Madras High Court
S.Mahalingam vs The Registrar Of Co-Operative ... on 9 August, 2016
Author: B. Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 09.08.2016
CORAM
THE HONOURABLE MR.JUSTICE B.RAJENDRAN
Writ Petition No.8473 of 2007
S.Mahalingam .. Petitioner
Versus
1. The Registrar of Co-operative Societies,
K.V.N. Maligail,
E.V.R. Periyar Salai,
Kilpauk, Chennai 600 010.
2. The Joint Registrar of
Co-operative Societies,
Sivaganga Region at Sivaganga.
3. The Deputy Registrar of
Co-operative Societies,
Karaikudi. .. Respondents
Writ Petition filed under Article 226 of the constitution of India to issue a Writ of Certiorarifed Mandamus to call for records relting to the third respondent proceedings made in Na.Ka.445/88 Pa.Tho dated 04.04.1988 and the consequential order of the second respondent made in No.Na.Ka.No.8575/2002 Patho dated 29.10.2002, to quash the same and consequently direct the respondents to reinstate the applicant with all service benefits including backwages and continuity of service etc.
For Petitioner : Mr.L.Chandrakumar
For Respondents : Mr.L.P.Shanmugasundaram
O R D E R
This Writ Petition has been filed to call for records relating to the proceedings of the third respondent made in Na.Ka.445/88 Pa.Tho dated 04.04.1988 and the consequential order of the second respondent made in No.Na.Ka.No.8575/2002 Patho dated 29.10.2002, quash both the orders and consequently direct the respondents to reinstate the petitioner with all service benefits including backwages and continuity of service etc.
2. The petitioner was appointed as Junior Inspector of Co-operative Societies on 28.10.1985 through employment exchange and posted at Karaikudi. The petitioner was directed to work under the administrative control of the Deputy Registrar of Cooperative Societies. Subsequently, the petitioner was appointed as Special Officer of the Thammampattu Primary Agricultural Cooperative Bank group as per the proceedings dated 16.12.1985 and on the same day he joined the post. While so, by proceedings dated 29.10.1987, the petitioner was placed under suspension pending an enquiry under Section 65 of the Tamil Nadu Cooperative Societies Act. The charge against the petitioner was framed under Section 17 (b) of the Tamil Nadu Civil Services Rules. The charge against the petitioner is that he has committed serious irregularities in issuing IRDP loans in T. Pudupatty Primary Cooperative Bank while working as the Special Officer of the Primary Agricultural Cooperative Bank along with two primary Agricultural Cooperative Banks. The petitioner submitted his explanation denying the charges. Notwithstanding the same, without conducting any enquiry, the petitioner was removed from service on 04.04.1988. Challenging the same, the petitioner filed WP No. 4612 of 1988 before this Court which was transferred and number as T.A. No. 238 of 1992 before the Tribunal. Pending original application, the Deputy Registrar of the Cooperative Societies resorted to initiate surcharge proceedings in his proceedings dated 15.06.1990 against the petitioner. On conclusion of the surcharge proceedings, criminal proceedings were also initiated against the petitioner in C.C. No. 79 of 1992 (CCIW) on the file of Judicial Magistrate, Devakottai. By judgment dated 18.11.1997, the petitioner was acquitted of all the charges. As against the surcharge proceedings, the petitioner has filed C.M.A. (CS) No. 3 of 1995 on the file of Principal District Judge, Sivagangai and by Judgment dated 03.09.1996, the petitioner was discharged from the surcharge proceedings as well. On the basis of the judgment of acquittal passed by the Criminal Court as well as the judgment passed in CMA (CS) No. 3 of 1995, the petitioner submitted a representation to the Joint Registrar, Sivagangai praying for reinstatement. In the meantime, the petitioner has withdraw the T.A. No. 238 of 1992 (WP No. 4612 of 1988) seeking to quash the order of penalty. On the basis of the same, in response to the representation of the petitioner, the third respondent, by order dated 29.10.2002 has stated that since the petitioner has withdrawn the T.A. No. 238 of 1992, challenging the order of removal, his claim for reinstatement cannot be considered by the department. Challenging the order dated 29.10.2002, the petitioner has filed O.A. No. 6421 of 2002 before the Tribunal which stood transferred to this Court and re-numbered as WP No. 8473 of 2007.
3. The learned counsel for the petitioner would submit that the order of removal was passed on the basis of surcharge proceedings as well as criminal proceedings initiated against the petitioner. The petitioner was given a clean chit in both the aforesaid proceedings. When once the criminal proceedings culminated in acquittal, as per Fundamental Rule 54 (10) he is entitled for regularising the period of suspension or removal as the case may be and he is eligible for all consequential benefits. While so, the third respondent, in the impugned order has only stated that since the petitioner has withdraw the T.A. No. 238 of 1992 which was filed challenging the order of removal, his claim for reinstatement cannot be considered. Such a reasoning assigned by the third respondent is without application of mind to the statutory provision as well as the facts of the case. Further, the petitioner has withdrawn T.A. No. 238 of 1992 by making an endorsement that it is being withdrawn without prejudice to his rights. Notwithstanding such submissions, the learned counsel for the petitioner would contend that in the event of this Court giving a direction for reinstatement of the petitioner, the petitioner is prepared to forgo all the backwages.
