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Judgment
S. Tamilvanan, J.—The writ petition in W.P. No. 23260 of 2006 has been filed under Article 226 of the Constitution of India, praying for issuance of a writ of certiorari, calling for the records on the file of the respondent in connection with the order passed in Proceeding No. Proc. Estt/El/BS/Chepauk Cash Deficit/2006-07, dated 08-07-2006 and quash the same. The writ petition in W.P. No. 23268 of 2006 has been filed under Article 226 of the Constitution of India, praying for issuance of a writ of certiorari, calling for the records on the file of the respondent in connection with the order passed in Proceeding No. Proc. Estt/El/BS/Chepauk Cash Deficit/2006-07, dated 08-07-2006 and quash the same.
The writ petition in W.P. No. 31644 of 2007 has been filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorarified mandamus, calling for the records on the file of the respondent in connection with the order passed in Proceeding No. Proc. Estt/BS/Incre./2005-06, dated 31-01-2006 and quash the same and direct the respondent to pay annual increment regularly to the petitioner, as it is not withheld by way of an order of punishment, based on any proved charges by the respondent.
The writ petition in W.P. No. 31658 of 2007 has been filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorarified mandamus, calling for the records on the file of the respondent in connection with the order passed in Proceeding No. Proc. Estt/BS/Incre./2006-07, dated 18-04-2006 and quash the same and direct the respondent to pay annual increment regularly to the petitioner, as it is not withheld by way of an order of punishment, based on any proved charges by the respondent.
The writ petitioner, G. Somasundaram has challenged the order of recovery, dated 08-07-2006 passed by the respondent for the shortage of coins for the value of Rs. 68,220/-, as per the counting by his successor Nazeer Hussain on 05-05-2005, who had taken over charge from the petitioner on 15-04-2005. According to the petitioners, G. Somasundaram, the petitioner in W.P. Nos. 23260 of 2006 and 31644 of 2007 was the Branch Manager of Taico Branch, Chepauk Branch, Chennai and he was transferred to Tiruvannamalai Branch, hence he handed over the charge to his successor Nazeer Hussain on 15-04-2005. While handing over the charge, coins worth about Rs. 27,05,107/- in various denominations were handed over in gunny bags. As the same could not be counted on the said date, 15-04-2005, in the handing over and taking over report signed by the petitioner, Somasundaram and the said Nazeer Hussain, an endorsement was made stating that the coins were handed over without counting the same and if there was any deficit found later, that would be reported to the Head office.
According to the respondent, as directed by the Head of the Department, the handed over coins in gunny bags to Nazeer Hussain were taken to Neyveli branch of the respondent''s Bank, where the same were counted, which took place for about 7 days, by engaging nearly 10 persons to count. After counting on 05-05-2005, it was found that there was a deficit of coins worth about Rs. 68,220/-, for which the writ petitions, G. Somasundaram, the then Manager and GK. Dhananjaiyan, the then Cashier were held liable and as per the impugned order, they were asked to pay each 50% of the alleged shortage of coins. Aggrieved by the order, the writ petitions have been filed by them.
Mr. R. Singgaravelan, learned counsel appearing for the petitioner submitted that though there was a Departmental enquiry conducted by the respondent, mandatory provisions were not followed and that after handing over the gunny bags containing uncounted coins to the successor, Nazeer Hussain, the responsibility was fixed erroneously on the writ petitioners, though the uncounted coins were not in the custody of the petitioners for 20 days prior to the date of counting and the petitioners were not asked to be present during the counting. However, arbitrarily and against law, fixing the responsibility on the petitioners, for the deficit of coins, each of the petitioner was directed to pay 50% of the amount, Rs. 68,220/-. Without providing reasonable opportunity in the Departmental enquiry, the liability was fixed on the petitioners, who have already handed over the charge to the subsequent manager, Nazeer Hussain. Similarly, for the other writ petitioner, GK. Dhananjaiyan, it was submitted that he was only a joint custodian along with the other petitioner, G. Somasundaram and it was also argued that the charges levelled against the said petitioner Dhananjaiyan were not established by the respondent, however, punishment was imposed on the petitioners.
