AI Structured Summary
Not yet generated for this judgment
Judgment
Honourable Mr. Justice K. Chandru
The petitioner has come forward to challenge an order dated 23.3.2011 and after setting aside the same seeks for a direction to get the
consequential benefits.
The petitioner who was working as a Cashier in the Regional Office, TCMF Ltd., at Thiruthuraipoondi was relieved from duty on 29.2.2008
without prejudice to the investigation by the Director of Vigilance and Anti Corruption. By the impugned order, dated 23.3.2011, he was issued
with a charge memo setting out several charges which are to be proved by the list of witnesses found in Annexure-III and also list of documents
found in Annexure-IV. The list of witnesses runs into as many as 77 persons and that the list of documents listed therein are around 52 documents.
The contention raised by the petitioner was that the charge memo was framed after 11 years. Therefore, it has to be quashed on the ground of
delay. In similar cases, this court has quashed the charge memo.
However, in this case, it is not clear as to why, though the cause of action arose within the jurisdiction of the Madurai Bench, the petitioner has
chosen to move this court. Even otherwise, admittedly, the petitioner was an employee of the Cooperative Society, i.e., Thanjavur Cooperative
Marketing Federation Limited and no writ will lie in the light of the larger bench judgment of this court in K. Marappan Vs. The Deputy Registrar
of Co-operative Societies and The Special Officer, Vattur Co-operative Agricultural Bank, . Further merely because the petitioner has reached the
age of superannuation, it does not mean that the enquiry cannot be proceeded with.
In this context, it is necessary to refer to a judgment of the division bench of this court in T.K.K. Tharmar Vs. Registrar, Central Administrative
Tribunal, Chennai Bench, Chennai-104 and others reported in 2008 (3) MLJ 877, wherein after reviewing all the previous cases including the
subsequent pronouncements of the Supreme Court, it was held in paragraphs 27 and 28 as follows:
Therefore, in the light of the above, it has to be held that even after retirement, if there are statutory Rules providing for continuation of the
disciplinary proceedings, no exception can be taken for continuing a disciplinary action by an employer.
In the present case, Rule 9 is a complete answer for the contention raised by the petitioner. It must also be noted that very recently, the
Supreme Court in the judgment in U.P. State Sugar Corporation Ltd. and Others Vs. Kamal Swaroop Tondon, dealt with a case of the
employer''s right to initiate action even after retirement. The following passage found in paragraphs 27 and 28 may be usefully reproduced:
Para 27: In UCO Bank and Others Vs. Sanwar Mal, , the Court held that two concepts: (i) resignation; and (ii) retirement were different and
employed for different purposes and in different contexts. Resignation brings about complete cessation of master and servant relationship, but
retirement does not do so. In case of retirement, master and servant relationship continues for grant of retiral benefits.
Para 28: If it is so, the appellant Corporation, in our opinion, is right in submitting that the proceedings could have been continued after the
retirement of the respondent employee as far as the financial loss caused to the Corporation because of negligence on the part of employee and the
benefit claimed b the respondent workman on his terminal benefits are concerned.
A division bench of this court in The Registrar of Co-operative Societies, Kilpauk, Chennai-10 and another Vs. G.Manoharan reported in 2010
(2) CTC 234, after reviewing the case laws in paragraph 33 held as follows :
From the records produced in this case, the following facts are obvious:
(a) The activities of the first respondent had caused a great deal of consternation among the authorities and they were forced to transfer him from
the place where, according to them, he was causing a lot of damage.
(b) The disciplinary proceedings had been actually initiated before his age of superannuation, since the first charge memo is dated 6.6.2003,
whereas his age of superannuation is 31.6.2003.
(c) He had also given a reply to the charge memo dated 6.6.2003, but had not chosen to reveal the fact of the issuance of this earlier charge memo
in his writ affidavit.
(d) No orders had been passed permitting him to retire; on the contrary, he was suspended on the eve of his attaining the age of superannuation.
(e) The Supreme Court has held that even if a person had retired, if it is proved that he had caused loss to the establishment, then proceedings can
be initiated to recover the amount of loss from him.
(f) Even if a person has attained the age of superannuation, it is possible to dismiss him, in which event, he will not be entitled to his terminal dues
vide Ramesh Chandra Sharma Vs. Punjab National Bank and Another, .
(g) In any event, Section 87 of the Act gives the power to proceed against even a past employee for recovery and restoration of the financial loss
caused to the Society.
The learned counsel for the petitioner placed reliance upon a decision of a division bench of this court in W.A. No. 1390 of 2008 and batch
cases, dated 8.9.2010 in relation to the Tamil Nadu State Apex Cooperative Bank Ltd., wherein this court held that a writ petition was
maintainable and a direction to pay pension was given. However, the circumstances under which the division bench got over the larger bench
judgment is not clearly spelt out.
On the other hand, subsequent to the decision of the larger bench judgment in Marappan''s case, the Supreme Court had occasion to consider
the maintainability of a Writ Petition in respect of a Cooperative Society in more than one judgment.
