M. Thanigaivelu vs The Joint Registrar of Co-operative Societies

F.M. Ibrahim Kalifulla, J.—Petitioner seeks to challenge the order of the first respondent dated 9.10.2000 bearing

No.Na.Ka.607/2000.A3 passed u/s 153 of the Tamil Nadu Co-operative Societies Act and to quash the same and direct the second respondent

to re-instate the petitioner.

By the impugned order dated 9.10.2000, the first respondent has upheld the order of dismissal dated 24.2.99 passed by the second respondent

against the petitioner. The petitioner was employed as Special Grade Supervisor in the second respondent-Society. He was issued with a charge

sheet dated 20.3.98 in which two charges were levelled against him. The charges were that he failed to perform his duties and thereby brought

disrepute to the Society and that while disbursing the loans to the Members part of the loans were misappropriated by forging the signatures of the

Members. The petitioner submitted his explanation dated 18.4.98 denying the charges. Thereafter, a domestic enquiry was held. Based on the

findings of the Enquiry Officer dated 21.5.1999, the petitioner was issued with the second show cause notice dated 5.2.99. The petitioner

submitted his explanation to the second show cause notice on 8.2.99. Not satisfied with the petitioner''s explanation, the order of dismissal came to

be passed on 24.2.99. The petitioner preferred a Revision before the first respondent on 31.5.200 and also filed additional grounds on 12.6.2000.

The first respondent has passed the impugned order dated 9.10.2000 holding that the charges as held proved against the petitioner in the enquiry,

were acceptable and therefore, the order of dismissal cannot be interfered with.

Assailing the said order of the first respondent, Mr. Kamatchi Sundaresan, learned counsel for the petitioner raised two contentions, namely,

that the first respondent while exercising his powers as Revisional Authority u/s 153 of Tamil Nadu Co-operative Societies Act, is bound to

examine the matter in detail. According to the learned counsel , a perusal of the impugned order would disclose that the contentions of the

petitioner were rejected in an abrupt fashion while upholding the order of dismissal passed by the second respondent. It was then contended that

the first respondent relied upon the surcharge proceedings issued against the petitioner while upholding the order of dismissal, which proceedings

were later in point of time when compared to the order of dismissal and that the said proceedings relied upon by the first respondent were passed

behind the back of the petitioner. According to the petitioner, the surcharge proceedings were not even marked before the first respondent and

that the said proceedings have been challenged by the petitioner before the Tribunal and the operation of such proceedings having been stayed, the

reliance placed upon by the first respondent without giving the due opportunity to the petitioner would vitiate the order impugned in the writ

petition.

Learned Special Government Pleader appearing on behalf of the first respondent while referring to the counter affidavit filed by the first

respondent contended that a detailed analysis was made by the first respondent while passing the order impugned in the writ petition and the same

does not warrant any interference by this Court.

Having heard the learned counsel, I am convinced that the order impugned in the writ petition cannot be sustained.

Learned counsel for the petitioner, in fact, brought to my notice one of the loan disbursement receipts issued by the second respondent-Society,

which contains, the signature of the member, who received the cheque, and also the signature of the Secretary or the Managing Director, as the

case may be, in whose presence, the cheques were disbursed to the concerned loan applicants. In these circumstances, when the order of the first

respondent is perused, I find that the stand of the petitioner in regard to the charges have been considered and rejected without proper discussion

as to the defence taken on behalf of the petitioner. According to the petitioner, during the relevant point of time, he underwent an open heart

surgery and therefore, initially he was assigned lighter jobs while at a later point of time, he was assigned the job of securing more customers for

disbursement of loans in order to generate more loan transactions. According to the petitioner, while such assignments were given to various other

employees, who also did not reach their targets, the petitioner alone was singled out, while others were left out. It was the further stand of the

petitioner that in spite of his ill-health, he was able to reach the target to the maximum extent possible, and therefore, he ought not to have been

proceeded against for the said alleged conduct of non-performance. While dealing with the said issue, the first respondent has not given any finding

as regards the contention that others were left out. As regards the ill-health pleaded by the petitioner, the first respondent without discussing the

material evidence available on record, had, in one sentence held that the petitioner''s stand was conflicting with each other. I am unable to sustain

such an approach of the first respondent in dealing with the stand of the petitioner, especially when the petitioner has lost his job and fighting for his

livelihood.

Further, as regards the allegation of mis-appropriation, the first respondent has not chosen to refer to the material documents such as loan

disbursement receipts which contains not only the signature of the member but also the signature of the concerned authority in whose presence, the

cheques came to be disbursed as could be seen from the said receipt placed before the Enquiry Officer. When that be so, the first respondent

should have made a thorough scrutiny of material papers before reaching any conclusion, that still the petitioner could be held responsible for not

disbursing the full loan amount. Unfortunately, no such exercise has been done by the first respondent.

On the other hand, as rightly pointed out by the learned counsel for the petitioner, the surcharge proceedings which were dated 30.4.99, (i.e)

long after the order of dismissal dated 24.2.99, has been relied upon to hold that that would clinch the charge levelled against the petitioner.

Apparently, the first respondent had taken up the role of the employer while dealing with the Revision preferred by the petitioner. While dealing

with the Revision, the first respondent failed to realise that he should make an independent approach to the issue raised before him in the Revision

while dealing with the Revision in which the the challenge was to the order of dismissal passed against the petitioner. Instead, he proceeded as

though he was the employer himself and with that wrong notion, the whole approach has been made, which has resulted in the passing of the

impugned order. When the petitioner has raised specific ground in the affidavit filed in support of the writ petition, that surcharge proceedings was

not even marked before the first respondent in any of the hearing dates, the said factor has not been refuted at all in the counter-affidavit filed by

the first respondent. In fact, the counter affidavit has been been filed by the very same officer who has passed the order impugned in this Writ

Petition. Therefore, it could not have escaped his attention while dealing with the point raised by the petitioner in the affidavit. In such circumstance,

it will only lead to the conclusion that the surcharge proceedings relied upon by the first respondent was not part of the material records in the

Revision Proceedings, in which event, the reliance placed upon by the first respondent to reject the petitioner''s revision, cannot be countenanced.

In any event, when it is pointed out by the petitioner that the said surcharge proceedings have been challenged by way of an appeal before the

Tribunal and that the operation of the said proceedings have been stayed, if only the first respondent had put the petitioner on notice about his idea

of relying upon the said proceedings, the petitioner would have had an opportunity to show that the said proceedings have been stayed by the

Tribunal and therefore, the same could not have been relied upon. By such conduct of the first respondent in relying upon the proceedings behind

the back of the petitioner, the petitioner was really put to serious prejudice and therefore, in every respect, the order of the first respondent is faulty

and the same cannot be allowed to remain. Therefore, while setting aside the order impugned in this writ petition, the first respondent is directed to

hold the enquiry afresh and after giving specific marking of all the material documents placed before him and after giving due opportunity to the

petitioner as well as the second Respondent, pass fresh orders within six months from the date of receipt of copy of the order.

With the above directions, the writ petition stands allowed. No costs.