Mr. R. Singgaravelan, learned counsel appearing for the petitioners submitted that the petitioners are innocent persons and the impugned order has been passed arbitrarily against the petitioners. It is seen from the impugned order, dated 08-07-2006 passed by the Special Officer, Tamil Nadu Industrial Co-operative Bank Ltd., whereby the value of the deficit coins is stated at Rs. 68,220/-. The petitioner in W.P. No. 23260 of 2006 and W.P. No. 31644 of 2007, Somasundaram is directed to pay Rs. 34,110/- and similarly, the petitioner in W.P. No. 23268 of 2006 and W.P. No. 31658 of 2007, GK. Dhananjaiyan is directed to pay Rs. 34,110/- by the respondent. It is further ordered to recover the aforesaid amount at the rate of Rs. 1,000/- in 34 monthly instalments and Rs. 110/-, the balance amount as 35th instalment from each petitioner. Challenging the aforesaid order, the writ petitions have been preferred by the said petitioners.
Mr. Diwan Kattuva, learned counsel appearing for the respondent submitted that the charges levelled against the petitioners have been proved, as found in the enquiry report and he drew the attention of this Court to the enquiry report. According to him, on 15-04-2005, both the petitioners and the said Nazeer Hussain, the manager, who took over the charge have made endorsement in the relevant papers, whereby they have jointly stated that an amount of Rs. 27,05,107/- relating to coins in various denominations could not be counted on the said date of taking over charges. However, they agreed in writing that if there was any deficit arose, the same would be reported to the Head Office. Since the petitioner, Somasundaram was a signatory, according to Mr. Diwan Kattuva, it could be treated as his undertaking and the other writ petition, GK. Dhananjaiyan, being the cashier and joint custodian was also responsible for the deficit amount, relating to the coins.
Learned counsel appearing for the respondent mainly drew the attention of this Court to the enquiry report and the finding given by the enquiry officer. The enquiry office found that the charges levelled against the petitioners have been proved and according to the learned counsel for the respondent, the punishment was imposed to recover the amount from the petitioners, custodian and joint custodian of the coins entrusted prior to the date of handing over the charge.
In this regard, this Court has to consider whether the charges levelled against the petitioners have been proved, as per procedure known to law. If the findings of the enquiry office is perverse, that would not be sustainable in law. Learned counsel for the petitioners submitted that the findings of the enquiry officer is not based on evidence, hence, the same has to be construed as perverse.
It is an admitted fact that the petitioner, G. Somasundaram was the Manager of TAICO Bank and was transferred to Tiruvannamalai Branch of the Bank and he handed over his charge to his successor, Nazeer Hussain along with cash on 15-04-2005. So far as the currency notes are concerned, there is no dispute in handing over the charge, after counting the currency, however, the coins in various denominations were handed over in gunny bags without counting the same, to the successor, Nazeer Hussain by the petitioner, Somasundaram. Even the coins were not weighed, as per the respective denominations of the coins, for the reasons best known to the parties.
It is not in dispute that one of the writ petitioners, GK. Dhananjaiyan was joint custodian, being the cashier of the Bank. The coins were not in the custody of the petitioners for about 20 days, only on 05-05-2005, after completing the counting for about one week, it was found by the respondent that there was deficit of coins worth about Rs. 68,220/-.
As contended by Mr. R. Singgaravelan, learned counsel appearing for the petitioner, the respondent cannot fix the liability on the petitioners, since the gunny bags containing the coins were not in the custody of the petitioners for about 20 days from the date of handing over the charge and the coins were not counted in the presence of the petitioners. Having kept the gunny bags containing coins for about 20 days, transported the same from Chennai to Neyveli and after counting for one week in the absence of the petitioners, Somasundaram and Dhananjaiyan, the respondent could not fix the liability on the petitioners, for the alleged shortage of coins, on the date of handing over the charges and therefore, according to the learned counsel for the petitioners, the finding of the enquiry officer is perverse. Learned counsel for the petitioners further submit that the charges levelled against the petitioners were not established by the respondent to recover the amount from them. In support of the said arguments, the learned counsel for the petitioners has cited the following decisions:
State of U.P. and Another Vs. Radhey Shyam Rai,
United India Insurance Company Limited Vs. Manubhai Dharmasinhbhai Gajera and Others,
Pradeep Kumar Biswas and Others Vs. Indian Institute of Chemical Biology and Others,
Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others,
Salim Ali Center for Ornithology and Natural History v. Dr. C.P. Geevan, 2010 (1) CWC 641.
