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Judgment
Honorable Mr. Justice K. Chandru
The petitioner has filed the present writ petition, seeking to challenge an order dated 19.12.2008 passed by the second respondent viz.,
Registrar of Cooperative Societies in dismissing his appeal as well as the order of dismissal dated 29.05.2008 passed by the first respondent. The
petitioner preferred an appeal in terms of G.O. Ms. No. 55 Cooperation Food and Consumer Protection Department dated 24.03.2000, wherein
an appeal is provided as against termination in respect of employees coming under Common Cadre Service. The writ petition was admitted on
22.04.2009. On notice from this Court, on behalf of the second respondent, a counter affidavit dated 04.12.2009 was filed.
Heard the arguments of Mr. S. Venkatraman, learned counsel appearing for the petitioner and Mr. V. Subbiah, learned Special Government
Pleader for R2 and Mr. M. Dhandapani, learned counsel for the third respondent.
The petitioner was working as the Secretary of the third respondent namely Primary Agricultural Cooperative Bank at Kudhiraichandal. He was
placed under suspension by an order dated 19.03.2002 by the Special Officer of the Society. Subsequently, a charge memo dated 27.05.2002
was given to him. There were as many as six charges levelled against him listing out various commissions and omissions committed by the petitioner
in discharge of his duties as the Secretary. Pursuant to the charges, a domestic enquiry was ordered on 04.09.2003. A Co-Operative Sub
Registrar (Retd) was appointed as the Domestic Enquiry officer. The petitioner did not fully participate in the domestic enquiry. The Enquiry
Officer gave his enquiry report dated 16.09.2003.
Pursuant to enquiry report, the Special Officer of the Bank issued a show cause notice dated 08.11.2003. At that stage, the petitioner filed a
writ petition being W.P. No. 38818 of 2003 and obtained a stay of the disciplinary proceedings. By an order dated 09.12.2004, this Court set
aside the show cause notice dated 08.11.2003 and ordered for a fresh enquiry. The Joint Registrar of Cooperative Societies as the Chairman of
the Common Cadre Controlling Authority has ordered a fresh enquiry by appointing the Special Officer of Ulundurpettai FSCS as the Domestic
Enquiry officer. Before the Enquiry Officer, the petitioner demanded production of several documents.
It was thereafter the petitioner filed W.P. No. 40249 of 2006 seeking for a direction to pay subsistence allowance in terms of G.O. Ms. No. 55
Cooperation, Food and Consumer Protection Department dated 12.03.2000. That writ petition after notice to the parties came to be allowed by
this Court on 23.03.2007, since reported in A. Asokan Vs. The II 558 Kudhiraichandal Primary Agricultural Co-op. Bank Ltd. and The
Villupuram District Committee of Common Cadre Service for Secretaries of Primary Agricultural Co operative banks, . This Court directed the
respondents to pay subsistence allowance to the petitioner The matter was taken on appeal by the third respondent Society in W.A. No. 750 of
2007. A Division Bench of this Court by judgment dated 12.11.2007 confirmed the order passed by this Court and dismissed the appeal.
In the mean while, the Enquiry Officer by his report dated 27.04.2006 found the charges against the petitioner were proved. On the basis of the
said report, the petitioner was asked to offer his further remarks by a communication dated 28.09.2006. The petitioner sent a detailed reply dated
16.04.2007. The petitioner made all kinds of complaints about the manner in which the enquiry was conducted. Notwithstanding his reply, the first
respondent by his order dated 29.05.2008 dismissed the petitioner from service.
As against the dismissal, the petitioner preferred an appeal as provided under G.O. Ms. No. 55 dated 24.03.2000 before the appellate
authority viz., the second respondent by his appeal memo dated 02.07.2008. On notice from the second respondent, a counter statement was filed
by the third respondent society to which the petitioner filed a reply affidavit dated 06.10.2008. By the time he was dismissed, the Division Bench
judgment in his subsistence allowance case was yet to be pronounced. The petitioner after the pronouncement of the order filed a memo before the
second respondent bringing to his notice about the non-payment of subsistence allowance. It was stated by him that when he attempted to raise the
issue regarding subsistence allowance, the respondent did not allow him to raise the issue since the matter was pending in appeal before the
Division Bench. Now that the writ appeal was disposed of, he requested the authority to take note of the subsequent developments while passing
orders in the appeal.
The second respondent by an order dated 19.12.2008 dismissed the appeal and confirmed the order of dismissal passed by the first
respondent. Challenging the same, the petitioner has preferred the present writ petition as noted already.
Mr. S. Venkatraman, learned counsel for the petitioner contended that the authorities under the Act are not competent to decide such appeal as
they are not legally trained and no relief can ever be claimed from them and they are more or less inclined to affirm the action taken by the
employer.
In support of his contentions, the learned counsel for the petitioner placed reliance on several judgments of this Court and the Supreme Court,
which are as follows:
i) An unreported judgment of this Court in W.P. No. 183 of 1985 dated 18.02.1992 [M. Devan v. The Tamil Nadu Civil Supplies Corporation
Limited] was cited for contending that if an enquiry is not conducted properly, the Court can set aside the enquiry.
ii) A judgment of the Division Bench reported in 1987 WLR 252 [V. Subramaniam v. The District Khadi and Village Industries Officer] was cited
for contending that finding in an enquiry can be granted only on the basis of oral and documentary evidence produced. If no oral evidence was let
in to prove the documents, then the entries in records will not by themselves be an admissible material for finding of guilt.
iii) An unreported judgment of the Division Bench in W.A. No. 1801 of 2004 dated 02.09.2008 [The Board of Directors, The Tamil Nadu
Industrial Investment Corporation Ltd v. N. Somasundaram] was cited for contending that if the disciplinary authority disagrees with the findings of
the Enquiry officer, then an opportunity should be given to the charge sheeted employee.
iv) An unreported Division Bench judgment in W.P. No. 24308 of 2009 dated 19.01.2010 [The Chief General Manager (Telecom] and others v.
