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Judgment
R. Mahadevan, J.—Challenging the orders, dated 14.05.2010 and 04.05.2010, dismissing the petitioners from service, and for a direction to the respondents to reinstate them in service with continuity of service with back wages, the petitioners have come forward with the present Writ Petitions.
The petitioners herein were working as Salesmen in Sathanur No. 1 Fair Price Shop, under the control of the second respondent. On 07.06.2007, the petitioners were suspended from service and charge memos were issued, on 31.10.2007. The petitioners submitted their explanation, on 09.11.2007 and 31.10.2007. The second respondent conducted enquiry and the Enquiry Officer submitted a report, on 21.02.2008. On receipt of report from the Enquiry Officer, the second respondent issued second show cause notice to the petitioners. The second respondent, by proceedings, dated 05.03.2008, imposed punishment of stoppage of increment for a period of five years with cumulative effect and ordered reinstatement in service. When the matter stood thus, the first respondent, suo motu, called for revision of the order of the second respondent, dated 05.03.2008 and issued notices to the petitioners, on 29.04.2010, directing them to appear before the second respondent, on 03.05.2010. The petitioners also submitted their explanation. However, after lapse of two years, the first respondent, not satisfied with the explanation offered by the petitioners, set aside the order of the second respondent, dated 05.03.2008, and imposed punishment of dismissal from service.
The learned counsel appearing for the petitioners contended that the suo moto revision by the first respondent u/s 153 of the Tamil Nadu Co-operative societies Act, 1983, [for brevity, "the Act"] is barred by limitation, as any such revision can be exercised only within ninety days. The learned counsel further contended that the second respondent, after considering the evidence and the fact that the petitioners had already remitted the amounts back, imposed a lesser punishment, and therefore, without any other incriminating material, the first respondent cannot re-open the case and pass orders on mere change of opinion. The learned counsel for the petitioners also placed reliance upon the judgments of this Court in M. Thanigaivelu Vs. The Joint Registrar of Co-operative Societies, and the unreported Judgment in S.Aruna Vs. The Registrar of Co-operative Societies, [W.P No. 18934 of 2013, dated 11.07.2013].
Per contra, the learned Government Advocate appearing for the respondents would contend that the Writ Petitions are not maintainable, in view of the availability of alternative remedy and that the period of ninety days prescribed u/s 153 of the Act is not applicable to a suo motu revision. The learned Government Advocate further contended that only after providing opportunity to the petitioners, the orders were passed by the first respondent, and therefore, there is no question of violation of principles of natural justice. The learned Government Advocate further contended that the petitioners, who were salesmen in the public distribution shop, created bogus ration cards and vouchers as if the goods were sold to the members, and therefore, the punishment awarded is justifiable. The learned Government Advocate also placed reliance upon the judgments of this Court in K. Marappan Vs. The Deputy Registrar of Co-operative Societies and The Special Officer, Vattur Co-operative Agricultural Bank, and N.P. Palanisamy Vs. State of Tamil Nadu, and sought for the dismissal of the Writ Petitions.
I have considered the above submissions and perused the records carefully.
In the Judgment in K. Marappan Vs. The Deputy Registrar of Co-operative Societies and The Special Officer, Vattur Co-operative Agricultural Bank, , the Full Bench of this Court, while answering the referendum held as follows:-
21.From the above discussion, the following propositions emerge:-
(i) if a particular co-operative Society can be characterized as a ''State'' within the meaning of Article 12 of the Constitution (applying the tests evolved by the Supreme Court in that behalf), it would also be ''an authority'' within the meaning and for the purpose of Article 226 of the Constitution. In such a situation, an order passed by a Society in violation of the bye-laws can be corrected by way of Writ Petition;-
(ii) Applying the tests in Ajay Hasia it is held that a co-operative society carrying on banking business cannot be termed as an instrumentality of the state within the meaning of Article 12 of the Constitution;-
(iii) Even if a society cannot be characterized as a ''State'' within the meaning of Article 12 of the Constitution, a Writ would lie against it to enforce a statutory public duty cast upon the society. In such a case, it is unnecessary to go into the question whether the society is being treated as a ''Person'' or ''an authority'' within the meaning of Article 226 of the Constitution and what is material is the nature of the statutory duty placed upon it and the Court will enforce such statutory public duty. Although it is not easy to define what a specific function or public duty is, it can reasonably said that such functions are similar to or closely related to those performable by the State in its sovereign capacity.
(iv) A society, which is not a ''State" would not normally be amenable to the Writ jurisdiction under Article 226 of the Constitution, but in certain circumstances, a Writ may issue to such Private bodies or persons as there may be statutory provisions which need to be complied with by all concerned including societies. If they violate such statutory provisions a Writ would be issued for compliance of those provisions.
(v) Where a Special Officer is appointed in respect of a co-operative society which cannot be characterized as a ''State'' a Writ would lie when the case falls under Clauses (iii) and (iv) above.
(vi) The bye-laws made by a co-operative society registered under the Tamil Nadu Co-operative Societies Act, 1983, do not have the force of law. Hence, where a society cannot be characterized as a ''State'', the service conditions of its employees governed by its bye-laws cannot be enforced through a Writ Petition.
