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2014 DIGILAW 2230 (MAD)

J. Raghupathy v. Additional Registrar

2014-07-23

S.VAIDYANATHAN

body2014
Judgment : 1. This writ petition is filed challenging the order of the 3rd respondent dated 30.09.2010, quash the same and for a consequential direction to the respondents to pass appropriate orders on the representations of the petitioner dated 18.10.2010 and 26.11.2010. 2. The case of the petitioner is that he was appointed as temporary Clerk on 01.08.1975 in the office of the 1st respondent and on 30.10.1975, he was posted as Clerk on permanent basis. Subsequently, his services were regularised as Junior Assistant with effect from 01.11.1975 and he was promoted as Assistant in the year 1984. Further, he was promoted as Accountant in the year 1995 and as Assistant Secretary in the year 2006. While working as Assistant Secretary, the petitioner retired from service on 31.08.2009. According to the petitioner, though he is entitled to get all his terminal benefits, for having rendered 34 years of continuous service, a sum of Rs.1,38,422/- was deducted from his terminal benefits. Though the petitioner made several representations in this regard to the respondents, seeking clarification, they were of no avail. Therefore, the petitioner filed W.P. No. 15565 of 2010 claiming terminal benefits and the said writ petition was disposed of directing the 3rd respondent therein to forward a proposal on the benefits, if there are any, admissible to the petitioner, within four weeks, to the 1st respondent and thereafter, the 1st respondent was directed to consider the said proposal and pass appropriate orders, on merits and in accordance with law, within a further period of eight weeks. Thereafter, the petitioner made a representation along with a copy of the above said order and the 3rd respondent herein, issued letter dated 30.09.2010, with specific observation, denying the eligibility and entitlement of the petitioner to the relief claimed by him. According to the petitioner, he was called upon to work in the promoted post of Assistant Secretary on account of administrative exigency and salary already paid for the extra work done by him cannot be recovered from his terminal benefits. Pursuant to the letter of the 3rd respondent dated 30.09.2010, the petitioner made a further representation dated 18.10.2010 to the 3rd respondent clarifying the issues of eligibility and entitlement available under the existing provisions of law. However, no orders were passed. Therefore, the petitioner submitted another representation in this regard to respondents 1 and 2 on 26.11.2010 and the same is also pending. However, no orders were passed. Therefore, the petitioner submitted another representation in this regard to respondents 1 and 2 on 26.11.2010 and the same is also pending. Hence, the present writ petition. 3. According to the learned counsel for the petitioner, the steps taken by the respondents to recover the alleged excess amount, paid to the petitioner, from his terminal benefits, is, prima facie, illegal. According to the learned counsel, the amount already paid for the services rendered in a higher post cannot be recovered. That apart, no amount can be recovered either from Provident Fund or Gratuity of an employee, as per the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and the Payment of Gratuity Act, 1972. 4. Per contra, learned counsel appearing for the 3rd respondent submitted that as against the order of the 3rd respondent, the petitioner has got an alternative remedy, by way of revision, before the Joint Registrar of Co-operative Societies, under Section 153 of the Tamil Nadu Co-operative Societies Act, 1983 and he relied upon the judgment of the larger Bench of this Court reported in 2006 4 CTC 689 (K.Marappan V. The Deputy Registrar of Co-operative Societies, Namakkal) to contend that a writ petition will not lie as against a Co-operative Society. 4. Heard the learned counsel for both the parties. 5. The following paragraphs from Marappan's case, are extracted hereunder, for the sake of convenience: "21. (iv) A society, which is not a 'State' would not normally be amenable to the writ jurisdiction under Article 226 of the Constitution, but in certain circumstances, a writ may issue to such private bodies or persons as there may be statutory provisions which need to be complied with by all concerned including societies. If they violate such statutory provisions a writ would be issued for compliance of those provisions. (vi) The bye-laws made by a co-operative society registered under the Tamil Nadu Co-operative Societies Act, 1983 do not have the force of law. Hence, where a society cannot be characterised as a 'State', the service conditions of its employees governed by its bye-laws cannot be enforced through a Writ Petition. (vi) The bye-laws made by a co-operative society registered under the Tamil Nadu Co-operative Societies Act, 1983 do not have the force of law. Hence, where a society cannot be characterised as a 'State', the service conditions of its employees governed by its bye-laws cannot be enforced through a Writ Petition. (vii) In the absence of special circumstances, the Court will not ordinarily exercise power under Article 226 of the Constitution of India when the Act provides for an alternative remedy." From the above extracted portion, it is clear that the larger Bench of this Court has held that a writ is not maintainable as against a Co-operative Society. However, in exceptional cases, where there are statutory violations, writ is maintainable. In this case, as per the Payment of Gratuity Act, 1972, and the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, no amount can be recovered, either from Provident Fund or Gratuity payable to an employee. It is open to the respondent Society to recover the amount by filing a separate suit and not recover the amount from the petitioner's terminal benefits. From paragraph 4 of the impugned order, it is clear that for services rendered by the petitioner in a higher post, higher emoluments have been paid, which the petitioner is, even otherwise eligible to get, based on the services rendered by him. Even assuming for the sake of argument that the petitioner is not entitled to be promoted, for discharging work in a higher post, he is entitled to wages, which cannot be recovered. Since the rights of the petitioner are protected by the provisions of the above said Acts, instead of relegating the petitioner to pursue the alternative remedy, this Court entertains the writ petition and allows the same, setting aside the impugned order. It is open to the respondent Society to recover the alleged excess amount from the petitioner in the manner known to law and not by way of the order impugned in this writ petition. No costs. Connected M.P. is closed.