4. The learned counsel for the respondent filed a detailed counter mainly contending that while withdrawing T.A. No. 238 of 1992, the petitioner has not reserved his liberty and therefore he has no right to seek for reinstatement.
5. Heard the learned counsel for the petitioner and the learned Special Government Pleader for the respondents. On a careful perusal of the entire proceedings, it is seen that the petitioner, who has been alleged to have misused and abused his official position has been given a clean chit both in the criminal proceedings as well as the surcharge proceedings initiated against him. Both the proceedings have become final and there was no appeal filed. In this background, when we analyse the order dated 04.04.1988 removing the petitioner from service, it is stated as follows:-
@fwitkhLfs; bfhs;Kjy; bra;ag;gl;lhfr; brhy;yg;gLk; njjpapypUe;J 6 kh';fSf;Fs; fld;fs; jpUg;gpr; brYj;jpapUg;gjpypUe;J ,th;fs; fwit khLfs; itj;J gad;gLj;jp mjd; K:yk; fld;fsis jpUg;gpr; brYj;jtpy;iy/ Mfnt muR khepaj;ij jtwhfg; gad;gLj;j jdp mYtyh; jpU/v!;/kfhyp';fk; mjpfhuj;ij Jc;&gpunahfk; bra;J Jiz g[hpe;jpU;fpfwhh;/
6. Further, the report of the Officer, which was relied on by the third respondent in the order dated 04.04.1998 is vague and no reason has been given therein. The relevant portion is extracted hereunder.
jpU/v!;/kfhyp';fk;. ,speiy Ma;thsuhf ntiy tha;g;g[ mYtyfk; K:yk; xU bghWg;ghd lgjtpapy; peakpf;fg;gl;Lk;. JdJ bghWg;ig czuhJ. Murpd; xU';fpize;j Cuf tsh;r;rpj;j jpl;ljpd; fPH; ViH kff;spd; thH;it tskhf;Fk; xU jpl;lj;jpd; gyid, flikia Kiwahf bra;aj;jtwpajd; K:yKk;. Mjpfhu Jc;&gpunahfk; K:yKk; milatplhky; bra;Jtpl;lhh;/ nkYk; ,th; bfhs;Kjy; fkpl;o cWg;gpdh; vd;w hPjpapYk;. XG';fPd';fis jl;o nfl;fhJ. Mtw;wpw;F cle;ijahf ,Ue;Js;shh;/ ,J khbgUk; Fw;wkhFk;/ ,jw;F kp mghpkpjkhd jz;lid tH';fg;gl ntz;Lk;/ vdpDk; mtuJ ,s tajpidf; fUjp fUizapd; mog;gilapy; ,sepiy Ma;thsh; jpU/v!;/khfyp';fj;ij 4/4/1988 gp/g/ Kjy; muR gzpapypUe;J ePf;fp (Removed from Government Service) cj;jutpglgLfpwJ/
7. Further, it is stated that the petitioner has withdrawn the T.A. No. 238 of 1992 with an endorsement that he is withdrawing the Application without prejudice to his contentions. Unfortunately, there is no records produced to show that such an endorsement was made by the petitioner. According to the counsel for the petitioner, at this point of time, he could not produced any records to show that the T.A. No. 238 of 1992 has been withdrawn only after making an endorsement that the withdrawal of the application is without prejudice to his rights especially when the Tribunal has been abolished and closed. In any event, when we analyse the present impugned order, the only reasoning given is that there is no records produced to show that the petitioner has withdrawn T.A. No. 238 of 1992 by making an endorsement to the effect that it is being withdrawn without prejudice to his right and also on the ground of delay. As rightly pointed out by the learned counsel for the petitioner, the third respondent failed to take into account the Fundamental Rules 54 which provides that whenever a government servant is acquitted by a competent Criminal Court, he is entitled for reinstatement with all consequential benefits. At any rate, merely because there is no record produced by the petitioner to show that T.A. No. 238 of 1992 has been withdrawn only after making an endorsement to the effect that it is being withdrawn without prejudice to his right, the petitioner cannot be penalised.
8. As on date, the petitioner is 53 years and taking into account the submission of the learned counsel for the petitioner that the petitioner is willing to forgo the backwages if he is reinstated and the fact that the petitioner was acquitted by the Criminal Court in the criminal proceedings and also successfully challenged the surcharge proceedings against him in C.M.A. No. 3 of 1995, this Court is inclined to grant relief in favour of the petitioner subject to the petitioner filing an affidavit to the effect that he is not claiming any backwages upon reinstatement.
9. Accordingly, the impugned order is set aside and the writ petition is allowed. No costs. The respondents are directed to reinstate the petitioner in service with all consequential benefits attached to the post without back wages. Consequently, connected Miscellaneous Petitions are closed.
09.08.2016
Index : Yes/No
Internet : Yes/No
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To
1. The Registrar of Co-operative Societies,
K.V.N. Maligail,
E.V.R. Periyar Salai,
Kilpauk, Chennai 600 010.
2. The Joint Registrar of
Co-operative Societies,
Sivaganga Region at Sivaganga.
3. The Deputy Registrar of
Co-operative Societies,
Karaikudi.
B. RAJENDRAN, J
vrc
WP No.8473 of 2007
09.08.2016
http://www.judis.nic.in