IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12-7-2010 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.22229 of 2007 U.Natesan ... Petitioner Versus 1.The Joint Registrar of Co-opertive Societies Dharmapuri Regiona, Dharmapuri. 2.K.K.114, Illakiyampatti Primary Agricultural Co.op Bank rep. by its Special Officer, Vennampatti, Collectorate Post, Dharmapuri District. ... Respondents Writ Petition filed under Article 226 of Constitution of India praying for the issuance of Writ of Certioraraified Mandamus calling for the records relating to the order dated 8.5.2007 and the consequential order dated 8.6.2007 issued by the 2nd respondent and quash the same and forbear the respondents from demanding or deducting any amount from the retirement benefits of the petitioner in pursuant to the aforesaid order. For Petitioner :Mr.G.Ethirajulu For Respondents :Mr.P.Subramanian for R1 Mr.K.Elango for R2 ORDER The petitioner who was the former Secretary of the Second respondent society has challenged the order dated 8.5.2007 and the consequential order dated 8.6.2007 through which there was a demand calling upon the petitioner to pay the amount. 2. The case of the petitioner is that he was appointed as Secretary in the second respondent society on 1.11.1987. He retired on 28.2.2007 and before his retirement an undertaking letter from the petitioner was taken by the second respondent stating that if there was any loss to the society caused by him, he would make good for the loss. After getting that letter he was allowed to retire on https://hcservices.ecourts.gov.in/hcservices/ 28.2.2007. However retirement order was not given to the petitioner. Thereafter on 8.5.2007 the retirement order dated 28.2.2007 was issued. 3. When things stand so, the respondent issued a communication dated 8.5.2007 directing the petitioner to pay a sum of Rs.10,20,311.50/- being monetary loss caused by the petitioner to the society. Another communication dated 8.6.2007 was issued by the second respondent by which a sum of Rs.17,51,057.50/- was directed to be deposited by the petitioner. The communication dated 8.5.2007 and the communication dated 8.6.2007 are impugned in these two writ petitions. 4. Mr.G.Ethirajulu, learned counsel for the petitioner submitted that the petitioner was allowed to retire on 28.2.2007 and thereafter there is no employer employee relationship between the petitioner and the second respondent society. Therefore, the second respondent does not have control over the petitioner and there cannot be any proceedings against the petitioner in the absence of any enabling provisions. Further he submitted that the alleged loss caused to the second respondent society relates to the period from 1991 to 2003. In this regard, learned counsel relied upon a Division Bench judgement of this court in N.Kunnai gowder vs. The Coimbatore District Co-operative Milk Producers Union Limited and another reported in 2007 (5) CTC 491 and in M.K.S Balasubramanian vs. The Kancheepuram Central Co-operative Bank Limited reported in 2010 (2) CTC 569 and an unreported judgement dated 8.4.2009 passed by a Division Bench of this Court in W.A.No.103 of 2005 in Chengam Co-operative Primary Agricultural and Rural Development Bank, Chengam vs. M.Venkatachalam and two others. By relying upon those judgements, learned counsel submitted that after retirement the departmental proceedings cannot be proceeded with against the petitioner as there is no employer employee relationship. 5. On the other hand Mr.K.Elangoo, learned counsel for the second respondent submitted that the petitioner committed commission and omission while he was in service and he caused a heavy loss to the society and therefore the action is necessary against the petitioner. He further submitted that after getting an undertaking letter from him on 21.2.2007 only the petitioner was allowed to retire. When the said letter was given, the same is binding on the petitioner and he cannot wriggle out of the undertaking given in the said letter. He submitted that the impugned notices were issued as prelude to action under Section 87 of the Co-operative Societies Act and in fact, the petitioner replied on 27.2.2007 itself. He submitted that a person who is guilty of commission and omission cannot maintain a writ petition https://hcservices.ecourts.gov.in/hcservices/ and having caused heavy loss to the second respondent society. He relied upon a judgement of three judges Bench of the Hon'ble Supreme Court in Dr.Anil Bajaj vs. Post Graduate Institute of Medical Education and Research and another reported in 2002 (1) SLR 745 to buttress the point that the principle of estopple will apply relying upon the undertaking letter. Further he submitted that the judgement quoted by the learned counsel for the petitioner is in fact helps the second respondent. He pointed out that paragraphs 13 and 14 of the judgement reported 2010 (2) CTC 569 justified the surcharge proceedings initiated under Section 87 of the Tamil Nadu Co-operative Societies Act 1983. In essence, the learned counsel submitted that leniency should not be shown to the petitioner, who has caused loss to the Agricultural Co-operative Society. 