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2014 Supreme(Mad) 2772
Madurai Bench of Madras High Court
S. NAGAMUTHU, J.
S. Andiyannan
Versus
The Joint Registrar, Co-Operative Societies, Madurai Region, Madurai & Another
W.P.(MD) No. 2602 of 2009
Decided On : 26-08-2014
For the Petitioner:T.A. Ebenezer, Advocate.
For the Respondents:R1, S. Chandrasekar, Government Advocate, R2, D. Shanmuga Raja Sethupathi, Advocate.
The main legal point established in this judgment is that there are conflicting views on whether disciplinary proceedings can be continued after the retirement of an employee of a co-operative society governed by the Tamil Nadu Co-operative Societies Act, 1983. The court finds it necessary to refer the questions to a Larger Bench for an authoritative pronouncement.
Headnote:
Disciplinary proceedings against an employee of a co-operative society are governed by the Tamil Nadu Co-operative Societies Act, 1983. The Act does not have an express provision enabling the continuation of such proceedings after retirement. However, Section 87 of the Act provides the power to proceed against a past employee for recovery and restoration of financial loss caused to the society. The conflicting views in previous cases revolve around the interpretation of Section 87 and whether it implies authority to continue disciplinary proceedings after retirement. The court finds it necessary to refer the questions to a Larger Bench for an authoritative pronouncement.
Fact of the Case:
An employee of a Co-operative Society, governed by the Tamil Nadu Co-operative Societies Act, 1983, the Tamil Nadu Co-operative Societies Rules, 1988 and the Bye-Law of the Society, retired and disciplinary proceedings were initiated against him. The question of whether these proceedings could be continued after retirement has been debated in previous cases. One Division Bench held that such proceedings can be continued based on an implied provision in Section 87 of the Act, while another Division Bench held that they cannot be continued and only surcharge proceedings can be initiated. Another Division Bench incorrectly referred to the first case as being about surcharge proceedings. The conflicting views require examination by a Larger Bench for an authoritative pronouncement on the subject. The court directed the Registry to refer two questions to a Larger Bench for answering: 1) Whether disciplinary proceedings can be continued after the retirement of an employee of a co-operative society, governed by the Tamil Nadu Co-operative Societies Act, 1983? 2) Whether Section 87 of the Act can be considered as an enabling provision to continue disciplinary proceedings after retirement?
Finding of the Court:
The Division Benches have taken conflicting views on whether disciplinary proceedings can be continued after retirement. One view is that Section 87 of the Act implies authority to continue such proceedings, while the other view is that only surcharge proceedings can be initiated. The court finds it necessary to refer the questions to a Larger Bench for an authoritative pronouncement.
Ratio Decidendi: The conflicting views on whether disciplinary proceedings can be continued after retirement of an employee of a co-operative society require examination by a Larger Bench for an authoritative pronouncement.
Result: The court directs the Registry to refer two questions to a Larger Bench for answering: 1) Whether disciplinary proceedings can be continued after the retirement of an employee of a co-operative society, governed by the Tamil Nadu Co-operative Societies Act, 1983? 2) Whether Section 87 of the Act can be considered as an enabling provision to continue disciplinary proceedings after retirement?
ORDER OF REFERENCE
An interesting question as to whether the disciplinary proceedings initiated against an employee of a Co-operative Society, governed by the Tamil Nadu Co-operative Societies Act, 1983, the Tamil Nadu Co-operative Societies Rules, 1988 and the Bye-Law of the Society could be continued even after his retirement has troubled this Court on several occasions, as it does in this case also.
2. A Division Bench of this Court in The Registrar of Co-operative Societies v. G. Manoharan, reported in 2010 (2) CTC 234, examined the said question in extenso. The Division bench ultimately held that though it is the general principle, as laid down by the Hon'ble Supreme Court, that after the retirement of an employee, disciplinary proceedings cannot be continued unless there is an enabling provision and though it is true that there is no express provision in the Tamil Nadu Co-operative Societies Act, 1983, enabling continuance of such disciplinary proceedings beyond the date of retirement, still the Division Bench found that Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 impliedly enables such course to continue the disciplinary proceedings even after the retirement of the employee. The Division Bench in G. Manoharan's case held as follows in Paragraph 33.
“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 6.6.2013, whereas his age of superannuation is 31.6.2013.
(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) SCC 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.”
3. The very same question subsequently came up for consideration before yet another Division Bench in M.K.S. Balasubramanian v. The Kancheepuram Central Co-operative Bank Ltd., reported in 2010 (2) CTC 569. But, this Division Bench had no occasion to refer to G. Manoharan's case. This Division Bench took diametrically an opposite view holding that after the retirement of an employee of a co-operative society, disciplinary proceedings cannot be continued. The Division Bench further held that at the most the co-operative society would be at liberty to initiate only surcharge proceedings under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983, after the retirement of the employee.
4. Subsequently, once again the very same question came-up for consideration before yet another Division Bench in P. Thangavel vs. The Chairman, Common Cadre Committee/Joint Registrar of Co-operative Societies, reported in 2012 (3) CTC 488. Of course, fortunately, before the said Division Bench, both G. Manoharan's case as well as M.K.S. Balasubramanian's case, were cited. While referring G. Manoharan's case, the Division bench observed that the said case was all about the surcharge proceedings to be initiated under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 and the said case had nothing to do with a disciplinary p
