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2013 DIGILAW 386 (MAD)

S. Veeraputhiran v. Secretary to Government

2013-01-17

K.RAVICHANDRA BAABU

body2013
Judgment :- 1. The petitioner is aggrieved against the order of the first respondent made in G.O.(2-D)No.108, Co-operative Food and Consumer Protection Department, dated 31.10.2007 and consequently seeking for a direction to the respondents to restore him as Manager with all service and monetary benefits. 2. In the impugned order, the first respondent had confirmed the order of punishment imposed on the petitioner demoting him from the post of Manager to post of Assistant Manager. 3. The case of the petitioner is that he was appointed as Salesman in the year 1975 and thereafter, promoted to various posts and finally posted as Manager at the Consumer Co-operative Whole Sale Stores Limited, Rajapalayam, Virudhunagar District. On 31.08.2004, the charges were framed against the petitioner alleging a loss of Rs.2,86,185.30 in the grocery godown for the period 2002-2003, a loss of Rs.7,71,621.50 in the cosmetics godown for the period from 1998-1999 to 2000-2001 and further a monetary loss of Rs.39,781.25 in the cosmetics godown of the whole sale stores, during the period 2002-2003. For the very same monetary loss, proceedings under Section 81 of the Tamil Nadu Co-operative Societies Act, 1983, were ordered. The petitioner along with others were held responsible jointly and severally for the alleged loss. Based on the above said findings of the authorities, under Section 81, surcharge proceedings were initiated against the petitioner and others for recovery of alleged loss. When surcharge proceedings were pending, the departmental proceedings also were parallely initiated against the petitioner. An enquiry was conducted and Enquiry Officer filed a report. The Enquiry Officer proceeded only in respect of loss with regard to a sum of Rs.2,86,185.30 in the grocery godown and Rs.39,781.25 in the cosmetics godown. Consequent upon the enquiry, the special officer imposed a punishment of reduction to the lower post on the petitioner through his proceedings dated 21.07.2005. The petitioner was also placed under suspension from 22.07.2004 to 21.07.2005. During the period of suspension, he was not paid subsistence allowance. As against the order of punishment, the petitioner preferred an appeal before the Joint Registrar of Co-operative Societies and the same was dismissed on 07.09.2006. Further revision preferred before the Government was also dismissed on 27.11.2006 by way of the impugned order. 4. During the period of suspension, he was not paid subsistence allowance. As against the order of punishment, the petitioner preferred an appeal before the Joint Registrar of Co-operative Societies and the same was dismissed on 07.09.2006. Further revision preferred before the Government was also dismissed on 27.11.2006 by way of the impugned order. 4. The learned counsel appearing for the petitioner submitted that though the petitioner had raised various grounds in this writ petition, in view of the subsequent developments taken place in the surcharge proceedings initiated against the petitioner, the respondents are bound to drop the punishment imposed on the petitioner and consequently pay the subsistence allowance and all other retirement benefits, in view of the fact that the petitioner had also retired from service and the respondents have permitted him to retire from service. In support of such submission, the learned counsel for the petitioner placed an order passed in C.M.A.(CS)No.3 of 2003 dated 25.04.2011, passed by the learned Principal District Judge, Virudhunagar. The said judgment was passed by the Principal District Court in the appeal preferred by the petitioner herein against the award passed by the Deputy Registrar of Cooperative Societies, Srivilliputhur, dated 19.08.2002 under Section 87 of the Tamil Nadu Cooperative Societies Act. The learned Principal District Judge after elaborately discussing the facts and circumstances of the case, has allowed the appeal filed by the petitioner, by holding that the first respondent therein, namely, the Special Officer had failed to make out a case as to how the petitioner herein failed to discharge his duties and to what extent he was negligent in discharging his duties by which he had caused loss of goods worth Rs.7,17,312.80 in terms of money value. The learned Judge further observed that without knowledge of the Special Officer and Secretary who are monitoring authorities, the petitioner alone would not have caused loss of goods in terms of money value. By observing so, the learned Judge allowed the appeal preferred by the petitioner, by setting aside the award passed against him, wherein the petitioner was directed to pay the said sum of Rs.7,17,312.80 under the surcharge proceedings. By observing so, the learned Judge allowed the appeal preferred by the petitioner, by setting aside the award passed against him, wherein the petitioner was directed to pay the said sum of Rs.7,17,312.80 under the surcharge proceedings. Therefore, the learned counsel for the petitioner submitted that in view of the finding rendered by the appellate Court in the surcharge proceedings, the departmental proceedings initiated against the petitioner and the consequent punishment imposed on him cannot withstand and therefore, the impugned order challenged in this writ petition has to be set aside. 5. A counter affidavit has been filed by the respondents 1 and 2, in which they have justified the action taken against the petitioner. 6. Heard the learned counsel for the petitioner as well as the respondents. 7. The grievance of the petitioner is that when the surcharge proceedings ended in his favour by the Judgment passed by the appellate Court, dated 25.04.2011, the order of punishment imposed on him cannot be permitted to continue and consequently, the impugned order has to be set aside. This writ petition has been filed as against the order passed by the first respondent dated 31.10.2007. Admittedly, at that time, the appeal preferred by the petitioner before the appellate Court in the surcharge proceedings was pending. Only on 25.04.2011, the appeal came to be allowed in his favour by holding him not responsible for the loss. Therefore, the petitioner has to necessarily place the subsequent developments before the first respondent and make further representation to reconsider the order passed, which is impugned in this writ petition. Certainly, the first respondent should take note of the order passed by the appellate court in CMA(CS)No.3 of 2003 dated 25.04.2011 and to pass the fresh order as and when the petitioner make out an application for reconsideration of the earlier order. The finding rendered by the appellate Court in the Surcharge Proceedings is said to have been become final and no further appeal or revision is filed against the said Judgment. If that being the factual position, the first respondent shall consider the said decision made in favour of the petitioner and pass fresh orders on the claim of the petitioner for seeking to set aside the order of punishment as well as payment of subsistence allowance. If that being the factual position, the first respondent shall consider the said decision made in favour of the petitioner and pass fresh orders on the claim of the petitioner for seeking to set aside the order of punishment as well as payment of subsistence allowance. Therefore, without going into other merits and contention of the respective parties, I only direct the petitioner to approach the first respondent by way of making a fresh representation seeking for reconsideration of the order passed in G.O. (2D)No.108 dated 31.10.2007, by placing all the subsequent developments before him. Such representation shall be made by the petitioner within a period of two weeks from the date of receipt of a copy of this order. As and when any such representation is made, it is for the first respondent to consider the same by taking note of the order passed by the appellate Court in CMA(CS)No.3 of 2003, dated 25.04.2011, and pass appropriate orders within a period of eight weeks thereafter. With the above directions, the Writ Petition is disposed of. No costs.