High Court Order: Notional Increment on retirement 30th June

High Court Order: Notional Increment on retirement 30th June

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.11.2013

CORAM

THE HONOURABLE MR.JUSTICE S.MANIKUMAR

Writ Petition No.28488 of 2013 M.P.No.1 of 2013

M.Murugan                         ………………Petitioner

Vs.

1. The Co-operative Sub Registrar/Field Officer cum Surcharge Enquiry Officer, Madhanur, Gudiyatham Taluk, Vellore District.

2. The President, Chinnakallupalli Primary Agricultural Co-operative Bank,
Chinnakallupalli Village, Vaniyambadi Taluk, Vellore District.

3. The Deputy Registrar of Co-operative Societies,
Tirupattur Circle, Tirupattur, Vellore District……… Respondents

Writ Petition filed under Article 226 of Constitution of India, praying for a Writ of Certiorari, to call for the records, relating to the surcharge show cause notice, Tha Thi 2/2013-14 Sa.Pa. dated 25.09.2013 of the 1st respondent, issued under Section 87 of the Tamil Nadu Co- operative Societies Act, 1983.

For Petitioner : Mr.S.Venkataraman

For Respondents : Mr.L.P.Shanmughasundaram,
Spl. Govt. Pleader (Co-op.)

O R D E R

Being aggrieved by the notice in the surcharge proceedings, made in Tha Thi 2/2013-14 Sa.Pa. Dated 25.09.2013, of the Co-operative Sub Registrar/Field Officer cum Surcharge Enquiry Officer, Madhanur, Gudiyatham Taluk, Vellore District, 1st respondent herein, has issued under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 (hereinafter referred to as “the Act”), calling upon the petitioner, the erstwhile Sub-Registrar, Chinnakallupalli Primary Agricultural Co- operative Bank, Chinnakallupalli Village, Vaniyambdi Taluk, Vellore, to submit his explanation within 15 days from the date of notice, the present writ petition has been filed.

2. According to the petitioner, he had worked as Sub-Registrar in the above said Bank, for the period between 26.07.2001 and 01.07.2003 and thereafter, between 25.11.2003 and 13.04.2004. An enquiry under Section 81 of the Act came to be ordered by the DeputyRegistrar, Tirupattur Circle, on 25.01.2005 and pursuant to the report, dated 03.08.2005, a show cause notice, dated 18.04.2006, has been issued in the Surcharge Proceedings, by one Mr.M.M.Subramanian, the then Co-operative Sub Registrar/Field Officer, Jolarpet. The petitioners and others were alleged to have failed to carry out proper supervision, which enabled the Secretary of the Society to misappropriate Rs.1,02,980/-.

3. The petitioner has further submitted that he was summoned to appear for an enquiry on 25.05.2006, by a memo, dated 18.05.2006, by the Enquiry Officer. On receipt of the same, the petitioner has sent a representation, seeking production of the supporting materials, to enable him to submit his explanation. He has appeared in the enquiry on 25.05.2006 and submitted a detailed representation, demanding documents.

4. Thereafter, the Enquiry Officer has issued a fresh summons, posting the enquiry on 31.01.2006. According to the petitioner, notice of enquiry was received by the petitioner on 31.05.2006 and hence, he

could not attend the enquiry, on the fixed date. Therefore, he sent a representation on 01.06.2006 and sought for an alternative date of enquiry. Now, after nearly seven years, a fresh show cause notice, dated 25.09.2013, has been issued by the 1st respondent.

5. Assailing the correctness of the impugned notice, Mr.S.Venkataraman, learned counsel for the petitioner submitted that the alleged occurrence was between the period 2001 and 2004, when the petitioner was deputed to work as the Special Officer. According to him, a fresh surcharge proceedings has been initiated only on 25.09.2013, after a lapse of seven years and therefore, no action can be taken, as per the 1st proviso to Section 87 of the Act.

6. Learned counsel for the petitioner further submitted that citing the order of this Court made in W.P.No.15758 of 2006, dated 22.06.2012, surcharge proceedings are now reviewed. The above said writ petition, came to be allowed, setting aside the surcharge proceedings with liberty to hold a fresh enquiry, with a further condition that the petitioner therein, should not raise the plea of limitation.

According to him, the order made in the above writ petition, is not a “judgment in rem” and it should be read as “judgment in personam” and therefore, it can be applied only to the petitioner therein, and should not have been extended to the other delinquents.

7. It is the contention of the learned counsel for the petitioner that the petitioner has not challenged the earlier proceedings, on the grounds, including bias or mala fide, raised by the writ petitioner in W.P.No.15758 of 2006 and that there was no order, preventing the enquiry officer to proceed against the petitioner and other delinquents. In the abovesaid circumstances, 1st proviso to Section 87, is attracted and therefore, the present impugned proceedings have to be set aside. Excepting the above, no other points are urged by the learned counsel for the petitioner.

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