The prayer in the Writ Petition is to quash the impugned order of termination of the petitioner's service passed by the second respondent in his proceedings No. Nil dated 27.2.2003.
2. Heard the learned counsel appearing for the parties.
3. The only question raised by the learned counsel for the petitioner is that the Special Officer, who has passed the impugned order of termination is not the competent authority to pass such an order and therefore, the order impugned in this Writ Petition is liable to be set aside on the ground that the same was passed by an incompetent authority.
4. To examine the above question, following are the relevant facts which are necessary for consideration:
The petitioner was appointed as Secretary in the Second Respondent Society and he was working as such from 5.6.1986. It is stated that the said Society has been originally entrusted to the Board of Directors duly elected and constituted in accordance with the provisions of the Tamil Nadu Co-operative Societies Act (hereinafter referred to as the 'Act'), with effect from 1.11.1996 and subsequently, the second respondent namely the Special Officer assumed charge with effect from 25.5.2001, duly appointed under section 89 of the Act, who shall work under the control and direction of the first respondent namely the Joint Registrar of Co-operative Societies. While that being so, the first respondent has suspended the petitioner from service on 21.9.2000 as per the order of the Government issued in G.O.Ms.No.55 dated 24.3.2000 and subsequently, a charge memo was also issued alleging that the petitioner has committed certain irregularities and in respect of the maintenance of accounts. The petitioner has also submitted his explanation and thereafter an enquiry was conducted by the Special Officer and he has passed the impugned order terminating the service of the petitioner with effect from 27.2.2003.
5. According to the petitioner, the second respondent himself has conducted the enquiry and passed the impugned order of termination without having any power to conduct such an enquiry against the Secretary as per the above Government Order. He claims that because of the previous enmity between himself and the Special Officer, without enquiring into the real facts, Book of Accounts and other records, the Special Officer who is having control over the said accounts and in order to escape from the clutches of law, has terminated the petitioner from service.
6. Controverting the above facts pleaded by the petitioner, the respondent has filed a counter affidavit inter alia contending that the petitioner was working as Secretary since 5.6.1986 and he was suspended from service with effect from 15.2.2000 to 10.3.2000 for misappropriation of jewel loans and deposit loans to the tune of Rs.35,21,590.25, and hence he was terminated from service. A criminal case in crime No.3 of 2002 has also been filed against the petitioner and the same is pending on the file of learned Judicial Magistrate, Neyveli.
7. It is further stated that the petitioner was suspended from service with effect from 21.9.2000 by the Joint Registrar of Co-operative Societies, however, the petitioner had given a wrong information as if he was terminated from service for the irregularities committed by him in respect of maintaining the Books of Accounts and without paying the subsistence allowance he was terminated from service, but the petitioner was regularly paid the subsistence allowance as per the Act. It is the further case of the respondent that the power of taking disciplinary action is in line with the Government Order issued in G.O.Ms.No.55 dated 24.3.2000 and since interim stay was granted by this Court in W.P.No.19892 of 2000 dated 27.11.2000, against G.O.Ms.No.55 dated 24.3.2000, the action of the respondent cannot be termed as arbitrary.
8. Since the above Government Order which speaks about the common cadre of service to the Secretaries of Primary Agricultural Co-operative Banks was stayed by this Court, the Special Officer of Co-operative Bank has got power to deal with the matters of Secretaries in the Co-operative Societies. It is also submitted that a Division Bench of this Court, by its order dated 23.6.2003 has observed that the orders issued by the Government in G.O.Ms.No.55 dated 24.3.2000 referred above are valid and sustainable and accordingly dismissed the W.P.No.7081 of 2001 and batch of Writ Petitions on 23.6.2003. Since the termination order came to be passed as early as on 27.2.2003 i.e. well before upholding of the above G.O., the Special Officer of the Second respondent Society has got power to take disciplinary action against the Secretaries of the Bank.
9. In this background, while examining the question involved in this case, whether the Special Officer is competent to pass the impugned order of termination in accordance with the Government Order or not, is to be seen from the unreported decision of the Division Bench of this Court in W.A.No.1284 of 2006 dated 13.12.2006. The relevant portion of the order reads as follows:
"11.As per Sub-section (3) of Section 75 of the Act and Regulation 3, a committee was to be constituted, but before that, in the middle of the year 2000, interim order of stay was passed by this Court in one or other case staying the operation of the entire G.O.Ms.No.55 dated 24.3.2000. During the pendency of these cases, the State Government issued G.O.Ms.No.17 dated 23.1.2001 and the following committee was constituted:-
"The Cadre Authority shall be a Committee consisting of the following as provided in sub-section (3) of Section 75 of the Tamil Nadu Co-operative Societies act, 1983 :-
1.Managing Director or Special Officer as the case may be of the respective District Central Co-operative Bank .. Chairman
2.President of the concerned District Central Co-operative Bank .. Member
3.Vice-President of the concerned District Central Co-operative Bank .. Member
4.Regional Joint Registrar of Co-
10. A careful reading of the above decision of the Division Bench Judgment of this Court would reveal that even if the Government Order referred above was stayed by this Court, it has been clearly stated that any action already taken on the basis of such Government Order cannot be treated to have been stayed and it was also made clear that only an Officer in the rank of Joint Registrar is empowered to go into the matters relating to initiation of disciplinary proceedings as against the Secretaries of the Co-operative Banks and in the absence of any Rule, no officer below such rank of the Special Officer can exercise the power of the Cadre authority.
11. At this juncture, the learned counsel on either side have produced a copy of the Government Order passed by the Government in G.O.Ms.No.122 Co-operation Food and Consumer Protection (CN1) Department dated 4.7.2008, indicating that the Government have examined the proposal of the Registrar of Co-operative Society in respect of the appointment of the common cadre authority to take disciplinary proceedings in respect of the post of Secretary of Primary Agricultural Banks. Following the decision of this Court in W.A.No.1284 of 2006, the G.O. made it clear that in respect of cases which are pending till the date of issue of the order, the cadre authority shall continue to deal with such cases till its finalisation.
12. In the instant case, the order of termination has been passed on 27.2.2003 and admittedly at that time there was no interim stay of the operation of the Government Order in G.O.Ms.No.55 dated 24.3.2000. Therefore this Court has clarified the position in the above Division Bench Judgment that even if the G.O. was stayed by this Court and any action already taken on the basis of such Government order, cannot be treated to have been stayed.
13. In this case, admittedly the order of suspension was made on 21.9.2000 by the Joint Registrar of Co-operative Societies, thereafter the Special Officer has assumed the power, he has conducted the enquiry and passed the termination order on 27.2.2003. It is to be seen that this Court has made it clear that even if G.O.Ms.No.55 dated 24.3.2000 has been stayed by this Court, any action already taken on the basis of such Government Order cannot be treated to have been stayed. Since the second respondent namely the Special Officer assumes the power of the common cadre authority, he has no power to continue the proceedings and accordingly the impugned order of termination is liable to be set aside.
14. In the light of the above proceedings and the decision made by this Court, the impugned order passed by the Special Officer cannot be sustained and therefore, the order impugned in this Writ Petition is set aside and the matter is remitted back to the Cadre Authority namely the Joint Registrar of Co-operative Societies to deal with the matter afresh and pass appropriate orders in accordance with law and this exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
The Writ Petition is allowed with the above Direction. No Costs.
rpa To
1. The Joint Registrar of Co-op. Societies Cuddalore Region Ramadas Naidu Street Pudhupalayam, Cuddalore.
2. The Special Officer F.K.16, Uyakondaravi Primary Agricultural Co-op. Bank, Seplanatham post, Neyveli 2