The petitioner filed Original Application No.3608 of 1997 challenging the order dated 28.4.1997 by which he was removed from service.
2. Admittedly, the petitioner was appointed on 6.3.1969 and later, promoted as Senior Inspector of Co-operative Societies on 20.10.1973. He was also promoted as a Co-operative Sub Registrar on 9.10.1990. At the relevant time, since the Board of Directors of various societies were superseded, the petitioner was made as a Special Officer in charge of various societies. When the petitioner was discharging the duties of the Special Officer, a charge memo was granted under Rule 17(b) of the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules. The charges against the petitioner was that he has given effect to the settlements signed under Section 18(1) or 12(3) of the Industrial Disputes Act (in short 'I.D. Act') without regard to the claims and financial position of the co-operative societies and those settlements were fraudulently signed by the erstwhile Board of Directors and the petitioner did not take any steps in overruling the said settlements. On the contrary, he actively implemented the said settlements, thereby acted contrary to the circular issued by the Department. By his action, substantial amounts were paid to the employees and the societies were in a bad financial condition.
3.The defence taken by the petitioner was that the settlements under
Section 12(3) or 18(1) of the I.D. Act cannot be overruled unilaterally by the Board or by the Special Officer unless it is modified in the manner known to law. Being an officer in charge of the societies, he is bound to give effect to the settlements. Any failure on his part would have resulted in a prosecution launched by the State under
Section 29 of the I.D. Act. Alternatively, he submitted that there is no allegation that he had made any cutout of the funds spent on the employees and there is no financial impropriety or misappropriation on his part.
4.After conducting an enquiry, the petitioner was removed from service by the order of the second respondent dated 28.4.1997. The petitioner immediately thereafter moved the State Administrative Tribunal and filed the original application. Despite notice to the respondents, they have not filed any reply to the case filed by the petitioner. Since the Tribunal was abolished, the matter stood transferred to this Court and was re-numbered as W.P.No.26867 of 2006.
5.Mr.S.Vadivelu, learned counsel for the petitioner submitted that the petitioner acted bona fide in giving effect to the settlements and he cannot be penalised for doing a lawful thing. He also submitted that at the relevant point of time, a Division Bench of this Court in Tiruchirapalli Hiruthayapuram Co-operative Bank Employees Union vs. Joint Registrar of Co-operative Societies reported in 1992 (2) L.L.J. 747, held that a settlement under
Section 12(3) or 18(1) of the I.D. Act cannot be nullified by the unilateral action of the Registrar and therefore, the petitioner cannot be found fault with the action taken by him. He also contended that he was not the author of the said settlements, but the settlements were signed by the then Board of Directors and he merely implemented the said settlements. Alternatively, he submitted that the petitioner having put in more than 27 years of service, the order of removal is highly disproportionate and it has the effect of depriving even the terminal benefits in spite of his long service. He also submitted that the petitioner has not committed any misconduct and his track record was clear.
6.Taking the first submission that the petitioner acted bona fide in giving effect to the settlements and that a Division Bench of this Court had given sanctity to such an action cannot be countenanced by this Court. The said Division Bench judgment was rendered in the context of the Co-operative Societies Act, 1961 and it did not deal with the new Tamil Nadu Co-operative Societies Act, 1983, which was brought into effect from 1.4.1988. When a question came up for consideration before this Court in Justine, L. v. The Registrar of Co-operative Societies, Chennai, reported in 2002 (4) C.T.C. 385, in paragraph 19(vii), the Division Bench observed as follows:-
"19.(vii) that either the provisions of Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 or the Industrial Disputes Act, 1947, or the settlements entered under
sections 12 or 18 thereof, shall have no application to the staff of the co-operative societies appointed without adequate qualifications or beyond the cadre strength for the period from 9.7.1980 to 11.3.2001. This is equally applicable to the staff appointed to the cooperative societies, otherwise than through employment exchange, for the period from 12.3.2001 onwards."
The said decision was also taken before the Supreme Court and the Supreme Court upheld the decision of the Division Bench in A.Umarani vs. Registrar of Co-operative Societies [(2004) 7 SCC 112].
