IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.2.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.12443 of 2008 M.Subramanian .. Petitioner Vs. 1. The Tamil Nadu Handloom Weavers Co-operative Society Limited rep. by its Managing Director Pantheon Road, Egmore Chennai – 600 008. 2. The Regional Manager The Tamil Nadu Handloom Weavers Co-operative Society Limited 201-A, Dr.Alagesan Road Sai Baba Mission Post P.B.No.2748, Coimbatore – 641 011. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Mandamus to direct the respondents to disburse to the petitioner entire dues as per the second respondent's letters dated 28.03.2005, RF.No.1874/S.V.R.S. / Settlement /2005 /A1 and 10.7.2006, RF.No.1874 / S.V.R.S./ Settlement/2005/A1. For Petitioner : Mr.P.Jayaraman, Sr.Counsel for Mr.K.Govindan For Respondents : M/s.Jayaraman and Associates ORDER The writ petitioner, who has joined in the Co-optex Department as Assistant Salesman in the showroom at Gudalur in 1978, was promoted as a Salesman on 1.11.1987 and was transferred to Kothagiri in April, 1990. It is stated that the Senior Regional Manager, Coimbatore has directed the petitioner to pay a stock deficit of Rs.1,04,632.75 and placed him under suspension on 7.6.1990, followed by a charge memo dated 11.7.1990. The petitioner has approached this Court by filing W.P.No.17495 of 1991 against the charge memo. It is stated that, at the instance of the management that if the petitioner pays Rs.16,000/- and https://hcservices.ecourts.gov.in/hcservices/ withdraws the writ petition he would be reinstated, the petitioner has remitted a sum of Rs.16,000/- and withdrew the writ petition on 25.2.1994. 2. It is stated that thereafter when he met with an accident he had to avail medical leave for two years and on 25.3.1996, he was posted to Coimbatore warehouse and after that he was forced to avail leave for another three years due to medical complications. The petitioner was transferred to Gudalur and he joined duty on 26.4.1999 and again within three months, viz., on 21.7.1999, he was transferred to Ooty Emporium and since he was admitted in Vijaya Hospital at Ooty and transferred to a hospital at Coimbatore, he was not able to join and ultimately, he joined duty on 25.8.2000 at Ooty Emporium. He was subsequently transferred to Gudalur on 25.3.2002 and joined duty on 6.4.2002 and since the Gudalur branch was closed, he was again transferred to Ooty Emporium. 3. The petitioner thereafter has made representations to refix his pay as per the pay revision. The first respondent directed the second respondent to consider the representation as per the communication of the first respondent dated 15.2.2002. When the petitioner was in service, the Co-optex Department has introduced Special Voluntary Retirement Scheme, since the department was facing severe financial crisis. As per the scheme which was issued by way of circular dated 5.2.2005, the ex-gratia payment will consist of 30 days salary, namely Pay + Dearness Allowance, for every completed year of service and ten days salary per year of service left until superannuation, etc. It is stated that the petitioner has applied under the Special Voluntary Retirement Scheme on 16.2.2005 to the first respondent through proper channel. Accepting the claim of the petitioner under the said scheme, the petitioner was relieved from service on 31.3.2005. As per the scheme, the entire amount due must be paid within six months time or on or before 30.9.2005. 4. The second respondent by his letter dated 1.9.2005 has stated that the entire dues shall be settled on or before 31.1.2006, i.e., after four months from 30.9.2005. The petitioner has made a representation to the second respondent on 15.9.2005 claiming the entire dues. In spite of the stand of the respondents to settle the amount by 31.1.2006, even after lapse of 2 years and 4 months, the amounts have not been settled. It is stated that the second respondent on 23.1.2007 has directed the petitioner to appear on 12.2.2007 at the Regional Office, Coimbatore with all documents and in spite of his appearance, no order has been passed. 5. In these circumstances, the present writ petition has been filed for a direction against the respondents to disburse the entire dues as per the second respondent's letters dated 28.3.2005 and 10.7.2006. https://hcservices.ecourts.gov.in/hcservices/ 6. In the counter affidavit filed by the second respondent, it is stated that the petitioner has created a stock deficit to the tune of Rs.52,316.67; time barred credit sales due of Rs.1,62,819.98; bogus credit sales dues of Rs.33,972/-; and misappropriation of credit sales collection amount of Rs.10,775/-, in all an amount of Rs.2,59,883.35 is liable to be paid by the petitioner. It is stated that an arbitration claim was filed under Section 90 of the Tamil Nadu Co-operative Societies Act on 14.12.1990 and a decree was passed on 29.9.1998 for the sum of Rs.2,59,883.35 with interest at the rate of 12.5% per annum. The said order has become final. 7. It is stated that subsequently the petitioner has created loss to the respondent/Society to the tune of Rs.10,845/- and a total amount of Rs.2,70,728.35 is liable to be paid by the petitioner. Out of this amount, it is stated that the respondent/Society has recovered an amount of Rs.95,933.35 from his monthly salary, Sales Commission, bonus, etc. and and as on 31.3.2005, the petitioner is liable to pay a sum of Rs.1,74,795/- to the respondent/Society. 