(vii) in the absence of special circumstances, the Court will not ordinarily exercise power under Article 226 of the Constitution of India, when the Act Provides for an alternative remedy.
(viii) The decision in M. Thanikachalam and others Vs. Maduranthakam Agricultural Producers co-operative Marketing Society and others, , is no longer good law, in view of the decision of the seven-Judge Bench of the Supreme Court in Pradeep Kumar Biswas case and the other decisions referred to here before.
From the above ratio, it is clear that the Writ Petition against a co- operative society is not absolutely barred, but is subject to restrictions depending upon the facts of each case. In this case, the allegation against the petitioners is that they sold away the goods meant for Public distribution system to others by creating forged ration cards and vouchers. In the facts of the case, this Court is of the view that the society was only carrying out a public function. In the Judgment, relied upon by the learned counsel for the petitioner, in S.Aruna Vs. The Registrar of Co-operative Societies, [W.P. No. 18934 of 2013, dated 11.07.2013, this Court had entertained the Writ Petition against the orders in an application u/s 153 of the Act. Therefore, the Writ Petition is maintainable in the facts of this case.
Now, travelling into the question whether the suo motu revision is barred by limitation, as it was initiated after ninety days. In this context, the judgment of this Court reported in N.P. Palanisamy Vs. State of Tamil Nadu, becomes relevant, wherein this Court held as follows:
Further, as per Section 153 of the Act, a Revision can be taken suo motu by the Registrar. If we look into the Proviso, the time prescribed is only for making an Application to the Registra and it does not speak of suo motu Revision. Thus, the time prescribed in the Proviso is not with reference to a suo motu Revision to be initiated by the Registrar. When the Registrar has been empowered to initiate Revision suo motu, not circumscribed by any period of limitation, it cannot be said that the legislature would have intended to impose an impediment either on a third party or on the aggrieved person to prefer a Revision strictly within ninety days of time as provided in the Proviso. Therefore, i am of the view that the obvious intention of the legislature is to make it directory so as to encourage the parties to file Revision within 90 days. It cannot be, therefore, held that if a Revision is filed beyond 90 days, the same shall not be entertained.
At this juncture, it would be worthwhile to refer to Section 153 of the Act, which reads as under:-
(1) The Registrar may of his own motion or on application, call for and examine the record of any officer subordinate to him or of the board or any officer of a registered society or of the competent authority constituted under sub-section (3) of Section 75 and the Government may, of their own motion or on application, call for and examine the record of the Registrar, in respect of any proceedings under this Act or the rules or the by-laws not being a proceeding in respect of which an appeal to the Tribunal is provided by sub-section (1) of Section 152 to satisfy himself or themselves as to the regularity of such proceedings, or the correctness, legality or propriety of any decision passed or order made therein; and, if, in any case, it appears to the Registrar or the Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, he or they may pass orders accordingly:
Provided that every application to the Registrar or the Government for the exercise of the powers under this Section shall be preferred within ninety days from the date on which the proceedings, decision or order to which the application relates was communicated to the applicant.
(2) No order prejudicial to any person shall be passed under sub-section (1) unless such person has been given an opportunity of making his representations.
(3). The Registrar or the Government, as the case may be, may suspend the execution of the decision or order pending the exercise of his or their power under sub-section (1) in respect thereof.
(4). The Registrar or the Government may award costs in any proceedings under this section to be paid either out of the funds of the society or by such party to the application for revision as the Registrar or the Government may deem fit.
A perusal of the above provision makes it clear that the time period prescribed is not applicable to a suo-motu revision. The said Judgment is squarely applicable to the facts of the present case. Following the above Judgment, even in the judgment relied upon by the learned counsel for the petitioners in S.Aruna Vs. The Registrar of Co-operative Societies, [W.P. No. 18934 of 2013, dated 11.07.2013, this Court had reiterated that Section 153 of the Act is only directory and not mandatory. Therefore, the suo motu revision by the first respondent is not barred by limitation.
Now, the next question is whether adequate opportunity was afforded to the petitioners. From the paper book submitted by the petitioners, it is evident that upon receipt of the summons, they had appeared before the first respondent and submitted their objections. The impugned orders have been passed considering their objections. Therefore, it cannot be said that there is violation of the principles of natural justice.
Coming next to the Judgment in M. Thanigaivelu Vs. The Joint Registrar of Co-operative Societies, , relied upon by the learned counsel for the petitioners, this Court is of the view that the said Judgment is not applicable to the present facts of the case, as the revision proceedings therein were initiated based on surcharge proceedings and the petitioners had also contested the cases on merits, which is lacking in the present cases before this court.
Now, coming to the quantum of punishment, the first respondent had terminated the services of the petitioners. The petitioners, who were entrusted with public property, meant for distribution, had misappropriated the same. As rightly contested by the Government Advocate appearing for the respondents, just because the loss is mitigated, it will not set at naught the offence committed. The petitioners must have known the consequences of their illegal acts. The employees of the co-operative societies entrusted with the work of distribution of essential commodities under the Public Distribution System are implementing the functions of the state. The scheme itself is for the benefit of the poor and middle class people. There cannot be any sympathetic view in cases relating to misappropriation. Hence, in the facts and circumstances, this Court does not find any valid reason to interfere with the orders of the first respondent.
In the result, the Writ Petitions are dismissed. No costs.