This Writ Petition is filed to quash the impugned orders passed by the respondents dated 22.05.2012 and 17.06.2009 and consequently, to direct the second respondent to reinstate the petitioner into service with backwages with continuity of service and all other attendant benefits.
2. The brief facts of the case are that the writ petitioner was appointed in the second respondent bank on 01.02.1990 as Salesman through 2/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.2976 of 2013 employment exchange and his service was regularized. Then, he was promoted as Clerk on 01.12.1995, then promoted as Secretary on 30.11.2002 by a specific order to that effect, but without fixing the scale of pay as applicable to the post of Secretary. Even after 7 years, the scale of pay was not fixed for the post of Secretary and he has not received any salary from February 2003. But believing the words of the respondent bank, the petitioner continued in the said post.
3. The contention of the petitioner is that one set of keys was entrusted with the petitioner and other key was kept under the custody of the Special Officer of the 2nd respondent Bank and the bank is functioning in two blocks with four chambers and a go-down. The petitioner will open the office with the keys entrusted with him and commences the business daily. Sometime back, due to default of payment of subscription to the Provident Fund, the bank accounts were frozen and the Employees' Provident Fund Organization was proposing to attach safety locker containing jewels that were under pledged. Under these circumstances, whenever the petitioner was absent from duty or unable to attend office due to other work or for any 3/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.2976 of 2013 reason, nobody in the office was prepared to get the office key, apprehending the risk of attachment. Therefore, the Special Officer has strictly instructed the petitioner not to leave the records in open, whenever the petitioner was leaving from the office. Due to freezing of account of the respondent bank, the bank cannot operate cash credit account with the Madurai District Central Co- operative Bank, in which the accounts are being maintained. Under this circumstance, due to freezing of bank account, no outward transaction was permissible for any purpose. The Tamil Nadu Co-operative Marketing Federation (hereinafter referred to as “TANFED”) / the supplier of fertilizer used to deliver goods on payment of amount and refused to supply fertilizers on credit basis.
4. To meet such exigencies, it was advised by the Joint Registrar to adopt a strategy of getting manure, through Madurai Taluk Agricultural Producers' Co-operative Marketing Society Ltd., Gnanaolivupuram, Madurai, (hereinafter referred to as “MTAPCMS”) on an understanding that the amount would be paid on the sale of the fertilizers. On 17.06.2008, the Regional Manager, TANFED, gave delivery note addressed to the Special Officer, 4/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.2976 of 2013 MTAPCMS to deliver fertilizers to the respondent bank. On 18.06.2008, the slash of price for fertilizer was flashed in the newspapers. Therefore, the Special Officer MTAPCMS withheld further process. After one week, when it was confirmed that no reduction of prices, once again, on the advice of the Special Officer, the petitioner approached the Regional Manager, TANFED at Madurai in turn gave delivery note to the Special Officer MTAPCMS to deliver fertilizers to the respondent bank. The Special Officer of the respondent Bank contacted the petitioner through phone and advised him to get authorization letter to receive the fertilizers. The petitioner got the authorization at about 6.00 p.m. and informed the Special Officer, including the shifting of the ledgers to other chamber as usual. The Special Officer without comments accepted the same and advised to move immediately saying that in case of exigency, he could utilize the other set of keys that was with him. Thereafter, the petitioner left to Mannargudi at about 12.00 p.m., and boarded the bus at Madurai on 26.06.2008 at 1.30 a.m. The Special Officer ascertained the arrival of the petitioner at Mannargudi through phone at about 10.50 a.m. On 26.06.2008, during which the petitioner appraised that there was possible delay in delivery and she instructed to contact the Secretary of 5/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.2976 of 2013 MTAPCMS to arrange for an early delivery by the officials of Mannargudi. Accordingly, the petitioner contacted the Secretary and in turn, he moved the officials at Chennai.
