V. Boopathy vs Joint Registrar of Co-operative Societies

N. Paul Vasantha Kumar, J.—Heard Mr. Balan Haridass, learned counsel appearing for the appellants and Mrs.T.P.Savitha, learned Government Advocate for the 1st respondent and Mr.M.S.Palaniswamy, learned counsel appearing for the 2nd respondent.

These writ appeals are filed challenging the order made in W.P.Nos. 29396 to 29401 of 2007, dated 03.2.2012, wherein the appellants have prayed to quash the order of the Joint Registrar of Co-operative Societies, Vellore Zone, Vellore dated 04.8.2007 made in the Revision Petition No. 16/2007.A2 and the consequential show cause notice issued by the 2nd respondent dated 31.8.2007 and direct the 2nd respondent to reinstate the appellants in service.

Brief facts are that the appellant in W.A.No. 949 of 2012 was appointed as Packer in the 2nd respondent Stores on 8.6.1988 and at the time of appointment he did not pass S.S.L.C. examination and had completed 26 years of service and his date of retirement is 31.7.2019. The appellant in W.A.No. 950 of 2012 was appointed as Salesman in the 2nd respondent Stores on 01.4.1973 on daily wage basis and thereafter, he was regularised in service as Salesman and retired from service on 30.4.2013, after completing 41 years, of service and at the time of appointment, he did not pass S.S.L.C. examination. The appellant in W.A.No. 951 of 2012 was appointed as Packer in the 2nd respondent Stores on 17.1.1986 and had completed 28 years of service and at the time of appointment, he did not pass S.S.L.C. examination and his date of retirement is 30.9.2015. Like wise, the appellant in W.A.No. 952 of 2012 was appointed as Packer in the 2nd respondent Stores on 17.1.1986 and had completed 28 years of service and at the time of appointment, he did not pass S.S.L.C. examination and his date of retirement is 31.5.2016. The appellant in W.A.No. 953 of 2012 was appointed as Packer in the 2nd respondent Stores on 15.2.1986 and had completed 28 years of service and at the time of appointment, he did not pass S.S.L.C. examination and his date of retirement is 31.8.2017. The appellant in W.A.No. 954 of 2012 was appointed as Packer in the 2nd respondent Stores on 20.4.1988 and had completed 28 years of service and at the time of appointment, he did not pass S.S.L.C. examination and his date of retirement is 31.1.2021.

The case of the appellants is that on 29.1.2007, the 2nd respondent suspended the appellants alleging that bogus mark sheets were produced by the appellants, as if they have passed S.S.L.C. examinations and when the appellants were asked to produce the original mark sheet, they failed to produce the same. Followed with the suspension order, on 15.2.2007, the 2nd respondent issued separate charge memo to the appellants and the appellants submitted explanation to the said charge memo on 05.3.2007, 20.3.2007 and 26.3.2007 respectively. Challenging the charge memo, the appellants have filed revision petitions under Section 153 of the Tamil Nadu Co-operative Societies Act, 1983 before the 1st respondent. In the revision petitions, the appellants have challenged the charge memo as well as non-payment of subsistence allowance. Since the 1st respondent has not passed any orders on the revision petitions, the appellants have filed W.P.Nos. 20673 to 20678 of 2007 before this Court. By order dated 15.6.2007, this Court directed the 1st respondent to dispose of the revision petitions within a period of eight weeks. Thereafter, 2nd respondent conducted domestic enquiry and Enquiry Officer submitted his report on 15.8.2007 holding that the appellants were not guilty of the charge levelled against them. Being not satisfied with the findings of the Enquiry Officer, the 2nd respondent issued second show cause notice on 31.8.2007. Challenging the same, appellants have filed W.P.Nos. 29396 to 29401 of 2007 with a prayer to quash the order of the 1st respondent dated 04.8.2007 made in the revision petitions and show cause notices dated 31.8.2007 and direct the 2nd respondent to reinstate the appellants in service.

The learned single Judge dismissed the writ petitions holding that it is open to the appellants to challenge the first impugned order before the appropriate forum or under the provision relating to labour enactment. Since the time granted for submitting explanation to the charge memo already expired, the learned single Judge granted liberty to the appellants to submit their explanation within 15 days, if no final orders have been passed, and only after submission of explanation by the appellants, the Society will have to take appropriate action. Aggrieved over the same, the appellants have preferred these writ appeals.

The common grievance of the appellants is that the qualification for being appointed as Packers is "literate and knowing cycling", submission of any education qualification certificate is of no consequence. The case of the appellants is that by virtue of co-operative training, the appellants have not gained any increment or promotion. Except the appellant in W.A.No. 950 of 2012, who attained the age of superannuation on 30.4.2013, all other appellants are still in service and submission of any mark sheet has got nothing to do for continuance of other appellants in service.

The learned counsel appearing for the appellants during the course of arguments submitted that even though consequential prayer of reinstatement was prayed for in the writ petitions, the appellants were not removed from service and they are continuously serving in the 2nd respondent Stores. The said submission of the learned counsel for the appellant is recorded. The learned counsel appearing for the 2nd respondent has also agreed that the appellants are still serving in the 2nd respondent Stores.

