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Judgment
Honourable Mr. Justice Vinod K. Sharma
The petitioner has approached this Court with the prayer for issuance of a writ in the nature of Certiorari, to quash the order dated 30.07.2011
and 02.08.2011 ordering enquiry against the petitioner as also the consequential order dated 30.07.2011 withholding the petitioner''s retirement
benefits. The petitioner was employed as the Secretary In-charge, Tirupur Co-operative Housing Society Ltd. and attained the age of
superannuation on 31.07.2011 after rendering 39 years of service.
The case of the petitioner is that during his entire service carrier, he was not subject to any kind of disciplinary or criminal proceedings, rather he
was given regular promotion, as he joined as a Peon on 19.06.1972 and attained the post of Secretary.
It is pleaded case of the petitioner that just a day prior to the retirement of the petitioner, on the complaint filed against functioning of the Society,
an enquiry under Sec.81 of the Tamil Nadu Co-operative Housing Society Act, 1983, was ordered, on the allegation that loss of Rs. 1.5 Crores
was caused to the Tirupur Co-operative Housing Society by disbursing the arrears of salary to the employees on account of revision of pay and
that there was misuse of funds in construction of additional class rooms for Tirupur Kumaran College for Women, being run by the Society.
The case of the petitioner is that there was no specific allegation or charge memo against the petitioner, as enquiry under Sec.81 was against the
functioning of the Society in general without any employee being named therein.
The action of the respondents therefore in withholding the retirement benefits of the petitioner is totally arbitrary and cannot be sustainable in the
eye of of law.
The writ petition is opposed by the learned counsel for the respondents on the ground that the enquiry against the petitioner was ordered, a day
prior to the retirement and the respondents were justified in withholding the retirement benefits of the petitioner, pending enquiry initiated prior to
the retirement.
It is also the stand of the respondents, that by way of impugned order, the retirement benefits of the petitioner have been withheld subject to the
petitioner being exonerated in the enquiry. The petitioner therefore cannot have any grievance with the order passed, as it is not open to the
petitioner to challenge the enquiry proceedings before this Court at this stage, as the petitioner has the remedy to take all the defenses in the
enquiry proceedings.
On consideration, this Court finds that the stand taken by the respondents is totally misconceived. It is not open to the respondents to hold any
departmental enquiry against the petitioner after the date of retirement as relationship of Master and Servant comes to an end. The departmental
proceedings against the petitioner is prima facie without jurisdiction and cannot be a ground to withhold the retirement benefits.
This view find support from the judgment of this Court in the case of K. Balasubramaniam vs. The Registrar of Co- operative Societies
(Housing)and two others) (W.P.No. 5074 of 2009 and M.P.No. 1 of 2009 decided on 11.06.2009) holding therein as under:
On the other hand, the learned counsel appearing for the third respondent would submit that since the petitioner had been allowed to retire
without prejudice to the charge memo issued to him, the third respondent can proceed with the disciplinary proceedings. However, I am unable to
agree with the contention of the learned counsel appearing for the third respondent since when once the petitioner had been allowed to retire from
service and he retired from service, the third respondent cannot proceed with the disciplinary proceedings. No doubt, the petitioner had been
allowed to retire without prejudice to the charge memo issued to him. Even then, the third respondent cannot proceed with the disciplinary
proceedings against the petitioner. This view has been taken by the Hon''ble Apex Court and the same is reported in Bhagirathi Jena Vs. Board of
Directors, O.S.F.C. and Others, . and the relevant portion is usefully extracted here under:-
In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any
reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and
nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired
from service on 30.06.1995, there was no authority, vested in the corporation for continuing the departmental enquiry even for the purpose of
imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had
lapsed and the appellant was entitled to full retiral benefits on retirement.
The Division Bench of this Court has also taken a similar view and the same is reported in 2008 Writ L.R. 104 - N.Kunnai Gowder v. The
Coimbatore District Co-op. Milk Producers'' Union Ltd. & another. Paragraph 8 of the said order is usefully extracted here under:
In view of the admitted factual position in the case on hand that there is no specific enabling provision in the Tamil Nadu Co-operative Societies
Act and the Rules framed thereunder and legal position as referred to above, we hold that the order of the first respondent, reserving the right to
continue the disciplinary proceedings after superannuation, is illegal and without jurisdiction"".
However, since the surcharge proceedings are pending against the petitioner and the same has been challenged by the employees union in which
the petitioner is also one of the members, in W.P.No. 21109 of 2008, the petitioner is not entitled for the entire terminal benefits. In fact, the
learned counsel appearing for the petitioner would submit that the surcharge proceedings initiated against the petitioner is for a sum of Rs.
5,74,210/- and the third respondent can withhold the said amount till the disposal of the writ petition referred to above and the balance could be
paid to the petitioner.
For the reasons stated hereinabove, the departmental proceedings against the petitioner and order withdrawing the retirement benefits is
ordered to be quashed.
A writ in the nature of mandamus is issued directing the third respondent to settle the entire terminal benefits of the petitioner, within a period of
one month of the receipt of certified copy of the order.
It is however, made clear that if there is any recovery to be made or any other action taken against the petitioner, the respondents shall be at
liberty to prosecute the petitioner under the ordinary Civil or Criminal proceedings in accordance with law. Consequently, connected miscellaneous
petitions are closed.
No cost.