The proceedings of the first respondent dated 28.8.2015, along with the charge memo issued to the writ petitioner in proceedings dated 26.9.2015, are under challenge in this writ petition.
2. The writ petitioner was appointed as Salesman on 1.9.1983 in the second respondent-Co-operative Society and thereafter promoted to the post of Clerk in the year 1985. As such, he was posted as In-charge Secretary with effect from 20.5.1996 and regularly promoted to the post of Secretary with effect from 22.11.1999. On account of certain allegations, a charge memo was issued against the writ petitioner by the President of the second respondent-Co-operative Society in proceedings dated 26.9.2015.
3. The charges against the writ petitioner are extracted hereunder:-
1/ cupa fy;tpj;jFjp ,y;yhky; r';f epu;thfj;ij Vkhw;wp Kiwnflhf gjtp cau;t[ bgw;wjhf Fw;wr;rhl;L/ 2/ r';fj;jpd; Jiz tpjpfSf;F g[wk;ghft[k;. muR Miz kw;Wk; rl;l';fSf;Fg; g[wk;ghft[k; epu;thfj;ij Vkhw;wpa[k; Kiwaw;w tifapy; cau;t[ bgw;wjhd Fw;wr;rhl;L/ 3/ Kiwnflhf r';f Mtz';fis jpUj;jp Ke;ija epu;thfj;ij Vkhw;wp Kiwaw;w tifapy; gjtp cau;t[ bgw;wjhYk; kU';Tu; bjh/nt/T/f/r';fj;jpd; epjpapid Kiwnflhf Cjpak; r';fk; el;lkila[k; tifapy; gzpahw;wpajw;fhd Fw;wr;rhl;L.
4. The statement of allegations and imputations of misconduct are also furnished along with the copy of the impugned charge memo. Challenging the charge memo, the present writ petition is moved and the writ petitioner is further challenging the internal communication communicated by the first respondent to the second respondent in proceedings dated 28.8.2015.
5. The Registrars and the Subordinate Officials of the Co-operative Department, are exercising the powers and control under the provisions of the Tamil Nadu Co-operative Societies Act. In other words, the powers of the Registrar of Co-operative Society under the Act is delegated to the other Subordinates by way of notifications issued by the State.
6. Accordingly, the Deputy Registrar is also exercising certain powers of the Registrar under the provisions of the said Act. The internal communications or instructions, issued by the Registrar/Joint Registrar/Deputy Registrar of the Society, will not provide a cause to the writ petitioner to move a writ petition and these internal communications are challenged only in order to maintain the writ petition filed challenging the charge memo.
7. A larger Bench of this Court in the case of K.Marappan vs. Deputy Registrar of Co-Operative Societies, Namakkal Circle, Namakkal [(2006) 4 CTC 689 (FB)], held that no writ can be entertained against the Co-operative Societies and the Co-operative Societies are not a State, within the meaning of
Article 12 of the Constitution of India. When a Co-operative Society is not a State, within the meaning of
Article 12 of the Constitution of India, the remedy left open to the aggrieved employees of the Co-operative Society is to approach the Competent Authorities under the provisions of the Tamil Nadu Co-operative Societies Act.
8. For instance, the remedies are available for the employees under Sections 153 and 154 of the Tamil Nadu Co-operative Societies Act. Thus, the employees of the Co-operative Societies have to exhaust the remedies available under the provisions of the Act and thereafter they can file the writ proceedings under
Article 226 of the Constitution of India.
9. The employees, in order to overcome the legal principles laid down by the larger Bench of this Court in K.Marappan case (cited supra), are moving this writ petition just by enclosing the internal communications issued between the Co-operative Department Officials and the Society.
10. These internal communications are challenged only for the purpose of maintaining this writ petition and to overcome the legal principles settled by the larger Bench of this Court in K.Marappan case (cited supra). This Court cannot permit such an approach of the litigants in order to circumvent the legal principles laid down and settled by the larger Bench of this Court.
11. Thus, it is clear that a Co-operative Society is not a State, within the meaning of
Article 12 of the Constitution of India and the position was made clear by the judgment of the High Courts and the Honourable Supreme Court.
12. It is the question of exhausting the alternative remedy and it is not the case as if the employees have no remedy. It is left open to the aggrieved employees of the Co-operative Society to exhaust the remedies available under the Statute and thereafter move this Court under
Article 226 of the Constitution of India.
13. Contrarily, they are simply filing the writ petitions, without exhausting the remedies available and by challenging the internal communications sent between the Registrar and the Management of the Co-operative Society. Such internal communications are privileged in nature and the same has been issued for the purpose of instructing the management of the Co-operative Society to initiate action or to do something or not to do something. If the instructions are implemented and an order is passed, then only the cause will arise for the employees to adjudicate the matter under law.
14. Thus, the Court is of the opinion that the internal communications sent between the Registrar and the management of the Co-operative Society, will not provide any cause to the employees to approach this Court under
Article 226 of the Constitution of India. More specifically, the same are filed only to overcome and circumvent the legal principles laid down by the larger Bench of this Court in the case of K.Marappan (cited supra).
15. In the case on hand, it is the charge memo which is under challenge in this writ petition. A charge memo cannot be challenged nor a writ can be entertained against a charge memo in a routine manner. On the initiation of the disciplinary proceedings, it is for the delinquent to submit his explanations/objections and participate in the enquiry proceedings. In order to prove his innocence, a writ against the charge memo cannot be entertained in a routine manner.
16. Further, the charge memo can be challenged only on the ground of jurisdiction or if allegation of mala fides are raised. Even in case of raising the allegation of mala fides, the authorities against whom such an allegation is raised to be implaed as a party in the writ proceedings in his personal capacity. In the absence of any of these grounds, no writ can be entertained challenging the charge memo.
17. Thus, the present writ petition filed, challenging the charge memo along with the internal communications between the Deputy Registrar of the Co-operative Society and the President of the Co-operative Society, cannot be entertained. It is left open to the writ petitioner to submit his explanations/objections on the charge memo and participate in the process of enquiry in order to prove his innocence before the Disciplinary Authority.
18. In this view of the matter, the writ petition is liable to be dismissed, both on the ground of merits as well as on the ground of maintainability. Accordingly, the writ petition stands dismissed as not maintainable. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are also dismissed.
11-09-2017 Svn Index : Yes/No Speaking /Non-speaking order To The Deputy Registrar of Co-operative Societies, Cuddalore Circle, Cuddalore, Cuddalore District.
S.M.SUBRAMANIAM, J.
Svn W.P.No.36457 of 2015 11-09-2017