6. The admitted fact in this case is that the petitioner retired from service on 28.2.2007. After 28.2.2007 there is no employer employee relationship between the petitioner and the second respondent. The question before this court is that after retirement i.e. on 28.2.2007 whether the second respondent has got any jurisdiction to proceed against the petitioner and recover the amount. Learned counsel for the second respondent submitted that the impugned orders are prelude the surcharge proceedings under Section 87 of the Act. For invoking Section 87 of the Act, there should be an enquiry or investigation under Sections 81 and 82 of the Act. Learned Counsel referred to the communication dated 8.6.2007 in which there is sentence as follows: "ePtph; nf.nf.114 ,yf;fpak;gl;o bjhlf;f ntshz;ik Tl;Lwt [ t';fpapy; brayuhf gzpahw;wp te;j fhyj;jpy; ckJ bray;ghLfshy; gpd;tUkhW t';fpf;F epjpapHg;g[ VwgLj;jpa[s;sjhf Ma;t [ mYtyh;fshYk; jzpf;if mYtyh;fshYk; Rl;of;fhl;lg;gl;Ls;sJ@ 7. By referring the above sentence, learned counsel for the second respondent submitted that there was an enquiry by the authority. If an enquiry/investigation has to be made it is required to be done as per the provisions of Sections 81 and 82 of the Co-operative Societies Act. 8. There is no such reference in the impugned order that there was an enquiry under Section 81 or inspection under Section 82 of the Act. In the absence of compliance of procedure contemplated under Sections 81 and 82, the statement in the impugned order dated 8.6.2007 cannot be termed as an order under Sections 8l and 82 of the Act. Therefore the submissions that the communications have been issued as prelude to Section 87 enquiry has got no legs to stand before this court and accordingly the said contention is rejected. However, under Section 87 the Society's right is preserved. https://hcservices.ecourts.gov.in/hcservices/ 9. The allegation against the petitioner is that he failed to take action to recover the loans from the borrowers. If there is any default or commission/omission there should have been immediate action on the part of the higher authorities. The higher authorities slept over the matter and woke up when the petitioner was about to retire and issued the impugned order. However this court is not giving clean chit to the petitioner and this court only finds that by the impugned order the petitioner cannot be proceeded with. 10. The judgements relied upon by the learned counsel for the petitioner are with regard to continuation of disciplinary proceedings against the delinquent officer. The Division Bench of this Court in N.Kunnai gowder vs. The Coimbatore District Co- operative Milk Producers Union Limited and another reported in 2007 (5) CTC 491 and in M.K.S Balasubramanian vs. The Kancheepuram Central Co-operative Bank Limited reported in 2010 (2) CTC 569 and an unreported judgement dated 8.4.2009 passed by a Division Bench of this Court in W.A.No.103 of 2005 in Chengam Co-operative Primary Agricultural and Rural Development Bank, Chengam vs. M.Venchatsharam and two others held that the disciplinary proceedings cannot be continued against the delinquent officer after retirement. 11. This court can take judicial notice what is happening in the Co-operative Societies. Our country is depending upon agriculture and most of the people are farmers. The co-operative movement is intended to help the poor agriculturists to get adequate timely loan for the purpose of cultivation. However the funds of the Co-operative Societies are looted in connivance with the officials and elected members and the action against erring officials are shown to have been taken by design beyond the mandatory period so that the delinquent officer as well as the higher officials would conveniently escape. The co-operative movement which has been started with laudable object to help the poor agriculturists is being highjacked by unscrupulous elements and this very movement is lost its relevance as on date taking into consideration of omission and commission done by the officials at every level. 12. This case is a classical example where there were omission and commission by a Secretary and there was a total failure on the part of higher authorities to follow up the matter and to recover the money from the borrowers. If at all there is any lapse, it lies only on the higher authorities, who should be blamed. The impugned proceedings cannot be made against the petitioner without following the procedures. Therefore the impugned notice is liable to be quashed and accordingly quashed. https://hcservices.ecourts.gov.in/hcservices/ 13. The learned counsel for the second respondent though rightly pointed out by relying upon the judgement in 2000 (2) CTC 569 that the rights of the society in so far as initiation of surcharge proceedings under Section 87 of the Tamil Nadu Co- operative Society Act holds good, there cannot be any quarrel with regard to that. However a perusal of the impugned order would show that the surcharge proceedings prelude to Section 87 of the Co- operative Act for the reason stated above. Therefore on that ground also the petitioner has to succeed. Merely because the impugned orders are quashed it does not mean that the petitioner did not commit any commission and omission. 