Madras High Court
K.Malaisamy vs The Joint Registrar Of Co-Opeative ... on 20 January, 2022
Author: S.Srimathy
Bench: S.Srimathy
W.P(MD)No.10932 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.01.2022
CORAM :
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P(MD).No.10932 of 2017
K.Malaisamy ... Petitioner
Vs.
1.The Joint Registrar of Co-opeative Society,
Theni.
2.The Co-operative Sub-Registrar/Secretary,
M.D.Spl.95, Jeyamangalam Primary Agricultural
Co-operative Credit Society, Jeyamangalam Post,
Periyakulam Taluk, Theni District.
3.The President,
M.D.Spl.95, Jeyamangalam Primary Agricultural
Co-operative Credit Society, Jeyamangalam Post,
Periyakulam Taluk, Theni District. ... Respondents
Prayer: Writ Petition filed under Article 226 of Constitution of India, to
issue a Writ of Certiorarified Mandamus, calling for the records
connected with the impugned order passed by the first respondent in his
proceedings Na.Ka.No.5218/2013 Sa.Pa. dated 26.12.2014 and the
consequential order of the first respondent in Letter No.Aathi.Mu.
2811/2016 Sa.Pa. dated 08.07.2016 and quash the same and consequently
direct the respondents to re-instate the petitioner into service with all
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W.P(MD)No.10932 of 2017
other monetary and service benefits in the light of the orders of the
Hon'ble High Court in CRL RC(MD) No.134 of 2016 dated 10.06.2016.
For Petitioner : Mr.S.Govindan
For R1 & R2 : Mr.N.Ramesh Arumugam
Government Advocate(Civil Side)
For R3 : Mr.R.Saravanan
ORDER
The petitioner was appointed as Secretary in the third respondent Society and had worked for more than 13 years. The petitioner was also given an additional charge of four other Societies. The petitioner was placed under suspension vide order dated 12.04.2013 passed by the second respondent alleging that the petitioner along with one Dharmarajan, Salesman were responsible for the shortage of weight of jewels of the third respondent society. The charge memo dated 29.04.2013 was issued and the shortage was quantified to the tune of Rs. 5 lakhs.
2. The Enquiry Officer was appointed and the Enquiry Report dated 24.07.2013 held the charges are proved. The petitioner submitted an explanation dated 23.08.2013, specifically denying that he is not responsible for the shortage of weight of jewels since the appraiser https://www.mhc.tn.gov.in/judis 2/8 W.P(MD)No.10932 of 2017 himself had confessed that he is wholly responsible for shortage of jewels, since he has cut some portions of the jewel and utilised for his personal benefits. Inspite of the explanation, the third respondent has passed an order of dismissal from service on 26.09.2013. The petitioner submitted before the first respondent to consider his case and pass an order invoking Section 153 of the Co-operative Societies Act. The said review application was rejected vide dated 26.12.2014. The petitioner has challenged the said order along with the consequential order dated 08.07.2016.
3. The Society has also initiated criminal proceedings in Crime No. 1 of 2013 under Section 403, 408, 420, 468, 477 (A), 430 (B) R/W, 34 PC on 20.11.2013, in the criminal case, the petitioner was shown as Accused No.2 and the Appraiser D. Saravanan as Accused No.1. The petitioner has filed CRL RC (MD) No.134 of 2016 before this Court and vide order dated 10.06.2016, this Court has discharged the petitioner from the criminal case. Based on the discharge order, the petitioner has approached the respondents for reinstate. Since the respondents denied, the petitioner has approached this Court.
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4. The first and third respondents have filed a counter, the contents in both the counters are same. In the counter, the respondents have stated that the Attender namely Dharmarajan and the petitioner are jointly and severally responsible and both of them are having key of the locker and hence if any deficiency is found in the number jewels kept in the safety locker both of them ought to be responsible and he has committed criminal act. Therefore, the petitioner being the Secretary having more responsibility has also committed dereliction of duties .
5. Heard the learned counsel for both the sides and perused the materials on record.
6. On perusing the records it is seen that the petitioner namely K. Malaisamy, the Attender Dharmarajan and appraiser namely D.Saravanan are the three persons involved in the alleged act. On further scrutiny, it is seen that the appraiser is directly involved in cutting the jewels and causing shortage of weight in the jewels. The appraiser D.Saravanan has confessed before the Enquiry Officer that he has cut the jewels and take the jewels for personal usage and the said appraiser has remitted back an amount of Rs.4,63,455/- for the shortage of jewels. The respondents have https://www.mhc.tn.gov.in/judis 4/8 W.P(MD)No.10932 of 2017 initiated action against the petitioner and the appraiser but they have not taken any action against the said Dharmarajan, therefore the petitioner alleged discrimination. On perusal of the Criminal proceedings, it is seen that the Court discharged the petitioner from the criminal case and the relevant portion is as follows:
6.A Person can be prosecuted based on incriminating materials disclosing commission of certain offences. Taking the materials at their face value, unrebutted, if they warrant a conviction, then it would be a case for charge, otherwise, it would be a case for discharge. To put it in other words, if there is prima facie case or there is ground to proceed further, A2 can be charged, otherwise not.
7.Thus, the allegation as against the revision petitioner is that he had failed to exercise proper supervision, he performed his duties negligently, he was careless and he has committed administrative lapses. This may be a ground for taking disciplinary action as against A2 as per his service Rules, but not criminal action under criminal law.
In the facts and circumstances, there is no ground to proceed further as against A2 for the offence alleged as against him. Thus, the impugned order passed by the learned Magistrate is unsustainable.
7. The allegation against the petitioner is he has not properly carried out his supervisory work and he has committed dereliction of https://www.mhc.tn.gov.in/judis 5/8 W.P(MD)No.10932 of 2017 duties. If it is dereliction of duty then the punishment is disproportionate punishment and the same is hitting the consciousness of the Court. Therefore, this Court is inclined to modify the punishment as stoppage of increment for six months without cumulative effect. The respondents are directed to reinstate the petitioner and grant continuity of service and other service benefits. Under “no work no pay”, the petitioner is not entitled to back wages for an earlier period.
8. With the above direction, the Writ Petition is disposed of. No costs.
20.01.2022 sn Index :Yes/No Internet : Yes/No Note :In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
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1.The Joint Registrar of Co-opeative Society, Theni.
2.The Co-operative Sub-Registrar/Secretary, M.D.Spl.95, Jeyamangalam Primary Agricultural Co-operative Credit Society, Jeyamangalam Post, Periyakulam Taluk, Theni District.
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sn W.P(MD)No.10932 of 2017 20.01.2022 https://www.mhc.tn.gov.in/judis 8/8