8. As per the Special Voluntary Retirement Scheme, an employee on whom charges are pending for disposal can also avail the benefit of the scheme, provided an undertaking is given in stamp paper permitting the society to recover the amount of loss, apart from the amount payable to Co-optex, banks, Co-operative institutions, any court decree, etc., which would be deducted from ex-gratia amount. 9. It is only after going through the terms and conditions of the said Special Voluntary Retirement Scheme the petitioner has made an application and it is also stated that in terms of the said condition, the petitioner has given an undertaking for recovery of the amount due to the society and thereafter, the society has accepted the petitioner's application under the scheme. The petitioner was relieved on 31.3.2005, subject to the condition that all amounts would be recovered. 10. It is stated that the respondent/Society has to pay an amount of Rs.49,981/- towards terminal benefits and a sum of Rs.69,833/- towards revision of scale of pay and totally an amount of Rs.1,19,814/- is to be paid to the petitioner and on the other hand, the petitioner is liable to pay a sum of Rs.1,74,795/- to the society and after adjustment of the amount, the petitioner is still liable to pay a sum of Rs.54,981/- to the respondent/Society. 11. It is stated that the writ petition filed by the petitioner in W.P.No.17495 of 1991 challenging the charge memo was withdrawn by the petitioner himself and there was no condition stipulated by the respondent/Society at all for withdrawal. Therefore, it is the case of the respondent/Society that the petitioner is not entitled to any relief claimed in this https://hcservices.ecourts.gov.in/hcservices/ writ petition. 12. Mr.P.Jayaraman, learned Senior Counsel for the petitioner would submit that there was no finality in respect of the disciplinary proceedings and therefore, the recovery of huge amount is not permissible in law. It is his submission that the condition stipulated in the scheme will apply only in cases where the disciplinary proceedings have ended finally. It is his submission that in the letter of the petitioner dated 29.4.2002, the petitioner has admitted to pay only a sum of Rs.16,073/-. 13. On the other hand, it is the case of the learned counsel for the respondents that the writ petition is not maintainable since it requires factual aspects to be decided. That apart, it is the contention of the learned counsel for the respondents that the writ petition is not maintainable due to the judgment of the Full Bench of this Court in K.Marappan v. The Deputy Registrar of Co-operative Societies, Namakkal, 2006 (3) CTC 391. It is also the contention of the learned counsel for the respondents that the petitioner himself has signed in various letters admitting the conditions of the scheme. 14. To substantiate their respective stand, the learned counsel for petitioner has produced eight documents and the learned counsel for the respondents has produced two documents. 15. At the outset, it is relevant to refer to the conditions elicited in the counter affidavit filed by the respondents introducing the Special Voluntary Retirement Scheme in February, 2005, which are as follows, subject to which the applications are made for voluntary retirement: "(i) The employee on whom charges are pending for disposal can also apply for this scheme. In the case of punishment in force against the employees who opt for Special Voluntary Retirement Scheme, such employee should give an undertaking in stamp paper for Rs.10/- to recover the entire amount due by him like stock deficit, credit sales dues collection for which responsible has been fixed, the amount equivalent for punishment of stoppage of increment etc., from the ex-gratia and final settlement amount. Applications in such cases without undertaking will not be considered. (ii) If any money is due to be paid to Co-optex, banks, Co-operative Institutions, any Court Decree, etc., which are being recovered and paid through Pay Bill, the same will be deducted in the ex-gratia and other amount due and balance amount alone will be paid." https://hcservices.ecourts.gov.in/hcservices/ 16. It is seen that the arbitration award under Section 90 of the Tamil Nadu Co-operative Societies Act, as stated in the counter affidavit of the respondents, is not denied by the petitioner. 17. The writ petition filed by the petitioner in W.P.No.17495 of 1991 challenging the charge memo came to be dismissed as withdrawn in the order of this Court dated 25.2.1994. The operative portion of the said order is as follows: "Learned counsel appearing for the petitioner represents that he has instructions to withdraw this writ petition. Hence, this writ petition is dismissed as withdrawn. No costs." 