5. On 26.06.2008, the petitioner received a phone call from the mobile phone of Salesman, namely, G.R.Kannan spoken by Subakumar, Clerk and informed that the Joint Registrar directed the petitioner to contact the Joint Registrar over phone. The petitioner contacted the Joint Registrar within 5 minutes and the Joint Registrar enquired with the petitioner as to why the employees were not in the office. On 27.06.2008, the petitioner left along with fertilizers and arrived midnight on 28.06.2008. The Special Officer informed the petitioner to meet Joint Registrar and she also accompanied with the petitioner. However, as the Joint Registrar was not available in the office, but, through phone, instructed to disburse the fertilizers to the agriculturists without delay, in the presence of the Field Officer. On 28.06.2008, the Special Officer of the respondent bank served an order and instructed to put the date as 26.06.2008 in the office copy. The petitioner, without going into the contents, simply received the paper, after signing in the office copy for receipt 6/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.2976 of 2013 of the same and affixed the date as 26.06.2008 as per the instructions. The petitioner read the same after reaching his house and surprised to see that it was some order of suspension dated 26.06.2008.
6.The respondent bank has issued a charge memo dated 03.10.2008 and the charges are as follows:
(i) The petitioner went out of station, keeping the office under lock and key without prior permission from the Special Officer.
(ii) The petitioner went to Mannargudi, situated at another district to lift manure without handing over charges to other staff.
(iii) The petitioner has failed to remit the sale proceeds of manure as shown in the stock register, thereby misappropriated the amount.
(iv) The petitioner was careless in his duties as the voucher for payment of Rs.360/- as water tax on 12.09.2007 was not available that raise a doubt of false accounting and about the actual remittances.
(v) The challan for remittances of Rs.18,000/- on 19.04.2008 was not available
(vi) The petitioner disbursed Rs.22,433/- to four employees as bonus during the year 2005-06 and Rs.12,000/- during 2006-07 without permission of the Special Officer.
7. The petitioner submitted his explanation on 01.11.2008 and the respondent bank appointed an Enquiry Officer. The petitioner vide letter dated 16.02.2009 appraised of the penury status, due to serving without wages for more than 4 years and despite of placing under suspension, pending enquiry, 7/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.2976 of 2013 no subsistence allowance was paid for more than 8 months. The petitioner also submitted a representation to the Central Deputy Registrar of Co- operative Society as well as the Regional Joint Registrar. The petitioner has also submitted several representations to grant of subsistence allowance. Thereafter, the enquiry officer fixed the date for enquiry, without referring to the representation and objections of the petitioner. Finally, the enquiry was fixed on 28.04.2009. The petitioner submitted a representation dated 24.04.2009 stating that he may be paid bare minimum amount to meet the expenses, since it is impossible for him to attend for enquiry for want of funds. The Special Officer acknowledges the same, but she has not paid any amount and the objection sent to the enquiry officer was also returned as unserved as unclaimed during the period from 06.05.2009 to 15.05.2009 and the Special officer acknowledged the same on 06.05.2009.
8. On 03.06.2009, the petitioner was served with show cause notice on 02.06.2009 enclosing copy of the findings of the enquiry officer. The petitioner was directed to submit an explanation for the enquiry report and the petitioner submitted explanation on 06.06.2009. Without going into the 8/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.2976 of 2013 defence of the petitioner without appreciation of proper evidence, based on their own records, the enquiry officer has concluded as ex-parte enquiry alleging non-appearance by the petitioner and held the charges are proved. Based on the report the Special Officer has dismissed the petitioner vide order dated 17.06.2009.
9. Since there was serious violation of principles of natural justice coupled with the malafide intention, the petitioner had preferred a Writ Petition in W.P.(MD)No.8006 of 2009 and this Court, vide order dated 23.10.2009 had dismissed the Writ Petition by giving liberty to challenge the order of dismissal before the appropriate forum. Thereafter, the petitioner submitted a petition in T.N.S.E.No.3/10 before the authorities under Tamil Nadu Shops and Establishments Act. The respondent bank, represented by Advocate, filed a counter. The respondent bank has not marked or let in any evidence and the petitioner has also filed a brief statement confirming the pleas in the appeal memorandum. In view of the advantageous position, the petitioner filed written arguments. Without proper appreciation of the facts and circumstances of the issue involved therein, the first respondent simply 9/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.2976 of 2013 dismissed the appeal through the impugned order. Aggrieved by the same, the present Writ Petition is filed.
10. The respondents have not filed any counter, however relied on the counter filed before the authority.
11. Heard the learned counsel appearing for the petitioner, the learned counsel appearing for the respondents respectively and perused the records.
