HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NO.29651 OF 2011 Dated: 05th December, 2011 Between: John Damodhar. … Petitioner And The Divisional Co-operative Officer and others … Respondents HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION No.29651 OF 2011 Order: This Writ petition is filed by the petitioner seeking a writ of Mandamus declaring the action of the respondents in not paying the petitioner his salary and arrears from 21.11.2003 till date and not allowing him to work as Chief Executive Officer of the 2nd respondent society in spite of the proceedings of the 1st respondent, dated 19.09.2010, directing him to discharge his duties and the proceedings of the 1st respondent vide Rc.No.382/2010-D, dated 30.05.2011, as illegal and arbitrary and consequently direct the 2nd respondent to pay his salary and arrears of salary due to him till date and allow to discharge his duties as Chief Executive Officer of the 2nd respondent society. 2. The brief facts of the case, that are necessary for disposal of the writ petition, are as follows:- The petitioner was initially appointed as a Paid Clerk in the Primary Agricultural Co-operative Society Limited on 01.03.1984 and has been discharge his duties. While so, the 2nd respondent, by proceedings No.Esst/2003-04, dated 21.11.2003, suspended the petitioner without any show cause notice on the allegation that he misappropriated the funds of the society by forging and on impersonation. On the said complaint, a criminal case was also registered against seven employees of the 2nd respondent, wherein the petitioner was figured as A2. Aggrieved by the same, the petitioner filed W.P.No.14944 of 2004 and the same was disposed of on 24.08.2004 directing the 2nd respondent to decide whether it is intended to proceed against the petitioner by way of disciplinary action, if so, to frame appropriate charges and to proceed with the enquiry expeditiously and to complete the entire process within a period of four months from the date of receipt of copy of the order. It was further directed that in the event the 2nd respondent decided to proceed with the disciplinary action, the charge sheet shall be served on the petitioner within ten days from the date of receipt of the copy of that order. It was further directed that if the petitioner is entitled for subsistence allowance as per the rules, he may make application to the respondents for the same. Pursuant to the orders of this Court, the 2nd respondent has neither initiated any disciplinary proceedings against the petitioner nor served any charge sheet. However, the criminal case registered against the petitioner and others was enquired by the IV Additional Judicial First Class Magistrate, Warrangal and the same was disposed holding that A1 to A7 therein are not guilty for the offences under Sections 468, 409 and 420 IPC and accordingly, they are acquitted. It is further submitted that on the said acquittal, the petitioner made a representation and hence, the matter was placed before the managing committee. The Managing Committee in its meeting resolved to take the petitioner into duty. Pursuant to the said resolution, the 2nd respondent issued order, dated 19.09.2010 taking the petitioner into duty and accordingly, he reported to duty. Thereafter, on 26.09.2010, again the matter was placed before the General body. In its meeting, the General Body resolved to pay the salary and other allowances to the petitioner. Thereafter on 07.10.2010, he made a representation to pay the arrears of salary in view of his acquittal from the criminal case. The 2nd respondent paid him the salary for the months of September and October and November, 2010 and there onwards they did not pay his salary. On the representation of the petitioner to pay him his arrears of salary due to him from 2003 onwards the Managing Committee in its meeting held on 10.11.2010 resolved to pay his arrears of salary treating him as on duty from 01.11.2003 to 18.09.2010. On the said resolution, the 2nd respondent addressed a letter to the 3rd respondent informing the same. In spite of the same, the 2nd respondent did not pay him the arrears due to him on the ground that he is awaiting for approval of the same from the 2nd respondent. Once again the petitioner made a representation on 15.05.2011 to pay the arrears of subsistence allowance for the suspension period amounting to Rs.3,11,044/- and also the arrears of salary on his rejoining till date. On his representation the 2nd respondent addressed a letter to the 1st respondent on 25.05.2011 requesting him for his approval to pay the salary and arrears. In turn the 1st respondent addressed a letter to the 2nd respondent on 30.05.2011 informing that the Managing Committee is the authority competent to pay the salaries to its staff and advised to decide the matter subject to the condition that he was otherwise eligible. Thereafter on 08.06.2011 the 2nd respondent informed the 1st respondent that in the meeting of the Managing Committee dated 03.06.2011 he was appointed and entrusted the duties of C.E.O. in the place of P.Raja Malla Reddy, CEO. Even after that also none of the respondents have taken steps to pay him the arrears and salary. In the meanwhile, as there was no communication from the 1st respondent to the 2nd respondent as per the resolution of the Managing Committee in its meeting, dated 02.07.2011, he was given back the charge of CEO to Sri P.Raja Malla Reddy and was attending the 2nd respondent office, but no work is being entrusted to him. Therefore, he once again made a representation to the 1st respondent requesting him to direct the 2nd respondent to entrust him his duties and pay him his arrears of salary. In spite of his representations, the respondents are not entrusting him any work and not paying his arrears and the salary. Hence, the writ petition. 