The employees of Co-operative Societies are bound to avail the remedy available under the Tamil Nadu Co-operative Societies Act, 1983, before approaching the court under Article 226 of the Constitution of India.

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents to pay the retirement and terminal benefits to the petitioner along with interest at the rate of 12% from 31.1.2017)

1. The writ petitioner was working as Junior Clerk in the third respondent Co-operative Society, which is a Society registered under the provisions of the Tamil Nadu Co-operative Societies Act, 1983.

2. The writ petitioner attained the age of superannuation and retired from service on 31.1.2017 without prejudice to the pending surcharge proceedings. The writ petitioner claims that he is in no way responsible for the financial loss as contemplated under the surcharge proceedings. Therefore, the writ petitioner is entitled to get all terminal and pensionary benefits. In respect of the employees of the Co-operative Societies, the relief, as such, sought for cannot be granted as the Society itself is not the State within the meaning of Article 12 of the Constitution of India.

3. The learned counsel appearing for the writ petitioner made a submission that in view of Sections 78 and 79 of the Act, terminal benefits of the writ petitioner cannot be stopped and even during the pendency of the criminal case, the respondents cannot withhold the terminal benefits due to the writ petitioner.

4. Further, the learned counsel submitted that Sections 78 and 79 being a Statute the same cannot be violated and the non-payment of terminal benefits is a statutory violation and therefore, the principles laid down by the Larger Bench need not be applied to the cases of settlement of terminal benefits.

5. The learned counsel further contended that the Larger Bench of this Court says that writ is not maintainable against the Co-operative Societies. Further, if it is a statutory violation, then a writ petition can be entertained. In the case on hand, it is the case of violation of Sections 78 and 79 of the Act and therefore the writ is to be entertained and the prayer sought for has to be granted in favour of the writ petitioner.

6. The learned Special Government Pleader (Co-operative) appearing on behalf of the respondents made a submission that the Larger Bench is clear on the issue that a writ can be entertained under Article 226 of the Constitution of India only after exhausting the remedy available under Section 153 of the Tamil Nadu Co-operative Societies Act, 1983.

7. Secondly, the Hon'ble Single Judge of this Court in the case of R.Gopalan Vs. The Registrar of Co-operative Societies and Ors. reported in W.P.No.9976 of 2015 dated 07.04.2015. The relevant paragraphs being 5 to 9, which is extracted hereunder : -

“5. The learned counsel for respondents 1 and 2 has submitted that the petitioner has an effective remedy under the Payment of Gratuity Act, if the third respondent institution is covered under the said Act. The payment of Gratuity Act is a self contained code and even in the case of workman covered by the Industrial Disputes Act, such workman cannot make a claim under Section 33-C(2) of the Industrial Disputes Act before the Labour Court in respect of gratuity and such workman shall approach the Controlling and Appellate authority under the payment of Gratuity Act, as held by the Apex Court reported in 1980 1 SCC 4 [State of Punjab V. Labour Court, Jullundur and Others].

6. If the payment of Gratuity Act is not applicable to the establishment, then Section 78 of the Tamil Nadu Cooperative Societies Act would govern the institution. In that event, the petitioner could approach the Revisional Authority under Section 153 of the Act.

7. He would further submit that if the third respondent is governed by Employees Provident Fund Act, then he could approach the authority under the said Act. If not, then Section 79 of the Tamil Nadu Co-operative Societies Act would govern the situation and he would approach the revisional authority under Section 153 of the said Act for his settlement of PF due