The Registrar, Central Administrative Tribunal, Madras Bench] was cited for contending that if no witness was examined to prove the charges,
then it will be violative of principles of natural justice.
v) A judgment of the Supreme Court reported in 2000 (7) Supreme 112 [Kumaon Mandal Vikas Nigam Ltd., v. Girja Shankar Pant and Others]
was cited for contending that if the documents requested is not given and in case of total miscarriage of justice, the High Court can interfere.
vi) A judgment of the Supreme Court reported in 2008 (4) L.L.N. 152 [State of Uttaranchal and others v. Kharak Singh] was cited for contending
that enquiry should not be an empty formality.
vii) A judgment of the Supreme Court reported in (2009) 1 SCC (L&S) 398 [Roop Singh Negi v. Punjab National Bank and others] was cited
for contending that though principles of Evidence Act will not apply but the enquiry should be conducted in accordance with the principles of
natural justice and the enquiry report should be free from conjectures and surmises.
viii) A judgment of the Supreme Court in Civil Appeal No. 254 of 2008 dated 02.02.2010 [State of U.P. & Others v. Saroj Kumar Sinha] was
cited for contending that if copy sought for are not furnished, that would amount to denial of reasonable opportunity to the employee to defend
himself.
ix) A Division Bench judgment of this Court reported in The Management of Hindustan Lever Limited Vs. Deputy Commissioner of Labour
(Appellate Authority under the Tamil Nadu Shops and Estates Act) and M.V. Raghuvir, was cited for contending that if the employee is kept
under dark as to what constitute ''misconduct'' in the eye of management, it is not open to the employer to fish out some conduct of the employee
as misconduct and punish the employee.
x) A judgment of the Supreme Court in Civil Appeal No. 7349 of 2008 dated 17.12.2008 [Union of India and Others v. Prakash Kumar Tandon]
was cited to contend that it was obligatory on the part of the Enquiry Officer to pass an order on the application for summoning the witness.
xi) A judgment of the Supreme Court reported in L.I.C. of India and Another Vs. Ram Pal Singh Bisen, was cited to contend mere fact that
documents were exhibited in civil suit, does not mean that the contents stood proved.
xii) A judgment of this Court reported in (2010) 5 MLJ 925 [M. Marimuthu v. General Manager (D & PB), State Bank of India and another] was
cited for contending that non-examination of witnesses for marking the documents should not be relied upon and if any reliance placed upon such
documents, the resultant finding is perverse.
xiii) A judgment of this Court reported in (2011) 5 MLJ 417 [G. Prakasam v. Secretary to Government, Pubic Works Department, Chennai and
others] was cited for contending that if the charge sheeted employee is not furnished with the required documents, then it would vitiate the enquiry.
In the light of these precedents, the learned counsel submitted that though reliance was placed upon the report u/s 81 of the Tamil Nadu
Cooperative Societies Act, the said report was not brought on record, never identified and marked as document. It was claimed by him that in
W.P. No. 42041 of 2008, the show cause notice was stayed though for a limited period and the respondent Society was represented. Therefore,
the respondents are aware of the pendency of the Court proceedings, but yet they proceeded to conduct enquiry. In the enquiry held on
18.11.2005, he demanded certain documents to be produced and the representative of the Society took time to get instructions. After the enquiry
held on 18.11.2005, no further enquiry was held. Thereafter, even that 18.11.2005 enquiry was not closed. The Enquiry Officer referred to two
dates viz., 15.12.2006 and 13.04.2006 on which dates, he said to have held the enquiry. But he had not stated anywhere that the petitioner was
put on notice about the said two dates. Though a direction was given to pay subsistence allowance by the order of this Court, the subsistence
allowance was not paid and the petitioner was prejudiced. In the enquiry, no witnesses were examined in support of the charges.
In the counter affidavit filed by the second respondent, it was stated that initially in W.A. No. 750 of 2007, an interim stay granted and
therefore, at that stage there was no obligation to pay subsistence allowance. Earlier, the writ petition filed against the show cause notice was
dismissed by this Court and there was no impediment for the respondents to conduct the case. Based on the order passed by this Court in W.P.
No. 38818 of 2003 dated 09.12.2004, a different Enquiry Officer was appointed. With reference to two dates mentioned by him in paragraph
(d), it was stated that the petitioner had participated in the domestic enquiry on various dates between 03.08.2005 and 18.11.2005 and
opportunity was given by the Enquiry Officer to peruse the documents. The petitioner also by a letter dated 18.11.2005 stated that he had perused
the documents and wanted some more documents, but that are not relevant to the charges and certain other documents were already submitted to
the Criminal Court viz., Judicial Magistrate Court, Kallakurichi for trial in the criminal proceedings. When a specific explanation was called for in
the show cause notice, the petitioner did not give any explanation and merely sent a letter seeking for payment of subsistence allowance and
furnishing documents. Therefore, they have come to the conclusion that the petitioner has no explanation to offer and hence, final orders came to
be passed. In the light of the stand taken by the respondent, this Court do not think that any case is made out to interfere with the impugned order
passed by the second respondent. Hence, the writ petition stands dismissed. No costs.