Madras High Court
S.Kumarakannan vs The Deputy Registrar on 19 March, 2019
Author: Abdul Quddhose
Bench: Abdul Quddhose
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.03.2019
CORAM
THE HONOURABLE MR.JUSTICE. ABDUL QUDDHOSE
W.P(MD).No.8996 of 2009
and
M.P(MD)No.2 of 2009
S.Kumarakannan : Petitioner
Vs.
1.The Deputy Registrar,
Co-Operative Society,
Tuticorin.
2.The Special Officer,
Co-Operative Society,
Tuticorin. : Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of
India to issue a writ of certiorari, to call for the records relating to the
impugned notice issued by the 1st respondent in Na.Ka.
275/2009/Sa/Pa, dated 30.04.2009 and quash the same in sofar as
the petitioner concerned.
For petitioner : Mr.Mohan Kumar
For Respondents : Mr.D.Muruganantham,
Additional Government Pleader
http://www.judis.nic.in
2
ORDER
The instant Writ Petition has been filed challenging the show cause notice dated 30.04.2009, issued by the first respondent under Section 87(1) of the Tamil Nadu Co-operative Societies Act,1983 in his proceedings Na.Ka.275/2009/Sa/Pa.
2.It is the case of the petitioner that he was a Head Cleark at Sub Court, Kovilpatti and he retired on superannuation on 31.10.2006. Under the impugned show cause notice dated 30.04.2009, issued by the first respondent under Section 87(1) of the Tamil Nadu Co- operative Societies Act 1983, [hereinafter referred to as 'the Act'], the petitioner has been charged for misappropriation of funds, while he was in service.
3.According to the petitioner, the first respondent has issued the impugned show cause notice without jurisdiction, since under the first proviso to Section 87 of the Act, any legal action can be initiated by the respondent within a period of 7 years from the date of any act or omission committed by the petitioner. In the instant case, since the petitioner has retired from service on 31.10.2006, the action initiated under Section 87(1) of the Act on 30.04.2009 by the impugned show http://www.judis.nic.in 3 cause notice is beyond the prescribed period as stipulated under the first proviso to Section 87 of the Act. According to the petitioner, the first proviso is mandatory and beyond the said period prescribed therein, no action can be initiated. In such circumstances, he has filed this Writ Petition challenging the impugned show cause notice.
4.Heard Mr.G.Mohan Kumar, learned counsel for the petitioner and Mr.D.Muruganantham, learned Additional Government Pleader for the respondents.
5.The learned counsel for the petitioner submitted that it is settled law that the first proviso to Section 87 of the Act is mandatory and therefore, if at all any action can be instituted under Section 87(1) of the Act, the respondent can initiate action only within a period of 7 years from the date of any act or omission committed by the petitioner. In the instant case, since the petitioner has retired from service on 31.10.2006, the action initiated by the first respondent on 30.04.2009, as per the impugned show cause notice is well beyond the prescribed period as contemplated under the first proviso to Section 87 of the Act. Therefore, according to him, the first respondent has issued the impugned show cause notice without jurisdiction. http://www.judis.nic.in 4
6.The learned counsel for the petitioner drew the attention of this Court to the following authorities.
(a) R.Ganapathy Vs. Deputy Registrar of Co-operative Societies, (Housing), Tirunelveli and Another reported in (2009) 6 MLJ 1066.
(b) A.Abdul Hameed Vs. Deputy Registrar of Co-operative Societies, Cuddalore and others reported in (2010) 5 MLJ 251.
(c) H.Rajasekar and others Vs. Deputy Registrar of Co- operative Societies and others, Krishnagiri reported in (2009) 4 Law weekly 427.
7.According to the learned counsel for the petitioner, in all the aforesaid decisions, the learned Single Judges of this Court have consistently held that the first proviso to Section 87 is mandatory and therefore, any legal action can be taken against any delinquent employee only within a period of 7 years from the date when the act or omission was committed by the said delinquent employee. But in the instant case, legal action has been initiated beyond the period of 7 years and therefore, the respondent has issued the impugned show cause notice without jurisdiction and it has to be set aside. http://www.judis.nic.in 5
8.Per contra, the learned Additional Government Pleader for the respondent would submit that the petitioner has misappropriated the funds belonging to the Co-operative Society to the tune of Rs.32,527/-. It is also his case that both the provisos under Section 87 of the Act are only directory and not mandatory. Being revenue loss to the Co-operative Society due to the misappropriation of funds committed by the petitioner, both the provisos under Section 87 ought to be interpreted by the Courts as only directory and not mandatory.
9.The learned Additional Government Pleader for the respondent referred to the following Division Bench judgment of this Court in the case of S.Ramadvei Vs. Special Officer, Ambur Co-operative Sugar Mills, Vadapuduper, Vellore District and Others reported in (2016) 6 MLJ 485. According to the learned Additional Government Pleader, since the case involves misappropriation of public funds, as rightly held by the Division Bench judgment referred to supra, the expression 'shall' in the proviso should be read as 'may'. Therefore, according to the learned Additional Government Pleader for the respondent, the action initiated by the respondent under Section 87(1) of the Act against the petitioner is not barred by the law of limitation. http://www.judis.nic.in 6 Discussion:
10.There is a difference between the first proviso and the second proviso to Section 87(1) of the Act. The language employed in the first proviso is negative in nature whereas the language employed in the second proviso is affirmative in nature. In the first proviso, it starts with the expression 'no action', whereas under the second proviso, there is no such expression.
11.Interpreting the first and second provisos to Section 87(1) of the Act, the learned Single Judges of this Court in the reported decisions referred to by the learned counsel for the petitioner have consistently held that the first proviso is mandatory and the second proviso is only directory. This Court is in agreement with the said decisions and is also of the view that the legislature would have used a similar affirmative language in the second proviso also if it was to be made mandatory.
12.The Division Bench of this Court relied upon by the learned Additional Government Pleader reported in (2016) 6 MLJ 485 has also held that the second proviso to Section 87(1) is directory. But the issue whether the first proviso to Section 87(1) of the Act is http://www.judis.nic.in 7 mandatory or not was not the subject matter of discussion in the said Division Bench judgment. Therefore, the judgment relied upon by the learned Additional Government Pleader for the respondents is not applicable for the facts of the instant case.
13.For the foregoing reasons, the impugned show cause notice dated 30.04.2009 has been issued by the respondent without jurisdiction as it has been issued beyond the prescribed period of 7 years stipulated under the first proviso to Section 87(1) of the Tamil Nadu Co-operative Societies Act 1983. Accordingly, the impugned show cause notice dated 30.04.2009, is hereby quashed and the Writ Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
19.03.2019 Index: Yes/No Internet : Yes/No das To
1.The Deputy Registrar, Co-Operative Society, Tuticorin.
2.The Special Officer, Co-Operative Society, Tuticorin.
http://www.judis.nic.in 8 ABDUL QUDDHOSE,J.
das W.P(MD).No.8996 of 2009 and M.P(MD)No.2 of 2009 19.03.2019 http://www.judis.nic.in