D.A. Mohamed Khan vs Commissioner, Milk Production and Dairy Development Department and Others

P. Jyothimani, J.—Heard the learned senior counsel for the Petitioner and the learned Counsel appearing for the Respondents, who have

also filed the counter affidavit.

The writ Petitioner, who was appointed originally as Extension Supervisor in the erstwhile Tamil Nadu Dairy Development Corporation Limited

in 1978, was subsequently promoted as Deputy Manager (Administration) in 1995. After holding various posts he was given assignment in the

Tamil Nadu Cooperative Milk Producers Federation Limited, he has retired from service on attainment of superannuation on June 30,2006. While

holding the re-designated post as Selection Grade Assistant General Manager (Administration), the Petitioner was placed under suspension, which

was set aside by this Court by order dated February 16,2006 made in W.P. No. 38830/2005 filed by him. However, the second Respondent has

issued order dated June 30,2006 withholding the terminal benefits payable to the Petitioner till the audit objections pending against him in Tiruchi,

Nilgiris and Dharmapuri District Cooperative Producers Unions Limited are settled. It is the case of the Petitioner that there was no charge framed

against him and no memo has been issued during his service and therefore the detainment of the terminal benefits on the said flimsy ground is illegal.

It is his case that he was not involved in any of the instances stated to have taken place in Tiruchi, Nilgiris and Dharmapuri District Cooperative

Milk Producers Unions Limited. In respect of Dharmapuri District Cooperative Milk Producers Union, which is the 4th Respondent, it is stated

that just one; month before the date of retirement, the Petitioner was informed about certain time barred audit objections stated to have been

pending and that was replied by the Petitioner immediately and the audit objections were relating to the period 1984-85, which were

communicated in the year 2001-2002 and the same were settled during 2003 itself. Therefore, in respect of the objections of the year 1984-85

and even previous periods, there was no; communication and raising of the said objection at the time of retirement of the Petitioner after the lapse

of seventeen years is not permissible and the same is against the provisions of Tamil Nadu Cooperative Societies Act and the Rules made

thereunder, especially relating to the surcharge proceedings. In respect of audit objections of the Nilgiris District Cooperative Milk Producers

Union Limited viz., the 3rd Respondent, there has been a purported, proceedings in respect of 1995-96 and 1996-97 and about this there has

been no communication before the date of his retirement and therefore that is also barred by limitation since it is more than ten years. Regarding

Tiruchi District, Cooperative Milk Producers Union also, which relates to the year 1998-99, there was no communication earlier except just

before the date of retirement and that is also barred by a long lapse of 8 years. Therefore it is the case of the Petitioner that after completion of 28

years of service, the action of the 2nd and 5th Respondents in withholding the amount is a harassment. With the above said grounds, the Petitioner

has filed the writ petition challenging the proceedings of the 2nd Respondent dated June 30, 2006, especially, relating to the withholding of the

terminal benefits of the Petitioner till audit objections pending against him at Tiruchi, Niligiris and Dharmapuri District Cooperative Milk Producers

Union Limited are settled and also for consequential direction to Respondents No. 2, 3 and 5 to settle the retiral benefits of gratuity, encashment of

earned leave, unearned leave on private affairs at his credit as on June 30, 2006, and the TCMPF employees special superannuation fund and the

death-cum-retirement benefit of Nilgiri District milk Union respectively with penal interest.

The Respondents have filed the counter affidavit. The learned Counsel for the 2nd Respondent, who is the authority under whose control the

other Respondents are functioning, would submit that in respect of the Nilgiris District Cooperative Milk Producers Union, there is no proceedings

pending against the Petitioner and therefore the 3rd Respondent has no objection. In the letter dated March 29, 2006, the third Respondent has

stated that other than the proceedings dated November 7, 2005, no other disciplinary proceedings are pending against the Petitioner and no audit

objection is pending. Likewise, in respect of Dharmapuri District Cooperative Producers Union Limited viz., the 4th Respondent, learned Counsel

appearing for the 4th Respondent would also fairly submit that the pendency of the proceedings have been cleared and there is no objection on the

side of the 4th Respondent also. That is also the case in respect of 5th Respondent. As far as the 1st Respondent is concerned, admittedly, the 1st

Respondent has no role in respect of audit objection. It is also not in dispute that there has not been any proceedings initiated against the Petitioner

before the attainment of superannuation either u/s 87 of the Cooperative Societies Act for surcharge proceedings or any disciplinary proceedings

have either been initiated or pending against him and in fact the earlier writ petition filed by the Petitioner in W.P. No. 38830/2005, by order dated

February 16, 2006, this Court while setting aside the order of suspension passed against him on November 23, 2005 has held that on the facts and

circumstances of the case, the way in which the Petitioner has been dealt with by the superior officers shows that it is a case of sheer harassment

and directed that such harassment shall not be continued holding that initiation of disciplinary proceedings and serving charge memo at that stage

would amount to further harassment since the Petitioner was at the fag end of his retirement.

On the above said factual matrix, it has been brought to the notice of this Court by all the respective counsel appearing for Respondents 3 to 5

and it is clear that as on date, there are no proceedings pending against the Petitioner under the Tamil Nadu Cooperative Societies Act either under

surcharge proceedings and even otherwise there was absolutely no impediment on the part of the second Respondent in releasing the retirement

benefits due to the Petitioner.

In N. Kunnai Gowder Vs. The Coimbatore District Co-op. Milk Producers'' Union Ltd., , a Division Bench of this Court, while referring to the

provisions of the Tamil Nadu Cooperative Societies Act, has held that in the absence of any enabling provision under the Tamil Nadu Cooperative

Societies Act and Rules framed thereunder, reserving the right of employer to continue the disciplinary proceedings even after the employee attains

superannuation, no disciplinary proceedings can be either initiated or continued and such proceedings were totally illegal and without jurisdiction.

The relevant portion of the judgment reads as under at p. of MLJ:

A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceeding is kept pending by the

employer, the employee cannot be made to retire. In the instant case, no rule has been brought to our notice providing for continuation of such

proceeding despite permitting the employee concerned to retire. There has to be a specific provision of law or regulation or a by-law governing the

service conditions of the person in question for continuing a departmental enquiry, initiated before the date of superannuation, even after the

employee had retired from service. Without such a provision being available, there cannot be an employer-employee relationship surviving after the

employee retires from service. Therefore, continuing the enquiry proceedings or conducting an action against the person after his retirement from

service cannot be sustained in the eye of law.

Applying the above dictum laid down by the Division Bench and also on the facts, which have been elicited above, which shows in categoric

terms that no disciplinary proceedings are pending against the Petitioner, the impugned order dated June 30, 2006 stands set aside with direction

to the 2nd Respondent to release all the retiral benefits including the gratuity encashment of leave salary etc., due to the Petitioner along with

interest at the rate of 9 percent per annum from the date of filing of the writ petition till the payment and the said amount shall be paid within a

period of eight weeks from the date of receipt of copy of this order. The writ petition is ordered accordingly. No costs. Consequently, the

connected miscellaneous petitions are closed.