Madras High Court
S. Ulaganathan And A.V. Kumar vs The Joint Registrar Of Cooperative ... on 4 April, 2003
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. By consent of all the parties the writ petitions themselves are taken up for disposal. Since the issue raised in both the writ petitions is one and the same, they are being disposed of by the following common order. The petitioners are challenging the order of the third respondent dated 8-2-2003 terminating them from service.
2. The petitioner in W.P. No. 4680/2003 was appointed as Clerk in Thiruvalankadu Primary Agricultural Coop. Bank Limited, third respondent herein with effect from 25-02-1975 and he was subsequently promoted as Secretary with effect from 18-11-1983. The petitioner in W.P. No. 5288/2003 was appointed as Fertilizer Salesman in the third respondent Bank on 01-12-1985 and was discharging his duties as such for the past several years. Due to irregularities in handling of jewels, both the petitioners were initially suspended and disciplinary action was taken. However, after some time, the third respondent closed the enquiry and revoked the suspension order and allowed them to join duty. Meanwhile, a criminal case has been registered against the petitioners before the Judicial Magistrate-No. I, Mayiladuthurai. After trial, the learned Magistrate released the petitioners under sections 3 and 4 of the Probation of Offenders Act, by his judgment dated 10-01-2003. Consequent on the judgment of the criminal Court, the Special Officer of the third respondent issued a show cause notice why both of them should not be removed from service in view of disqualification attracted as per Rule 149 (4) of Tamil Nadu Cooperative Societies Rules, 1988 read with By-law No. 5 (III) of the third respondent bank. The said order was challenged in a writ proceedings. Ultimately the same was disposed of with a direction to the petitioners to submit their explanation to the show cause notice. It is stated that without considering the direction of this Court as well as the explanation offered, the third respondent passed the impugned orders terminating them from service. Questioning the said action, both the petitioners preferred the above writ petitions.
3. The third respondent filed a counter affidavit highlighting the involvement of the petitioners in the misappropriation of the bank's fund, the judgment of the Criminal Court which released them under the provisions of the Probation of Offenders' Act and justifying the present action taken against the petitioners.
4. Heard Mr. C. Prakasam, learned counsel for the petitioner and Mr. S.V. Durai Solaimalai, learned Government Advocate for respondents.
5. The only point for consideration in these writ petitions is, whether any disqualification attached to the conviction even after release under sections 3 and 4 of the Probation of Offenders' Act?
6. The order of the learned Judicial Magistrate-No. I, Mayiladuthurai in C.C. No. 957/2002 dated 10-01-2003 shows that considering the grievance of the petitioners/accused therein, their antecedents, family back ground etc., both of them were ordered to be released under the provisions of the Probation of Offenders Act. It is further seen that on the basis of the request made by the petitioners, the learned Magistrate directed the Probation Officer to enquire and submit a report regarding their plea. The Probation Officer after a thorough enquiry submitted his report. After considering the same, the learned Magistrate has arrived at the following conclusion:
Mr. C. Prakasam, learned counsel for the petitioners by pointing out the above conclusion of the learned Magistrate and in view of the fact that both the petitioners were released under the provisions of the Probation of Offenders Act, there is no disqualification attached to the conviction and the third respondent is not justified in invoking Rule 149 (4) of the Tamil Nadu Co-operative Societies Rules. It is relevant to refer Rule 149 (4) and By-law No. 5 (III):
"Rule 149 (4):- No person shall be appointed to the service of any society, if he has been found guilty of any offence involving moral turpitude. An employees shall cease to be as such in a society if he is found guilty of any such office.
Special By-law No. 5 (III):- No person shall be appointed to the service of the society/bank if he has been found guilty of any offence involving moral turpitude. An employees shall cease to be as such in the society/bank if he is found guilty of any such office."
He also contended that the above referred rule and by-law cannot over-ride the provisions of the Probation of Offenders Act, and that the impugned order of termination is bad. In support of his claim, he very much relied on a decision of mine in P. SUBRAMANIAN, P. v. JOINT REGISTRAR OF CO-OP. SOCIETIES, . In an identical circumstance, after considering the charges made, the provisions of the Tamil Nadu Cooperative Service Rules, by-laws, Sections 3 and 12 of the Probation of Offenders Act, 1958 and various decisions of the Supreme Court and other High Courts relating to the same subject, I have held as follows: (para 15) "15?? Though Section 12 of the Probation of Offenders Act does not preclude the department from taking action against his misconduct leading to the offence or his conviction thereon as per law and as observed by Their Lordships in DIVISIONAL PERSONNAL OFFICER v. T.R. CHALLAPPAN, , the conviction of a delinquent employee simpliciter without anything more will not result in his automatic dismissal or removal from service. Added to this, the learned Sessions Judge in order to protect his services, released him under Section 3 of the Probation of Offenders Act?."
After holding so, similar impugned proceedings of the first respondent dated 13-3-98 was quashed and necessary direction was issued to the respondents to reinstate the petitioners in service with all service benefits.
7. In our case, I have already referred to the conclusion of the learned Magistrate releasing both the petitioners under Sections 3 and 4 of the Probation of Offenders Act. I have also referred to the procedure followed by the learned Magistrate before passing such order. In my decision referred to above, I have considered similar views expressed by other learned Judges of this Court as well as the Supreme Court holding that though Section 12 of the Probation of Offenders Act does not preclude the department from taking action against the misconduct of the person concerned leading to the offence or his conviction thereon as per law, the conviction of a delinquent employee simpliciter without anything more will not result in his automatic dismissal or removal from service. The impugned proceeding in both the writ petitions shows that the order of termination was issued merely based on the order of the Judicial Magistrate. Though the third respondent is entitled to proceed with the departmental enquiry, the fact remains that after the order of the learned Magistrate, no such enquiry was conducted and the present order of termination was issued solely based on the order made in the criminal proceedings which cannot be sustained. Though the learned Government Advocate for the respondents elaborately argued with reference to the steps taken by them, in the light of the factual and legal position referred to above, the impugned proceedings of the third respondent dated 8-2-2003 cannot be sustained. Accordingly it is quashed.
8. Net result, both the writ petitions are allowed. The third respondent Bank is directed to reinstate the petitioners in service with all service benefits and without salary and other monetary benefits for the period in which they were not in service, within a period of two weeks from the date of receipt of a copy of this order. No costs. Connected WPMPs., are closed.