V.C. Baskar Vs. The Project Director/Member Secretary, Tamil Nadu State Aids Control Society
T.K. Ananda Sayanan Vs. The Joint Registrar co-operative Societies, Vellore Region and The Special Officer, Sinampattadai Primary Agricultural Co-operative Bank,
K. Marappan Vs. The Deputy Registrar of Co-operative Societies and The Special Officer, Vattur Co-operative Agricultural Bank,
Dr. E. Johnson and Others Vs. Salim Ali Centre for Ornithology and Natural History and Another,
In the grounds, the petitioners have stated that the orders for recovery of money is vindictive and not sustainable in law, since the enquiry proceedings were pending against the petitioners. It is also contended that without providing reasonable opportunity, the liability was fixed on the petitioners, erroneously by the respondent, though the uncounted coins were in the custody of the subsequent Manager for about 20 days, prior to the counting of coins and the coins were counted in the absence of the petitioners, hence, the alleged shortage of coins would not bind the petitioners.
Mr. R. Singgaravelan, learned counsel appearing for the petitioner submitted that even there are possibilities for shortage during the transit of the gunny bags containing coins, from Chennai to Neyveli. Without considering the vital aspects, the respondent has fixed the liability on the petitioners, which could be construed only as perverse finding and arbitrary orders.
A Constitutional Bench of the Hon''ble Supreme Court in Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, : Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, has held that the Society registered under the J. & K. Registration of Societies Act, which was established and carried on the administration and management of Regional Engineering College, Srinagar, was an instrumentality or agency of the State and the Central Governments and is an ''authority'' within the meaning of Article 12 for the purpose of maintaining a writ petition.
In Rajasthan State Electricity Board, Jaipur Vs. Mohan Lal and Others, the Hon''ble Supreme Court has held that the State, as defined in Article 12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interest of the people in the State.
As contended by the learned counsel appearing for the petitioners, the test laid down in Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, (cited supra) is relevant for the purpose of deter-mining whether an entity is an instrumentality or agency of the State: In this regard, all the tests are not required to be answered in the positive and one or two tests would suffice. It will depend upon a combination of one or more of the relevant factors depending upon the essentiality and overwhelming nature of such factors in identifying the real source of governing powers, if need be by removing the mask or piercing the veil disguising the entity concerned.
In Dr. E. Johnson and Others Vs. Salim Ali Centre for Ornithology and Natural History and Another, it has been held as follows:-
All the above details establish that the tests formulated in Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, as well as Pradeep Kumar Biswas''s case and, accordingly, I hold that the first respondent SACON is a "State" within Article 12 of the Constitution of India. Though the learned Additional Advocate General has pointed out that all the facts showed that the control is merely regulatory, for the reasons mentioned above, I am of the view that the cumulative facts led to an irresistible conclusion that SACON is a "State" within the meaning of Article 12 of the Constitution and that the orders passed by them are amenable to writ jurisdiction of this Court under Article 226 of the Constitution of India.
The decisions rendered by the Hon''ble Supreme Court and this Court, referred to above, would clearly establish that the respondent, Tamil Nadu Industrial Co-operative Bank Ltd., is an authority, as contemplated under Article 12, in order to maintain the writ petition under Article 226 of the Constitution of India.
It is argued by Mr. Diwan Kattuva, learned standing counsel appearing for the respondent that the petitioners are not entitled to invoke Article 226 of the Constitutional and maintain the writ petition, since alternative remedy of appeal is available.
Per contra, Mr. R. Singgaravelan, relying on the decision in K. Marappan Vs. The Deputy Registrar of Co-operative Societies and The Special Officer, Vattur Co-operative Agricultural Bank, rendered by a Five Judges Bench of this Court, submitted that the availability of alternative remedy is not a bar to maintain the writ petition. It is seen that the following propositions have been emerged in the decision, which reads as follows:-
(i) If a particular co-operative society can be characterised as a ''State'' within the meaning of Article 12 of the Constitution (applying the tests evolved by the Supreme Court in that behalf), it would also be ''an authority'' within the meaning and for the purpose of Article 226 of the Constitution. In such a situation, an order passed by a society in violation of the bye-laws can be corrected by way of writ petition, (ii) Applying the tests in Ajay Hasia it is held that the respondent society carrying on banking business cannot be termed as an instrumentality of the State within the meaning of Article 12 of the Constitution.
