquiry Officer on 12.07.2005 and no final orders were passed thereon. 3.In the meantime, he reached the age of superannuation on 30.06.2005. However, the respondent issued an order dated 30.06.2005 suspending him from service pending enquiry into the grave charges made in the charge memo dated 12.10.1999 and he was not permitted to retire from service. 4.The petitioner filed a writ petition in W.P.No.29786 of 2008 praying for a direction to the respondent to pass final orders on the disciplinary proceedings relating to the charge memo dated 12.10.1999, without any further delay. 5.This Court on 17.12.2008, in W.P.No.29786 of 2008, passed the following order: "2.The present writ petition is for direction against the respondent to pass appropriate final orders. Considering the above said submission and taking note of the fact that the enquiry has been completed and in fact, a copy of the enquiry report has also been furnished to the petitioner for which the petitioner has submitted his further explanation, the respondent is directed to pass final orders on merits and in accordance with law expeditiously in any event within four weeks from the date of receipt of copy of this order." 6.Based on the aforesaid order dated 17.12.2008, the respondent passed the impugned order in G.O.(2D) No.91, Cooperation, Food and Consumer Protection (CE2) Department, dated 17.08.2009 stating that as the petitioner filed writ petition questioning the surcharge proceedings and obtained stay, some others filed writ petitions challenging another surcharge proceedings relating to the loss caused to the Salem Agricultural Producers Marketing Society (SAPCMS) Salem, criminal case in C.C.No.23/2003 is pending against the petitioner before the Chief Judicial Magistrate, Salem, and that another criminal case is contemplated against him, the respondent could not pass final orders on the disciplinary proceedings relating to the charge memo dated 12.10.1999. 7.The petitioner filed the present writ petition to quash the aforesaid G.O.(2D) No.91 and for a consequential direction to the respondent to pass final orders on the https://hcservices.ecourts.gov.in/hcservices/ disciplinary proceedings relating to the charge memo dated 12.10.1999. 8.When the matter came up for admission on 29.10.2009, the learned Government Advocate took notice for the respondent and the matter was directed to be posted after two weeks. Thereafter, when the matter was listed on 12.11.2009, the learned Government Advocate took one more week as no instructions were forthcoming from the respondent. While so, notice of motion was ordered on 20.11.2009 and the matter was listed on 08.06.2010 and 22.06.2010. Despite the same, there was no counter from the respondent. Today also, no counter is filed by the respondent. 9.Heard Mr.S.Venkataraman, learned counsel for the petitioner and Mrs.Lita Srinivasan, learned Government Advocate for the respondent. 10.The learned Government Advocate submits that she wrote a letter dated 08.06.2010 to the respondent to depute a person with all documents, records and instructions in order to enable this Court to pass final orders on 22.06.2010. As there was no response, she again wrote a letter dated 22.06.2010 bringing into the notice of the respondent that this Court expressed its views that a direction would be issued to the respondent to pass final orders on the charge memo and requesting the respondent to give written instructions as to whether there was any legal impediment in passing any final order on the above said charge memo within a time frame. She produced those two letters dated 08.06.2010 and 22.06.2010 addressed to the respondent and pleads that there is no response from the respondent. 11.The impugned G.O.(2D) No.91 states that there were surcharge proceedings initiated against the petitioner for causing loss to the Salem Agricultural Producers Marketing Society (SAPCMS), Salem during the period 23.12.1991 to 07.11.1994 and the petitioner filed writ petition in W.P.No.1121 of 2005 against the surcharge proceedings initiated against him for the loss of Rs.26,84,667.20 caused to the said Society and obtained stay against the surcharge proceedings. It is also stated that a criminal case in C.C.No.23/2003 is pending against the petitioner before the Chief Judicial Magistrate, Salem and that the respondent has decided to file another criminal case against the petitioner. It is further stated that 4 persons challenged another surcharge proceedings in W.P.No.27144 of 2005 for the loss of Rs.81,97,628/- caused to the said Society. The petitioner is also one of the parties to the said surcharge proceedings. It is also stated that since the surcharge proceedings as well as the criminal proceedings are pending https://hcservices.ecourts.gov.in/hcservices/ against him, the respondent is not inclined to pass final orders on the disciplinary proceedings relating to the charge memo dated 12.10.1999. 12.The authorities concerned initiated surcharge proceedings against the petitioner under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 (in short "the Act") and fixed the liability on the petitioner. The authorities concerned also instituted criminal prosecution against the petitioner. The criminal prosecution, surcharge proceedings and disciplinary proceedings for his delinquency during the period 1991-1994 in Salem Agricultural Producers Marketing Society (SAPCMS) Salem are independent proceedings. The respondent cannot state the pendency of surcharge proceedings and the criminal proceedings as a ground for not passing final orders on the disciplinary proceedings. 13.It is stated by the learned counsel for the petitioner that as against the surcharge proceedings initiated against him, the petitioner filed statutory appeal provided under Section 152 of the Act before the Cooperative Tribunal at Salem and the same is still pending. When the appeal is pending, the authorities sought to recover a portion of the amount in the surcharge proceedings and the same was challenged by the petitioner in the aforesaid writ petition in W.P.No.1121 of 2005. It is stated that the said writ petition was disposed of on 17.09.2009 with a direction to the Cooperative Tribunal to dispose of the petitioner's appeal within three months. 14.In these circumstances, it is made clear that the surcharge proceedings under Section 87 of the Act; criminal proceedings for committing offences under the Penal Laws and the Cooperative Societies Act and the disciplinary action for committing misconduct are 3 independent proceedings. Having completed enquiry on the disciplinary proceedings in the year 2005 itself and having the Enquiry Officer submitted report in the year 2005 holding that the petitioner is guilty of the charges and also having the petitioner submitted his explanation in the year 2005, the respondent is not justified in passing the impugned Government Order citing the pendency of the surcharge proceedings and the criminal proceedings as an impediment to conclude the disciplinary proceedings. 15.In these circumstances, I am of the considered view that the impugned order is liable to be interfered with and accordingly, the same is set aside. The respondent is directed to pass final orders on the disciplinary proceedings relating to the charge memo dated 12.10.1999 within a period of four months from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 16.In fine, the writ petition is allowed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. TK To The Secretary to Government Government of Tamil Nadu Coop, Food and Consumer Protection Dept. Fort St. George, Chennai – 9. 1 cc to Mr.S. Venkataraman, Advocate, Sr. 46210 1 cc to Government Pleader, SR. 46251 W.P.NO.22083 OF 2009 VSV (CO) kk 6/7 https://hcservices.ecourts.gov.in/hcservices/