The case of the 2nd respondent, who initiated the proceedings against the appellants was that the appellants have produced bogus certificates like S.S.L.C. pass, Higher Secondary pass and Diploma in Co- operative training and claimed promotion. For the alleged charge against the appellants, an Enquiry Officer was appointed to go into the said issue. The Enquiry Officer found that the charge has not been proved. The Disciplinary Authority contrary to the finding of the Enquiry Officer, concluded that the charge was proved, without even issuing his differing views and calling for explanation and issued show cause notice as to why the appellants shall not be imposed with suitable punishment. As against the said order of suspension and charge memo, the appellants have preferred Revision Petition before the 1st respondent, which was also dismissed by the 1st respondent by order dated 04.8.2007. Thereafter, the 2nd respondent issued show cause notice on 31.8.2007 to the appellants calling for explanation, as stated supra. Challenging the order made in the Revision Petition dated 04.8.2007 and the show cause notice dated 31.8.2007, the appellants have filed W.P.Nos. 29396 to 29401 of 2007. The learned single Judge upheld the said orders and dismissed the writ petitions. Aggrieved over the same, these writ appeals are filed.

During the course of arguments, the learned counsel appearing for the appellants submitted that even if the allegations levelled against the appellants were not proved, the appellants are not entitled to claim promotion and for continuance of their post as Packers, the qualification required being "read", "write" and "ride bicycle", the appellants may be permitted to work as Packers and they will not claim any promotion. The learned counsel submitted that all the appellants have studied upto S.S.L.C., they were declared as S.S.L.C. failed and the said S.S.L.C. (failed) certificates found to be genuine by the Directorate of Government Examinations.

The appellants have also filed individual undertaking affidavit stating that the certificate produced by them as if they have passed S.S.L.C. was by inadvertence and they are tendering unconditional apology and the appellants undertook to work as Packers till their retirement and they will not claim any promotion in future.

Considering the said individual undertaking affidavit filed by the appellants and having regard to the fact that the qualification required for continuance of appellants in the 2nd respondent Stores as Packers being "read" "write" and "ride bicycle" and the appellants having failed in S.S.L.C. and the said failed certificates are found to be genuine and the appellant in W.A.No. 949 of 2012 is in service for nearly 26 years, and the appellants in W.A.Nos. 951 to 954 of 2012 are in service for nearly 28 years, and the appellant in W.A.No. 950 of 2012 retired from service, after rendering 41 years of service, at this stage the 2nd respondent may not be justified in terminating the services of the appellants.

(a) The Hon''ble Supreme Court in the decision reported in Union of India (UOI) and Others Vs. K.P. Tiwari, considered similar issue and in paragraphs 4 and 5 held thus,

"4. It is necessary in this case to examine either questions of law or fact arising in the matter. Suffice to say that the respondent has been appointed now and has been in service for more than five years. We do not think, it would be appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood.

In that view of the matter, we decline to interfere with the order made by the High Court. The appeals are accordingly dismissed."

(b) In the decision reported in D.M. Premkumari Vs. The Divisional Commissioner, Mysore Division and Others, , the Hon''ble Supreme Court held thus,

"15. ''''The law is merciless'''', is a most frequently quoted saying. It has led people to mistakenly think that it is separated from feelings of righteousness. We have become used to the understanding that such emotions as indignation, sorrow and compassionate should not exist in legal cases, especially not in judiciary. This, in our view, is a mis-understanding. Judiciary has very strong sense of justice and it works to maintain social justice and fairness. We hasten to add, judiciary does not believe in misplaced sympathy."

(c) A Division Bench of this Court presided by one of us (N.P.V.,J.) in the decision reported in The Joint Director of School Education, The Chief Educational Officer and The District Educational Officer Vs. C. Lesley Jayaseelan considered a case where termination of service under similar circumstance was made after a lapse of 22 years. The said order was set aside by the learned single Judge, which was affirmed by the Division Bench. In the said decision, the decision of the Hon''ble Supreme Court reported in D.M. Premkumari Vs. The Divisional Commissioner, Mysore Division and Others, was followed.

(d) Another Division Bench of this Court in which one of us (N.P.V.,J.) was a member of the Bench, in the decision reported in D. Rukmani Vs. The District Educational Officer and Others considered similar issue and noticing initiation of action after the lapse of five years on the ground that bogus certificate was produced for getting compassionate appointment, and considering the facts that the qualification for the said post being read and write, and that, for about 15 years the said appellant was in employment, allowed the writ appeal by setting aside the order dismissing the writ petition.

In the light of the above facts and circumstances as well as the law laid down by the Hon''ble Supreme Court and by this Court, we are of the view that the appellants'' claim may be considered by the 2nd respondent by accepting the undertaking given before this Court that they will not claim any promotion. However, having regard to the fact that the appellants have produced the bogus certificates and claimed promotion, which is now admitted, the appellants may be imposed with lesser punishment, other than the dismissal/removal from service. For that purpose, the matters are remitted to the 2nd respondent to impose lesser punishment, other than dismissal/removal from service. The said exercise is directed to be completed by the 2nd respondent, within a period of four weeks from the date of receipt of a copy of this order.

The writ appeals are disposed of, as stated supra. No costs. Consequently, connected Miscellaneous Petitions are closed.