(iii) Even if a society cannot be characterised as a ''State'' within the meaning of Article 12 of the Constitution, even so a writ would lie against it to enforce a statutory public duty cast upon the society. In such a case, it is unnecessary to go into the question whether the society is being treated as a ''person'' or ''an authority'' within the meaning of Article 226 of the Constitution and what is material is the nature of the statutory duty placed upon it and the Court will enforce such statutory public duty. Although it is not easy to define what a public function or public duty is, it can reasonably said that such functions are similar to or closely related to those performable by the State in its sovereign capacity.
(iv) A society, which is not a ''State'' would not normally be amenable to the writ jurisdiction under Article 226 of the Constitution, but in certain circumstances, a writ may issue to such private bodies or persons as there may be statutory provisions which need to be complied with by all concerned including societies. If they violate such statutory provisions a writ would be issued for compliance of those provisions.
(v) Where a Special Officer is appointed in respect of a co-operative society which cannot be characterised as a ''State'' a writ would lie when the case falls under Clauses (iii) and (iv) above.
(vi) The bye-laws made by a co-operative society registered under the Tamil Nadu Cooperative Societies Act, 1983 do not have the force of law. Hence, where a society cannot be characterised as a ''State'', the service conditions of its employees governed by its bye-laws cannot be enforced through a writ petition.
(vii) In the absence of special circumstances, the Court will not ordinarily exercise power under Article 226 of the Constitution of India when the Act provides for an alternative remedy.
(viii) M. Thanikachalam and others Vs. Maduranthakam Agricultural Producers co-operative Marketing Society and others, is no longer good law, in view of the decision of the seven-Judges Bench of the Supreme Court in Pradeep Kumar Biswas case and the other decisions referred to here before.
In T.K. Ananda Sayanan Vs. The Joint Registrar co-operative Societies, Vellore Region and The Special Officer, Sinampattadai Primary Agricultural Co-operative Bank, a Full Bench of this Court held, referring K. Marappan Vs. The Deputy Registrar of Co-operative Societies and The Special Officer, Vattur Co-operative Agricultural Bank, and other cases, that a writ will lie even if a society cannot be characterised as a ''State'' within the meaning of Article 12 of the Constitution, when there is enforcement of public duty cast upon the society. It is argued on the side of the petitioner that there is no contra decision cited in favour of the plea of the respondent and hence, the writ petitions are legally sustainable.
It is a well settled position of law that when there is violation of fundamental rights, availability of alternative remedy would not be a bar for seeking the Constitutional remedy, by way of filing writ petition under Article 226 of the Constitution, as ruled by the Hon''ble Supreme Court of India. It has been made clear that seeking alternative remedy is only a rule of self-imposed restriction and not an absolute bar, that depends upon the facts and circumstances of each case.
Considering the facts and circumstances, in the light of the decisions rendered by the Hon''ble Apex Court, as discussed above in the Judgment, I am of the view that the writ petition is legally maintainable and the relief sought for is also sustainable in law.
Mr. R. Singgaravelan, learned counsel appearing for the petitioners argued that the petitioners could not be held responsible for the deficit of coins entrusted by G. Somasundaram, petitioner in W.P. No. 23260 of 2006 and W.P. No. 31644 of 2007 to Nazeer Hussain, his successor in office, Nazeer Hussain, since the uncounted coins were in the custody of the successor for about 20 days, prior to the counting process. However, no charge memo was issued against the subsequent manager, who had been the custodian of the gunny bags containing uncounted coins for about 20 days and the gunny bags containing coins, having been admittedly transferred from Chennai to Neyveli by the respondent and the same were counted for about 7 days by engaging 10 persons, in the absence of the petitioners.
In the aforesaid circumstances, as stated by the learned counsel for the petitioners, there could have been shortage or loss incurred in the uncounted coins, while the gunny bags were in the custody of the succeeding manager or while on transit from Chennai to Neyveli, for which the respondent cannot simply fix the liability on the petitioners and held that the charges were proved.
