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Judgment
Vinod K. Sharma, J.—The Petitioner prays for issuance of a writ, in the nature of certiorari, to quash the order passed by the Deputy Registrar of Cooperative Societies, Kumbakonam, in exercise of the power, under 87 of the Tamil Nadu Cooperative Societies Act 1983 (hereinafter called Act) and that of, the learned Principal District Judge, exercising the power of the appellate Tribunal under the Act.
The Petitioner joined service of the Cooperative Department as ''Senior Inspector'' on 2.09.1986 and thereafter, was promoted as ''Cooperative Sub-Registrar'' on 30.09.1995. The Petitioner was appointed as ''Special Officer'' of the Kumbakonam Cooperative Urban Bank Ltd., Kumbakonam, on 23.06.2004 and worked on that post until 30.05.2007.
The Petitioner as a Special Officer, implemented the order passed by the predecessor Special Officer, re-fixing the salary of one Mr. M.Marimuthu and transfered a sum of Rs. 2,04,468/-[Rupees two lakhs Four thousand Four hundred and Sixty Eight only] to his account.
The 2nd Respondent being aggrieved by the release of salary due, in terms of re-fixation, ordered enquiry u/s 81 of the Act. The enquiry officer found that the order of re-fixation of the salary of Mr. M.Marimuthu was not correct and the enquiry officer, also came to the conclusion that the Petitioner acted with mala-fide intention in releasing the amount to Mr. M.Marimuthu, thus was guilty of having caused loss to the 1st Respondent.
On the basis of the enquiry report, the Petitioner was proceeded with u/s 87 of the Tamil Nadu Cooperative Societies Act, 1983, for recovery of the amount, i.e., loss caused to the society.
The learned Counsel for the Petitioner contested the claim on the ground that the Petitioner could not be held guilty of any lapse or loss, as he merely executed a valid order passed by his predecessor.
The defence raised by the Petitioner was not accepted. The Deputy Registrar Cooperative Society, found that the Petitioner was guilty of having caused loss to the Society, and passed an award, for recovery of the amount from the Petitioner.
The appeal filed by the Petitioner also failed.
It is needless to mention here that the order of recovery has been passed against the Petitioner as well as his predecessor, who had ordered re-fixation of salary.
The learned Counsel for the Petitioner, vehemently contended that the impugned order cannot be sustained, being perverse on the face of records, as No. recovery could be ordered unless, the order of re-fixation of salary of Mr. M.Marimuthu, is held to be illegal or set aside.
It is also the contention of the learned Counsel for the Petitioner that the allegations levelled against the Petitioner are totally false, misconceived furthermore the proceedings of the Act, are without jurisdiction, as the findings are based on No. evidence, as No. person was executed to prove the charge, as envisaged u/s 87 of the Act.
The learned Counsel for the Respondents on the other hand, contended that the misconduct of the Petitioner was prima facie proved, as the payment was released without prior approval of the Registrar. There is No. provision, under which the Special Officer, exercising the power of the administrative committee, was required to take prior approval of Registrar to implement the order or the Society.
In absence of statutory provisions, rules or instructions, it can be raised that prior approval of Registrar was required.
On consideration, I find force in the contention of the learned Counsel for the Petitioner. In the absence of an order, holding the re-fixation of salary of Mr. M.Marimuthu to be wrong, it cannot said that there was any loss caused to the society.
The Petitioner had only paid the salary due to an employee, as determined by his predecessor.
This act does not come under the purview of Section 87, of the Tamil Nadu Cooperative Societies Act, to hold an employee to be guilty of having caused loss to the society.
Every employee, is entitled to salary for the post, nothing has been brought on record to show, how the fixation of salary was wrong or as to how, Mr. Marimuthu was not entitled to salary as determined by the predecessor of the Petitioner. The payment due to an employee if paid can not be said to be a loss to society u/s 87 of the Act. The impugned orders, therefore, are illegal, arbitrary thus not sustainable in law.
Consequently, No. other conclusion than the one that the impugned orders, on the face of it, are arbitrary, can be taken.
For the reasons stated, The writ petition is allowed and the impugned orders are set aside.
Consequently, connected Miscellaneous Petition is closed. No. costs.