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2010 Supreme(Mad) 1827
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P. JYOTHIMANI
A. Abdul Hameed
Versus
The Deputy Registrar of Co-operative Societies, Cuddalore &
Others
Writ Petition No.35621 of 2007 & W.P.No.114 of 2008
Decided on : 20-04-2010
For the Petitioner:P. Anbarasan, Advocate. For the Respondents: R1,
Litasrinivasan, Government Advocate & R2, M.S. Palaniswamy, Advocate.
For a surcharge order to be valid, there must be wilful negligence or deliberate misconduct on the part of the person charged.
Headnote:
The court examined the provisions of the Tamil Nadu Co-operative Societies Act and Rules, including Section 87 (Surcharge), Rule 149 (Conditions of service of paid officers and servants of Societies), and Section 82 (Inspection or investigation). The court considered the applicability of these provisions to the case and their interpretation in previous judgments.
Fact of the Case:
The petitioner, a retired Cooperative Sub Registrar, challenged the surcharge orders issued against him by the first respondent. The surcharge orders were based on excess payments made to certain employees and irregular appointments. The petitioner argued that the payments were made based on a settlement approved by the first respondent and that there was no wilful negligence or misconduct on his part. The tribunal confirmed the surcharge orders, relying on Rule 149 of the Tamil Nadu Co-operative Societies Rules. The petitioner appealed the tribunal's decision.
Finding of the Court:
The court considered the arguments of both parties and examined the relevant provisions of the Tamil Nadu Co-operative Societies Act and Rules. The court found that the appointments made by the petitioner were in violation of Rule 149 and that the settlement under Section 12(3) of the Industrial Disputes Act could not be enforced. The court also held that the surcharge proceedings were initiated within the prescribed time limit. However, the court emphasized that for a surcharge order to be valid, there must be wilful negligence or deliberate misconduct on the part of the person charged. The court found no evidence of such negligence or misconduct on the part of the petitioner and set aside the surcharge orders and the tribunal's decision.
Ratio Decidendi: For a surcharge order to be valid, there must be wilful negligence or deliberate misconduct on the part of the person charged. The settlement under Section 12(3) of the Industrial Disputes Act cannot be enforced if it is in violation of the rules. The time limit for initiating surcharge proceedings should be scrupulously followed.
Result: The court allowed the writ petitions, set aside the surcharge orders and the tribunal's decision, and held that there was no wilful negligence or misconduct on the part of the petitioner. No costs were awarded.
1. The writ petitions are filed challenging the order of the first respondent Deputy Registrar of Cooperative Societies, dated 20.05.2002 and the subsequent order of the Co-operative Tribunal, Cuddalore in C.M.A.No.11 of 2005, dated 27.09.2007 and the order of the first respondent, dated 20.05.2002 and the consequential order of the Tribunal in C.M.A.No.12 of 2005, dated 210. 2007 respectively.
2. The brief facts leading to the filing of the writ petitions are that the petitioner while working as Cooperative Sub Registrar in the State Co-operative Department has retired from service on 28.02.1997. It is stated that during his service, he was working as Sub Registrar (PDS) supervising ration shops at Kattumannarkoil Taluk and he was put in additional charge of about six co-operative societies in the said Taluk. He has also worked as the Special Officer of the second respondent Cooperative bank during 29.02.1992 to 24.08.1995. It is stated that the Government has appointed a Committee to streamline the cadre strength, pay scale and allowances of the employees of Primary Agricultural Co-operative Bank and revised scale of pay approved in G.O.Ms.2 (2D)No.68 Cooperation Food and Consumer Protection Department, dated 111. 1993. It is to give effect to the said government order, it is stated that the Primary Agricultural Co-operative Banks were advised to enter into a settlement with the employees under Section 12(3) of the Industrial Disputes Act and based on that on behalf of the second respondent bank, represented by the petitioner as its Special Officer has signed a settlement before the Labour Officer, Cuddalore on 31.03.1994, for the period from 01.07.1992 to 20.06.1997. It is stated that as per the agreement, the benefits were worked out and the working sheet was approved by the Co-operative Sub Registrar (Arbitration) being the representative of the first respondent and it was based on the same the amounts were disbursed to the employees.
3. The arrears amount paid to the then Secretary and also the Fertiliser Salesman. On the basis of an audit stated to have been effected in 1994-1995, it was noticed that excess amount were paid to the tune of Rs.11464.45 in respect of the said two employees and also the objection from the audit regarding the enhanced pay and allowance in respect of a Clerk and an Office Assistant to the extent of Rs.74,534/- for which the first respondent has passed the impugned order on 20.05.2002 which is the subject matter of dispute in W.P.No.35621 of 2007. A direction was issued to the petitioner as well as the other three persons including the Secretary and Fertiliser Salesman to remit an amount of Rs.11,456/- and the share of the petitioner works out to Rs.2864/-. That apart, the first respondent has also directed to recover Rs.74,534/-from the petitioner and four others including the clerk and office assistant, in which the petitioners share works out to Rs.14,907/- and in that regard, the total amount for which the petitioner was made liable was Rs.17,771/-.
.4. After the petitioners retirement, the first respondent has caused inspection and as per the inspection report, dated 111. 1999, the first respondent issued notice under Section 87 of the Tamil Nadu Co-operative Societies Act, dated 30.11.2001 for an alleged violation of Rule 104(7) of the Tamil Nadu Co-operative Societies Act, 1988 alleging that Rs.35661.45 was paid in excess to one Mr.Govindarajan, Secretary and Mr.Vaidyanathan, Fertiliser Salesman and Mr.Thirumalavan and Mr.Basha, two employees who were irregularly appointed and whose revision of pay was amounting to Rs.60,488.05 for the years 1994-1995 and 1995-1996. The petitioner gave explanation on 31.01.2002 to the effect that the said persons are still working and the payment was made only based on the pay fixation approved by the Co-operative Sub Registrar as representative of the first respondent. However, the first respondent has passed the impugned order dated 20.