14. Mr.Elangoo submitted that under Section 87 of the Tamilnadu Co-operative Societies Act 1983, the bank has got right to proceed against the employee after retirement. Section 87 of the Act is extracted as follows: "87. Surcharge – (1)Where in the course of an audit under Section 80 or an inquiry under Section 81 or an inspection or investigation under Section 82 or inspection of books under Section 83 or the winding-up of a society, it appears that any person who is or was entrusted with the organisation or management of the society or any past or present officer or servant of the society has misappropriated or fraudulently retained any money or other property or been guilty of breach of trust in relation to the society or has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has made any payment which is not in accordance with this Act, the Rules or the bye-laws, the Registrar himself or any person specially authorised by him in this behalf, of his own motion or on the application of the board, liquidatory or any creditor or contributory may frame charges against such person or officer or servant and after giving a reasonable opportunity to the person concerned and in the case of a deceased person, to the representative who inherits his estate, to answer the charges, make an order requiring him to repay or restore the money or property or any part thereof with interest at such rate as the Registrar or the person authorised as aforesaid thinks just or to contribute such sum to the assets of the society by way of compensation in respect of the misappropriation, mis- application of funds, fraudulent retainer, breach of trust or wilful negligence or payments which are not in accordance with this Act, the Rules or the bye-laws as the Registrar or the person authorised as aforesaid https://hcservices.ecourts.gov.in/hcservices/ thinks just: Provided that no action shall be commenced under this sub-section after the expiry of seven years from the date of any act or omission referred to in this sub- section. Provided further that the action commenced under this sub-section, shall be completed within a period of six months from the date of such commencement or such further period or periods as the next higher authority may permit but such extended period or periods shall not exceed six months in the aggregate. (2) Without prejudice to any other mode of recovery which is being taken or may be taken under this Act or any other law for the time being in force, any sum ordered under this section to be repaid to a registered society or recovered as a contribution to its assets may be recovered as if it were arrears of land revenue and for the purpose of such recovery the Registrar shall have the powers of a Collector under the Tamil Nadu Revenue Recovery Act, 1864 (Tamil Nadu Act II of 1864)" 15. Learned counsel relied upon a judgement of a Division Bench of this Court in M.K.S Balasubramanian vs. The Kancheepuram Central Co-operative Bank Limited reported in 2010 (2) CTC 569 to press the point that the bank has got power to recover the loss caused to the bank. Mr.G.Ethirajulu, learned counsel for the petitioner submitted that the petitioner retired from service on 28.2.2007 and he is suffering without retirement benefits and therefore he cannot be proceeded with against Section 87 of the Act. A Division Bench of this court in M.K.S Balasubramanian vs. The Kancheepuram Central Co-operative Bank Limited reported in 2010 (2) CTC 569 after referring to the judgement of the Hon'ble Supreme Court in Uttrapradesh State Sugar Corporation Limited and others vs. Kamal Swaroop Tondon 2008 2 SCC 41 upheld the rights of the society for initiation of surcharge proceedings under Section 87 of the Tamil Nadu Co-operative Societies Act. As far as the loss sustained by the society is concerned the right of the society as stated above to proceed under Section 87 of the Tamil Nadu Co- operative Societies Act 1983 is recognised and settled. Therefore it is open to the respondent-society to decide its course of action against the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 16. With the above the writ petition is allowed. No costs. Consequently the connected M.P.No.1 of 2007 and M.P.No.2 of 2007 are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vk To: 1.The Joint Registrar of Co-opertive Societies Dharmapuri Regiona, Dharmapuri. 2. The Special Officer,K.K.114, Illakiyampatti Primary Agricultural Co.op Bank Vennampatti, Collectorate Post, Dharmapuri District. +1cc to Mr.G.Ethirajulu,Advocate Sr 50286 +1cc to Mr.K.Elangoo, Advocate Sr 49794 GV(CO) km/31.8. W.P.No.22229 of 2007 https://hcservices.ecourts.gov.in/hcservices/