18. While the said writ petition was pending, it appears that the petitioner has sent a letter on 2.7.1993 agreeing that he is prepared to pay an amount of Rs.16,072/-, which is the amount due as far as he is concerned and stating that if that is accepted, the petitioner will withdraw the writ petition. The operative portion of the said letter is as follows: "Mfnt. TlY}h; nfh/Mg;blf;!pd; fld; tpw;gid ghf;fp bghWg;g[fs; , d;W tiu vdf;F tH';ftpy;iyahjyhy;. nkw;go U:/16072-? vd;dplk; gpoj;jk; bra;J bfhz;L. vdf;F cj;jut[ tH';fg;gl;lhy;. nkw;go cah;ePjpkd;w tHf;F vz;/17495-91I thg!; th';fp bfhs;fpnwd; vd;gij ,jd;K:yk; kpf gzptd;g[ld; bjhptpj;Jf; bfhs;fpnwd;/" 19. The first respondent in the letter dated 11.8.1993 addressed to the Senior Sales Manager Incharge, Regional Office, Coimbatore, referring to the letter of the petitioner dated 2.7.1993, has passed the following order: "Thiru.M.Subramaniam, Salesman (Under suspension) in his letter dt.2.7.93 has agreed to adjust the amount due from him through salary, bonus, commission, etc. He has also agreed to withdraw the W.P.No.17495/91 filed at High Court, Madras, on reinstatement. Hence, it is decided to reinstate M/s.A.Rajagopalan, Manager (Under Suspension) and M.Subramaniam, Salesman (Under Suspension) into service. Please note that you may issue the Reinstatement and Transfer Proceedings to Thiru.M.Subramaniam only after Thiru.M.Subramaniam produces evidence for having withdrawn the writ petition." It is thereafter the writ petitioner has withdrawn the writ petition as stated above on 25.2.1994. Subsequently, the petitioner has made a representation on 7.12.1998. 20. The learned Senior Counsel for the petitioner would https://hcservices.ecourts.gov.in/hcservices/ rely upon the letter dated 25.7.1999 stated to have been issued by the Senior Regional Manager of the respondent/Society, signed by the Office Manager, V.M.Soodamani, which is as follows: "Credit sales old dues recovery list of the Gudalur Emporium all ready sent by this Office under the reference 3, Code No.243, 246. The then Manager of the Gudalur Emporium, Thiru A.Raja Gopalan, accepted in his letters noted above reference No.1, was identified by Thiru.M.Subramaniam, Salesman of the Gudalur Emporium. On 13.8.'89, two letters of Thiru.A.Raja Gopalan, accepting the entire old dues of Credit Sales outstanding and stock deficit of Rs.87,500/- should be recovered in his pay and other benefits. Credit Sales dues for the period 1980-81 to 1989-1990 due amounts not to recover any amount from Thiru.M.Subramamiam, Salesman of Gudalur Emporium." In the above said letter, it is stated that no amount should be recovered from the petitioner. This signature is specifically denied by the respondent/Society based on a letter of V.M.Soodamani addressed to M/s.M.Jayaraman Associates stating that the letter dated 25.7.1999 was not signed by him as the Office Manager and he has also put his specimen signature. A comparison of the signature in the letter dated 25.7.1999 relied upon by the learned Senior Counsel for the petitioner with that of the letter of V.M.Soodamani shows that there is no similarity at all and the signatures are totally different. 21. There are various letters produced by the learned Senior Counsel for the petitioner wherein some of the officials of the respondent/ society have accepted for a lesser amount to be recovered from the petitioner. Another letter dated 28.3.2005 stated to have been sent by the respondents on behalf of the Regional Manager, Coimbatore signed by the Office Manager, one V.N.Dhandapani is also heavily relied upon by the learned Senior Counsel for the petitioner. In the said letter, it is stated that the petitioner is liable to pay to the society only to the extent of Rs.12,482.70. This signature is also denied in the letter dated 31.7.2008 of the said V.N.Dhandapani, the Office Manager, Coimbatore at that time, clearly endorsing in the said letter his specimen signatures in English and Tamil. A comparison of the signatures shows that the signatures are totally different. The signature of V.N.Dhandapani in the letter dated 30.3.2005 filed in the type set of papers also differs from the specimen signatures. 22. In the circumstances that there is a factual dispute in respect of the validity or otherwise of the orders which are relied upon by the learned Senior Counsel for the petitioner, it is not possible for this Court to decide the factual issues as to whether the petitioner is eligible for any amount as claimed in https://hcservices.ecourts.gov.in/hcservices/ this writ petition. 23. That apart, as correctly submitted by the learned counsel for the respondents, as per the decision of the Full Bench of this Court in K.Marappan v. The Deputy Registrar of Co- operative Societies, Namakkal, 2006 (3) CTC 391, a writ petition against the co-operative society, especially on the factual aspect which is explained above, is not maintainable. It is not as if the petitioner has no remedy available either under the Tamil Nadu Co-operative Societies Act or under common law, especially in the circumstances that the right or eligibility of the petitioner to receive the amount stated therein depends upon the appreciation of evidence and validity or otherwise of various documents which are relied upon by both the sides. In such view of the matter, the petitioner is not entitled to any relief claimed in this writ petition. The writ petition fails and the same is dismissed. However, it is always open to the petitioner to work out his remedy in the manner known to law for recovery of the amount, in which event the appropriate authority shall take note of the pendency of the writ petition before this Court for the purpose of entertaining the claim. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar sasi To. 1. The Managing Director The Tamil Nadu Handloom Weavers Co-operative Society Limited Pantheon Road, Egmore Chennai – 600 008. 2. The Regional Manager The Tamil Nadu Handloom Weavers Co-operative Society Limited 201-A, Dr.Alagesan Road Sai Baba Mission Post P.B.No.2748, Coimbatore – 641 011. Copy to : The Section Officer,Current Section/E.R.Section, High Court, Madras. + 1 cc to Mr.K.Govindan,Advocate,SR.12308 + 1 cc to M/s.Jayaraman & Associates,SR.12373 W.P.No.12443 of 2008 KGK(CO) EM/4.3.10 https://hcservices.ecourts.gov.in/hcservices/