7.Subsequent to the aforesaid decisions, the very same question came up before this Court as to whether the Registrar has power to direct the Co-operative societies to cancel a settlement signed under
Section 18(1) or 12(3) of the I.D. Act and whether the earlier decision of the Supreme Court in the case of Tiruchirapalli Hiruthayapuram Co-operative Bank Employees Union vs. Joint Registrar of Co-operative Societies, cited supra, was correct, was considered by another Division Bench in T.N.V.K.V.V.S.A.P.Madya Sangam v. Dy. Registrar of Co-op. Socy. (2008 (2) L.L.N. 236). The Division Bench held in paragraphs 14, 15 and 16 as follows:-
"14. In fact, Rule 149 of the Rules 1988 came into being by way of G.O.Ms.No.212, dated 4 January, 1997, i.e., after the pronouncement of the Division Bench decision reported in Tiruchirapalli Hiruthayapuram Co-operative Bank Employees Union, v. Joint Registrar of Co-operative Societies, Tiruchirapalli (vide supra). On the basis of the judgment of the earlier Division Bench, the State Government in order to restrain the individual societies entering into such wage settlements without reference to the viability of the concerned co-operative societies thought it fit to incorporate the provision in the Rules by introducing Rule 149.
15. By no stretch of imagination, the said Rule can be said to be either conflicting with the provisions of I.D. Act or introduced with any other ulterior motive to defeat the lawful rights of the employees of any of the registered societies. The purpose of the Rule is to ensure that a registered society does not become defunct or unwieldy and any of the registered societies should not be allowed to be closed due to dearth of funds by mismanagement. Therefore, the constitution of the committee for formulating the common wage structure for the employees of the registered co-operative societies by G.O.Ms. No.289, dated 18 December 1998, and the subsequent G.O.Ms.No.166, dated 16 August 2000, were all in furtherance of the fulfilment of the above objective of the State Government.
16. In the light of the above factors, we are convinced that the orders impugned in the writ petitions issued by the first respondent directing the respective co-operative societies to cancel the settlements which came to be arrived in contravention of the directions issued by the Registrar of the Co-operative Societies, dated 16 October 1997, issued under S.181 of the Act 1983 by invoking S.166 of the Act 1983 are perfectly justified. We are also convinced that the Division Bench decision in Tiruchirapalli Hiruthayapuram Co-operative Bank Employees Union, v. Joint Registrar of Co-operative Societies, Tiruchirapalli (vide supra), upon which heavy reliance was placed upon by the appellant does not in any way support the stand of the appellant. ...."
8. Therefore, the legalistic stand taken by the petitioner in defending the charges cannot be countenanced. But, at the same time, it is not as if there is any allegation that he has disobeyed the direction issued by the Registrar, pursuant to the power vested under Rule 149 of the Tamil Nadu Co-operative Society Rules, 1988. The stand of the petitioner that he has not committed any financial misappropriation and therefore, he should not be penalised with a heavy punishment merits acceptance. It may be out of place to mention that ever since the case of Tiruchirapalli Hiruthayapuram Co-operative Bank Employees Union, v. Joint Registrar of Co-operative Societies, Tiruchirapalli, cited supra, came, there has been different orders passed by this Court and therefore, one cannot blame the lay persons like the petitioner. The law came to be settled only after the Division Bench's decision in L.Justine's case, cited supra, which was approved by the Supreme Court in Uma Rani's case, cited supra. Therefore, to penalise the petitioner for having a misunderstanding of the legal position may not be proper. At the same time, he cannot plead that he has discharged his power bona fide, and had not understood the implication of the new law, under which he is administering various societies.
9.The second argument of Mr.S.Vadivelu, learned counsel for the petitioner that punishment given to the petitioner, viz., removal from service, after 27 years of service rendered by him without any previous bad record, may be disproportionate. Therefore, this Court is inclined to accept the said submission and convert the order of removal into one of compulsory retirement, which is also a major punishment under Rule 8 of the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules. In that view of the matter, the petitioner may be at least entitled to get terminal benefits.
10.In view of the same, the impugned order insofar as its imposition of punishment of removal from service is set aside and the respondents are directed to impose the punishment of compulsory retirement on the petitioner with effect from 28.4.1997. In view of the modification of the punishment, the respondents are directed to settle the terminal benefits due to the petitioner in accordance with law within a period of three months from the date of receipt of a copy of this order. The writ petition is allowed to the extent indicated above. No costs.
sra To
1. The Joint Registrar of Co-operative Societies, Pudukottai Region, Pudukottai.
2. The Deputy Registrar of Co-operative Societies, Pudukottai