Heard both sides. The petitioner, who was formerly a Secretary of the second respondent Primary Agricultural Co-operative Bank (for short PACB), has come forward to challenge the order passed by the first respondent, dated 21.8.2009. In the said order, the petitioner was dismissed from service with effect from 31.1.2003. It was also stated that since the petitioner had reached the age of superannuation by 30.6.2005, he will not be granted any terminal benefits. It was further stated that if the petitioner so choses, he can file a petition before the Registrar.
2.The contention raised by the petitioner was that as per G.O.Ms.No.55, Co-operation, Food and Consumer Protection Department, dated 24.3.2000, the Secretaries of PACBs were brought under a Common Cadre and the first respondent alone is the competent authority to deal with them. Hence the proceedings initiated by the second respondent by a charge memo, dated 24.8.2002 is not valid. It is only the second respondent who had ordered for the domestic enquiry, issued a second show cause notice and also issued a final order, dated 11.2.2003. Hence the proceedings are not valid.
3.It is against this order, the petitioner preferred a writ petition being W.P.No.2208 of 2005. The said writ petition came to be disposed of by a final order, dated 21.4.2006. In that order, in paragraphs 3 and 4, this court observed as follows:
"3.The learned counsel for the petitioner submitted that since the petitioner is a common service cadre employee, the Special Officer/third respondent herein has no jurisdiction to pass the impugned order and only the cadre constituted by G.O.Ms.No.55 Co-operation Food and Consumer Protection Department dated 24.3.2000, wherein clause 30 says who is the competent authority to impose punishment, can pass such orders. According to the learned counsel for the petitioner, the Joint Registrar of Co-operative Societies of that region is the competent authority and therefore the impugned order passed by the Special Officer viz., the third respondent is unsustainable.
4.The learned counsel for the petitioner as well as the learned counsel for the third respondent submits that the matter in issue is covered by the judgment of this Court in W.P.No.21939 of 2000 dated 27.4.2001 (K.R.Sivaprakasam V. Joint Registrar of Co-operative Societies, Perambalur and two others), which order has been followed in a subsequent decision of this Court in W.P.No.8447 of 2001 dated 15.09.2003 (S.Kalamegam v. The Joint Registrar of Co-operative Societies, Erode and two others). In the above said writ petitions, the orders passed by the Special Officer were set aside with liberty to the respondents to proceed further in accordance with law and after following the procedures prescribed as per the terms of new regulations."
(Emphasis added)
4.Subsequently, a writ appeal was filed by the second respondent Co-operative Bank before a Division bench in W.A.No.975 of 2006. The Division Bench presided by Elipe Dharma Rao, J., by judgment, dated 25.1.2008, dismissed the writ appeal and held as follows:
"2.The learned single Judge has rightly passed the order on the basis of the submissions made by the learned counsel for the writ petitioner as well as the learned counsel for the third respondent in the writ petition viz., the appellant herein, following the covered decision of learned single Judge of this Court made in W.P.No.21939 of 2000 dated 27.4.2001 and W.P.No.8447 of 2001 dated 15.9.2003. Therefore, we see no reason to entertain the writ appeal. The writ appeal fails and is dismissed accordingly. No order as to costs. Consequently, connected M.P. is closed."
5.Once again, a review application was filed by the Cooperative Bank in Review application No.8 of 2009. The said review application came to be rejected by an order, dated 6.4.2009. It is thereafter, the impugned order came to be passed by the first respondent.
6.The contention that he had reached the age of superannuation and therefore, no further proceedings can be initiated cannot be sustained by this court. The petitioner while in service had challenged the order passed by the second respondent and had succeeded in setting aside the same. While agreeing with the petitioner, an order of remand was made by this court which was also approved by the Division Bench. Therefore, he cannot compare himself with a person, who was allowed to retire on reaching the age of superannuation. It is well open to this court to remand the matter either for a fresh disposal or for limited remit order. It is under the premise that no person can be allowed to escape from the hands of law without any justification.
7.The petitioner's case is squarely covered by the order of remand made by this Court. Therefore, the contention of the petitioner cannot be accepted. Further, there is no impediment to continue the enquiry when there is a direction from this court or when a power is reserved for continuing the action by the Society. Even though in the present case G.O.Ms.No.55 has been revoked, by a subsequent order even on repeal of the G.O.No.55 notifying the common cadre, the existing action initiated by the Common Cadre Authority was directed to be continued as if there was no repealing order.
8.Another division bench presided by Prabha Sridevan, J. relating to The Registrar of Co-operative Societies, Kilpauk, Chennai Vs. G.Manoharan in W.A.Nos.256 and 257 of 2008, dated 21.10.2009 dealt with a similar issue. In paragraph 33 it was held as follows:
"33.From the records produced in this case, the following facts are obvious:-
(a)The activities of the first respondent had caused a great deal of consternation among the authorities and they were forced to transfer him from the place where, according to them, he was causing a lot of damage.
(b)The disciplinary proceedings had been actually initiated before his age of superannuation, since the first charge memo is dated 6.6.2003, whereas his age of superannuation is 31.6.2003.
(c)He had also given a reply to the charge memo dated 6.6.2003, but had not chosen to reveal the fact of the issuance of this earlier charge memo in his writ affidavit.
(d)No orders had been passed permitting him to retire; on the contrary, he was suspended on the eve of his attaining the age of superannuation.
(e)The Supreme Court has held that even if a person had retired, if it is proved that he had caused loss to the establishment, then proceedings can be initiated to recover the amount of loss from him.
(f)Even if a person has attained the age of superannuation, it is possible to dismiss him, in which event, he will not be entitled to his terminal dues vide (2007) 9 S.C.C. 15 (supra).
(g)In any event, Section 87 of the Act gives the power to proceed against even a past employee for recovery and restoration of the financial loss caused to the Society."
9.In the light of the above, the contentions raised by the petitioner cannot be countenanced by this Court. Hence the writ petition will stand dismissed. No costs. However, as directed by the first respondent, it is open to the petitioner to file an appropriate review application before the revisional authority and challenge the merits of his case. The dismissal of the writ petition will not disentitle the petitioner from availing such remedy.
11.12.2009 Index : Yes Internet : Yes vvk To
1.The Joint Registrar of Co-operative Societies, Common Cadre Authority, Erode Region, Erode.
2.The Special Officer, K.177, Ketticheviyur Primary Agricultural Co-operative Bank Ltd.
Ketticheviyur, Gobi Taluk, Erode District.
K.CHANDRU, J.
vvk PRE DELIVERY ORDER IN W.P.NO.18867 of 2009 11.12.2009