The Supreme Court vide its judgment in Gurcharan Singh Vs. Registrar, Co-operative Societies, Himachal Pradesh and Others, observed as
follows :
Learned counsel for the appellant submitted with reference to a seven-Judge Bench judgment of this Court in Pradeep Kumar Biswas v. Indian
Institute of Chemical Biology that the writ petition is maintainable. By the said judgment, the decision of the Constitution Bench in the case of
Sabhajit Tewary v. Union of India was overruled. The Constitution Bench judgment in the case of Ajay Hasia v. Khalid Mujib Sehravardi was
explained and multiple tests for determining whether a particular corporation or body can be held to be included within the definition of ""State
under Article 12 of the Constitution, were laid down. It was inter alia held as follows: (SCC p. 134, para 40)
The picture that ultimately emerges is that the tests formulated in Ajay Hasia case are not a rigid set of principles so that if a body falls within
any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be -whether
in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the
Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article
On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.
(emphasis supplied)
It appears that the basic factual aspects were not placed before the High Court to determine the question whether the respondent Society was
State"" within the meaning of Article 12 of the Constitution. In view of the aforesaid, we feel that it would be appropriate for the High Court to
examine the question regarding the maintainability in the background of what has been stated in Pradeep Kumar case1. The parties shall be
permitted to place materials in support of their respective stands in this regard. As the matter is pending since 1995 and involves the question of
legality or otherwise of termination of services of the appellant, it would be in the interest of the parties if the writ petition is disposed of as early as
practicable, preferably within four months from the date of receipt of our order.
Subsequently, the Supreme Court in M.D., Bhadra Shahakari S.K. Niyamita Vs. President, Chitradurga Mazdoor Sangh and Others,
considered the scope of maintainability of a Writ Petition and in paragraph 3, it was observed as follows:
Mr Ranjit Kumar, learned Senior Counsel appearing on behalf of the appellant submitted that the appellant being a cooperative sugar factory
registered under the Co-operative Societies Act with a view to earn profit for the members of its society is purely a non-governmental organisation
and will not fall within the definition of ""State"" under Article 12 of the Constitution of India and, therefore, the writ petition filed by the respondent
Union was not maintainable. In support of his contention, the learned Senior Counsel placed strong reliance on the judgments in G.M., Kisan
Sahkari Chini Mills Ltd. v. Satrughan Nishad; Federal Bank Ltd. v. Sagar Thomas; Gayatri De v. Mousumi Coop. Housing Society Ltd.; Shrikant
v. Vasantrao and Pradeep Kumar Biswas v. Indian Institute of Chemical Biology. We have perused the above judgments. In our opinion, the writ
petition filed by the respondent Union against the cooperative sugar factory is not maintainable. We, therefore answer the said issue of
maintainability of the writ petition in favour of the appellant management.
Thereafter, the Supreme Court in S.S. Rana Vs. Registrar, Co-operative Societies and Another, , considered the entire issue once again and in
paragraph 12, observed as follows:
Respondent 2, the Society does not answer any of the aforementioned tests. In the case of a non-statutory society, the control thereover
would mean that the same satisfies the tests laid down by this Court in Ajay Hasia v. Khalid Mujib Sehravardi. [See Zoroastrian Coop. Housing
Society Ltd. v. Distt. Registrar, Coop. Societies (Urban).]
It is well settled that general regulations under an Act, like the Companies Act or the Cooperative Societies Act, would not render the activities
of a company or a society as subject to control of the State. Such control in terms of the provisions of the Act are meant to ensure proper
functioning of the society and the State or statutory authorities would have nothing to do with its day-to-day functions.
12.Thereafter, the Supreme Court, while dealing with the employees of the Cooperative Society in approaching the High Court for appropriate
relief in respect of their service conditions, once again considered the issue of maintainability of the Writ Petition vide its judgment in State of
Assam Vs. Barak Upatyaka D.U. Karmachari Sanstha, , it was observed as follows:
If the salaries are not paid, the remedy of the employees of CAMUL is to proceed against CAMUL, in accordance with law, by approaching
the forum under the appropriate labour legislation or the Cooperative Societies Act. But a trade union representing the employees of a cooperative
society cannot, by filing a writ petition, require the Government to bear and pay the salaries of the employees of the cooperative society,
howsoever pervasive, the control of the State Government, over such society. Nor is any right created to demand the continuance of financial
assistance to a cooperative society, on the ground that such assistance has been extended by the Government, for several years.
Further,the Supreme Court in Govt. of A.P. v. V. Appala Swamy reported in (2007) 14 SCC 49 held the parameters of interfering with a
charge sheet on the ground of delay in paragraphs 12, 14 and 15 which read as follows:
So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-
and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed
to be quashed on the ground of delay are:
(1) where by reason of the delay, the employer condoned the lapses on the part of the employee;
(2) where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the inquiry
officer.
.......
Learned counsel appearing on behalf ofthe respondent, however, placed strong reliance on adecision of this Court in M.V. Bijlani Vs. Union of
India (UOI) and Others, . That case was decided on its peculiar facts. In that case, even the basic material onwhich departmental proceedings
could be initiated wasabsent. The departmental proceedings were initiated after 6 years and continued for a period of 7 years. Inthat fact situation,
it was held that the appellant thereinwas prejudiced.
Bijlani, therefore, is not an authority and, in fact, as would appear from the decision in P.D. Agrawal for the proposition that only on the ground
ofdelay the entire proceedings can be quashed withoutconsidering the other relevant factors therefor.
In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, connected
miscellaneous petition stands closed.