The respondent has not disputed the factum that the gunny bags containing uncounted coins in various denominations were not in the custody of the petitioners for about 20 days, after the date of handing over the charge by the petitioners herein to Nazeer Hussain, the subsequent Branch Manager of the respondent. During the transit of the said coins from Chennai to Neyveli, the petitioners were not asked to accompany the gunny bags containing the uncounted coins. Admittedly, the same were counted only in the absence of the petitioners for about one week, by engaging nearly 10 persons for counting the coins.
On the aforesaid circumstances, the finding of the respondent, holding that the charges levelled against the petitioners have been proved that they were responsible for the deficit coins would be construed only as a perverse finding, as the finding is not supported by acceptable legal evidence. There is a possibility (i) for the shortage of coins to the tune of Rs. 68,220/-, even prior to the handing over of the gunny bags containing uncounted coins by the petitioners to the succeeding Manager, Nazeer Hussain or (ii) the loss could have been occurred while the same were in the custody of the succeeding manager, Nazeer Hussain, after handing over of the charge or (iii) the loss could have been occurred during the transit from Chennai to Neyveli. As there are three possibilities for the shortage of coins, the respondent simply cannot fix the responsibility only on the petitioners, leaving the other officials, who took over the charge from the petitioners by receiving the gunny bags containing uncounted coins and transport the same from Chennai to Neyveli and counting there.
It is strange to note that why the coins were not weighed, as per the denominations of the coins, though the same could have been possible. It cannot be disputed that weighing the coins would not have taken much time, comparatively than counting the coins. Mr. R. Singgaravelan, learned counsel appearing for the petitioners contended that this type of shortage of coins are happening frequently in case of handing over huge amount of coins in Banking business. However, the management fixes responsibility on some officials against law. Hence, suitable guidelines be issued by the Court, while handing over uncounted coins, where there is no time to count the coins.
On the aforesaid circumstances, there must be legally acceptable procedure to be followed, based on certain guidelines. If the coins could not be counted, while handing over the charge, the same should be weighed, as per the denominations of the coins, accordingly, in the handing over charge papers, details of the net weight of the coins in each denomination shall be furnished and signed by both the officers, who hands over the charge and the other officer, who took over the same, so as to fix the responsibility properly. If net weight of the coins in denominations are given and if there is any deficit, while counting the coins, proper legal presumption could be drawn and the responsibility could be fixed on the officer, who was responsible for the deficit of the coins. Proper circular shall be issued by the respondent Bank in respect of taking over uncounted coins during the transfer of the Branch Manager/custodian of the coins.
The impugned order relating to this writ petition has been passed without properly fixing the liability on the petitioners and the finding of the enquiry officer could not be accepted, as the finding is not based on legally acceptable evidence and supported by any rationalia.
However, Mr. R. Singgaravelan, learned counsel appearing for the petitioners submitted that the first respondent is a retired manager, under the respondent, having daughters at the age of performing their marriage, hence, in spite of the fact that the liability fixed against the petitioners are not established by the respondent, in order to give a quietus to the dispute and for the purpose of getting pension benefits at an early date, G Somasundaram, the petitioner in W.P. No. 23260 of 2006 and W.P. No. 31644 of 2007 has voluntarily agreed for deducting the amount claimed by the respondent at Rs. 34,110/- from his retirement benefits. The said amount could be deducted in lumpsum from the retirement benefits payable to the said petitioner.
The petitioner, G.K. Dhananjaiyan in W.P. No. 23268 of 2006 and W.P. No. 31658 of 2007 has also given his consent voluntarily for deducting the amount at Rs. 34,110/-, from the annual increment arrears due to be paid to him. Both the petitioners have filed separate affidavit to that effect.
It is made clear, to meet the ends of justice, that the suspension period relating to the petitioners in both writ petitions shall be directed to be regularised. It is also made clear that the voluntary consent given by the petitioners for deducting the amount claimed by the respondent from the amount payable to them would not create any stigma in their service or in getting any other appointment, after their retirement.
The retirement benefits payable to the petitioner, G Somasundaram in W.P. No. 23260 of 2006 and W.R. No. 31644 of 2007 shall be disbursed, after deducting a sum of Rs. 34,110/-, within a period of four weeks from the date of receipt of a copy of this order and appropriate orders shall be passed so far as it relates to G.K. Dhananjaiyan, petitioner in W.P. No. 23268 of 2006 and W.P. No. 31658 of 2007. With the above observation, these writ petitions are disposed of. Consequently, connected miscellaneous petitions are closed. No order as to costs.