12. The learned counsel appearing for the petitioner submitted that the respondent bank appointed the petitioner, through order dated 30.11.2002, wherein it has been stated that P. Muthukumar is appointed on 30.11.2002 as Secretary in the retirement vacancy of one P. Rengasamy. The learned counsel appearing for the petitioner relied on the authorization letter dated 25.06.2008, wherein the petitioner was directed to get delivery of the fertilizers from Kulamangalam Primary Agricultural Co-operative Bank. From this it is evident that on the date, where the charge memo alleges that the petitioner has 10/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.2976 of 2013 not attended duty and the campus is under lock and key, the respondent bank has specifically given an order to travel to Kulamangalam to get delivery of the fertilizers. If the respondent bank has given an order to get delivery of the fertilizers from Kulamangalam Primary Agricultural Co-operative Bank, the petitioner was not in a position to open office.
13. The claim of the petitioner is that there was some alternative key with the Special Officer. The petitioner was directed to appear before the Kulamangalam Co-operative Bank to fetch the fertilizers at the end of the day. Therefore, he was not in a position to make alternative arrangement to open the office. Moreover, since there is a likelihood of attachment, the respondent bank was not in a position to open the office. Hence, according to the petitioner, the first and second charges cannot be fastened on the petitioner and the same is acceptable. Therefore this Court is of the considered opinion that the charges 1 and 2 cannot be fasten on the petitioner.
14. As far as the misappropriation charges are concerned, the allegation against the petitioner is that the petitioner has not maintained the 11/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.2976 of 2013 records and thereby, there is a misappropriation. The contention of the petitioner is that non-maintenance of records can never amount to misappropriation. The records are always available and it is under the lock and key, on the date of visit by the respondent bank. But, the respondent bank has come to the conclusion that there is a misappropriation. At the most, the same can be negligence for not maintaining the records. Therefore, the contention of the petitioner is that the allegation of misappropriation was not proved by the respondent bank. Even according to the Special Officer proceedings, the petitioner has maintained records belatedly. The relevant portion of the order reads as follows:
“3.cuk; &.570.75 ehs; 22.11.2007 cuk; tpw;gid nra;ag;gl;L> tpw;gid nra;j nuhf;fj;jpid tq;fp fzf;fpy; nrYj;jhky; ifahly; nra;Js;shh;.
4.12.09.2007y; jz;zPh; thp &.360/- nrYj;jpajw;fhd gpy; tq;fpapy; ,y;yhky; cz;ikapNyNa jz;zhP ; thp cz;ikapNyNa fl;lg;gl;ljh fzf;F kl;Lk; vOjg;gl;ljh vd;w re;Njfj;jpw;F cl;gLj;jp nghWg;gpy;yhky; gzp Mw;wpAs;shh;.
5.tq;fpapy; Vw;gLk; tuT nryT ,dq;fspy; <L nra;J fzf;F vOJk; ,dq;fspy; kpff; Fiwthd fzf;Ffs; kl;LNk vOjpAs;shh;. mjpfgl;rkhd fzf;Ffs; vOjg;glhky; ve;j Njjpapy; vOjg;glNtz;LNkh me;jj; Njjpapid fle;J fhyk; jho;j;jp vOjp gzpapy; mjpfkhd myl;rpaj;Jld; nray;gl;Ls;shh;.
6.19.04.2008y; kj;jpa tq;fpapy; &.18000/- nrYj;jpAs;sjw;fhd ryhd; tq;fpapy; ,y;iy. ,th; myl;rpa Nghf;Fld; nray;gl;Ls;shh;. ve;j Mtzq;fisAk; KiwAld;
Ngztpy;iy. Mtzq;fis Kiwahf guhkhpf;f jtwpAs;sjhy; epjp njhlh;ghd eph;thf rPh;NfLfs; Vw;gLj;jp 12/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.2976 of 2013 cs;shh;. ,tuJ nra;iffs; jzpf;if nra;tjpy; ngUk; Fog;gj;jpid Vw;gLj;jp cs;sJ.
7.Nghd]; gl;Lthlh KiwNa 2005-06 kw;Wk; tpoh Kd;gzk; 2006-07 Mfpa fzf;Ffs; 4 gzpahsh;fSf;F &. 10433/- &.12000/- Mf nkhj;jk; &.22433/-I jdp mYtyhpd; mDkjpapd;wp gl;Lthlh nra;J epjp KiwNfL Ghpe;Js;shh;.
jq;fsJ ,r;nray;fs; kpfTk; fz;bf;fj;jf;fJk;> nghWg;gw;w nraYk; fLk; xOq;F eltbf;iff;fhd nraYkhFk;.
