ORDER

The petitioner, while serving as a Sales Woman, had retired from her services on 31.05.2006. Prior to her retirement, the second respondent Society had initiated proceedings for certain charges and through an order dated 15.05.2006, there was an order of reduction in the basic pay. As against the same, the petitioner had preferred a revision under Section 153 of the Tamil Nadu Co-operative Societies Act, which ultimately resulted in a punishment of stoppage of two increments without cumulative effect, through the order of the first respondent dated 17.05.2013 and by a subsequent order dated 20.11.2014, a sum of Rs.50,181.60 was imposed as penalty, in which, the petitioner had already paid a sum of Rs.10,000/- on 22.12.2005 itself.

2. The learned counsel for the petitioner submitted that in the absence of any provision under the Tamil Nadu Co-operative Societies Act for proceeding with the enquiry against a retired employee, as well as for recovery, the impugned order cannot be sustained.

3. Per contra, the learned counsel for the second respondent submitted that the charge against the petitioner is very serious in nature, which has caused a huge loss to the Society and therefore, the same requires to be recovered only from the petitioner herein.

4. The learned Additional Government Pleader appearing for the first respondent had reiterated the same stand taken by the learned counsel for the second respondent.

5. The powers of the Co-operative Society to proceed with a departmental enquiry against a retired employee and the consequential recovery has been dealt with by the Hon'ble Full Bench of this Court in the case of S.Andiyannan Vs. The Joint Registrar, Co-operative Societies, Madurai Region and another reported in 2015 (3) L.W. 513, whereby it was held that in the absence of any bye-laws of the Society or any provision under the Tamil Nadu Co-operative Societies Act, no departmental enquiry can be proceeded with against a retired employee. The relevant portion of the order reads as follows:-

"29. The first legal question referred to this Bench is whether the disciplinary proceedings initiated against an employee of a co-operative society governed by the Tamil Nadu Co-operative Societies Act can be continued even after the retirement of the said employee. The decisions relied on by both the learned counsel have categorically make it clear that the legal position is that the authority could continue the departmental enquiry against retired employee, only subject to applicable statutory Rules or bye-law, which govern the terms and conditions of his service of the employee. Hence, the relevant Rules governing the service conditions of the employee is the determining factor as to whether and in what manner a domestic enquiry can be continued against an employee, who retired after reaching the age of superannuation. Hence, had there been any enquiry initiated while the delinquent employee was in service, it could be continued even after his retirement, subject to the service Rules or bye-law of the co-operative society.

If the service Rules relating to the employee permits for continuation, there would be no bar in continuing the departmental proceeding, that was initiated while he was in service, even after his retirement. It is also categorically held by the Hon'ble Supreme Court in the latest decisions, that in such circumstances, even if the guilt is proved, there is no possibility of imposing punishment of dismissal or removal from service, as the same is not legally sustainable."

6. The aforesaid extract is self-explanatory. When there is admittedly no enabling provision under the Act or the Bye-laws of the Society empowering them to proceed with an enquiry against a retired employee or for recovery of any alleged loss, the action taken, after the petitioner's retirement, cannot be sustained.

7. Though the petitioner herein would be entitled for refund of the recovered gratuity amount that has been recovered after 31.05.2006