2. Per contra, the 1st and 3rd respondents filed counter denying the allegations made by the petitioner stating that it is the responsibility of the 2nd respondent society to pay salary and the arrears to its employees from its own funds only and the 1st and 3rd respondents are not connected with the same. There are no proceedings of the 1st respondent, dated 19.09.2010. pursuant to the letter, dated 25.05.2011, wherein it was informed that the Managing Committee of the P.A.C.S., Station Ghanpur permitted the petitioner to work as a clerk of the Society with effect from 18.09.2010 as per the resolution of the Managing Committee and a request was made to the 1st respondent to give necessary permission for payment of salary and arrears. The letter dated 30.05.2011 was addressed by the 1st respondent clarifying that the President and the Managing Committee of the Society is the authority competent to pay the salaries to its staff and advised the 2nd respondent to decide the matter subject to the condition, whether the clerk is otherwise eligible. There are two E.Ps viz., E.P.Nos.10 and 11 of 2010 are pending against the petitioner. There is no cause of action against the 1st and 3rd respondents and hence, the writ petition is liable to be dismissed as against 1st and 3rd respondents. 3. In reply to the same, reply affidavit is filed by the respondents stating that the proceedings which were referred by 1st and 3rd respondents i.e., E.P.No.10 of 2010 for an amount of Rs.2,13/- and E.P.No.11 of 2010 for an amount of Rs.16,000/- pertains to surcharge proceedings and are in no way connected to the case in which he was suspended. Even the amount under surcharge were already paid and cleared. The surcharge proceedings which are referred in the counter affidavit were already closed. There are no departmental/ disciplinary proceedings pending against the petitioner. After considering all these aspects only the Managing Committee passed resolution on 19.09.2010 to take him into duty. Accordingly, the 2nd respondent issued orders dated 19.09.2010. But the respondents are not paying him salary and are not permitting him to perform his duties in spite of the orders issued taking him back to his duties. 4. Learned counsel for the petitioner contends that though there are no disciplinary proceedings pending against the petitioner, the petitioner has not been paid the arrears and salary and he was not entrusted any work. 5. Admittedly, it is clear from the record placed before this court that there are no disciplinary proceedings pending against the petitioner. Further, the petitioner was acquitted of the charges framed against him in the criminal case. The Managing Committee of the 2nd respondent society passed a resolution for taking the petitioner into duty and payment of salary and arrears. Later the petitioner was taken back into service, but he was not entrusted any work. 6. Under these circumstances, this court is not able to understand as to how the respondents are playing with the petitioner. Therefore, the manner in which the respondents are acting against the petitioner is unreasonable and contrary to law. The 1st and 3rd respondents having filed a counter admitted that they are not responsible and it is only the 2nd respondent who has to take action and pay the salaries to the petitioner, who is his employee. It is clear that the 2nd respondent society has passed resolution for taking the petitioner into service and for payment of salaries and when it was referred to the 1st respondent seeking approval it stated that it is the responsibility of the 2nd respondent, which is not permissible under law. As a supervisory authority, it is the duty of the 1st and 3rd respondents to guide the 2nd respondent society. The 1st respondent cannot disown the responsibility under law. Therefore, all the respondents are directed to take a decision within a period of two weeks from the date of receipt of copy of this order on the aspect of allowing the petitioner to perform the duties including the payment of salary and arrears from the date of suspension till date and pass appropriate orders in accordance with law. 7. The Writ Petition is, accordingly, disposed of. There shall be no order as to costs. _____________________ G. CHANDRAIAH, J 5th December 2011 LMV HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NO.29651 OF 2011 Dated: 05th December, 2011 lmv