,uz;lhk; fhuzk; NfhUk; mwptpg;Gf;F nfhLj;j tpsf;fk; Mo;e;J rpe;jpj;J ghprPypf;fg;gl;lJ. Mdhy; vJTNk Vw;Wf; nfhs;sj;jf;fjy;y Fw;wq;fs; ep&gpf;fg;gl;l epiyapy;> jq;fs; kPJ ep&gpf;fg;gl;l Fw;wq;fs; xt;nthd;Wk; jq;fis epue;jug; gzp ePf;fk; nra;tjw;fhd kpff; fLikahd Fw;wq;fshFk;. jq;fsJ fle;j fhy hpf;fhh;LfSk; jq;fSf;F rhjfkhf ,y;iy. VdNt ep&gpf;fgl;l Fw;wq;fs; xt;nthd;wpw;fhfTk; jq;fis jdpj;jdpNa epue;jug; gzpePf;fk; nra;tnjd jPh;khdpf;fgl;L mjd;gb jq;fis 17.06.2009 Kjy;
epue;jug;gzp ePf;fk; nra;J cj;juT ,lg;gLfpwJ.” Therefore, this Court is of the considered opinion that there is no misappropriation. At the most it can be considered as negligence of duty.
15. The next contention of the petitioner is that there is no jurisdiction for the Special Officer to initiate proceedings, because for initiation of disciplinary proceedings, as per Special Rule, the Registrar is the appropriate authority. For this, the petitioner relied on the Special by-law, wherein it has been stated that for “Common Cadre Service” employee, the Joint Registrar has power, not Special Officer, which has been clarified in 13/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.2976 of 2013 G.O.Ms.No.55, Cooperation, Food and Consumer Protection Department, dated 24.03.2000. On perusal of the report of the enquiry officer as well as G.O.Ms.No.55, Cooperation, Food and Consumer Protection Department, dated 24.03.2000, this Court is of the considered opinion that the disciplinary proceedings initiated by the Special Officer is without jurisdiction, since as per the G.O.Ms.No.55, Cooperation, Food and Consumer Protection Department, dated 24.03.2000, for the common cadre service employee, the Special Officer has no authority.
16. This Court has already held that the petitioner was directed to travel to the Kulamangalam Primary Agricultural Co-operative Bank in order to pick up the fertilizers. Simultaneously the respondent bank has issued suspension order. If the respondent bank has issued authorization to pick up fertilizers, there is no necessary for the respondent bank to give suspension order on the same date. In other words, if the suspension orders issued, then the petitioner cannot carry out any official duty. The respondent bank has issued suspension order and simultaneously, issued authorization letter to carry out the official duty, which will be evident that the respondent bank has 14/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.2976 of 2013 vindictive motive. The above act would clearly indicate that the allegations are made out only in order to take action against the petitioner and dismiss from service.
17. This Court has already held that the first and second charges have not been established. In respect of the other charges of misappropriation, this Court has already held that it is only non-maintaining the records and at the most it will be only negligence of duty. Therefore, the punishment of dismissal from service is absolutely disproportionate. For the allegation of not maintenance of records, even though there are no proper evidence, this Court is inclined to impose stoppage of increment for one year without cumulative effect. The impugned order of dismissal from service is set aside.
18. As the petitioner was 52 years at the time of filing of the Writ Petition and has attained the age of superannuation as on today. So, there is no question of reinstatement into service. Since the punishment is modified, the respondents are directed to disburse all the terminal benefits by modifying the punishment. The said exercise shall be completed within a period of six 15/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.2976 of 2013 (6) weeks from the date of receipt of a copy of this order. Accordingly, this Writ Petition is disposed of. No costs.
19.05.2022 Index : Yes / No Internet : Yes / No Myr To The Appellate Authority under the Tamil Nadu Shops and Establishments Act, (The Deputy Commissioner of Labour), 1/5-C Rathinasamy Nadar Road, Vishalakshipuram, Madurai-625 016.
16/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.2976 of 2013 S.SRIMATHY,J.
Myr Order made in W.P.(MD)No.2976 of 2013 Dated:
19.05.2022 17/17 https://www.mhc.tn.gov.in/judis