(Prayer: The Writ Appeal is filed under Clause 15 of the Letters Patent, against the order dated 24.02.2016 made in W.P.(MD)Nos.12602 of 2013 on the file of this Court.)
S.S. Sundar, J.
1. Aggrieved by the order of the Learned Single Judge, in dismissing the Writ Petition in W.P.(MD)No.12602 of 2013, filed by the writ petitioner / appellant, for issuance of a Writ of Certiorari, to quash the impugned order passed by the Joint Registrar, Co-operative Societies, Nagercoil, Kanyakumari District / the 3rd respondent therein, dated 19.07.2013 in Na.Ka.No.9503 of 2009, the writ petitioner has filed the above Writ Appeal.
2. Brief facts, which are necessary for the disposal of the above Writ Appeal, are as follows:-
The appellant / writ petitioner was holding the post of President of Kanyakumari District Co-operative Bank, from 23.09.1998 to 26.05.2001. During the tenure as President of the Co-operative Bank, it appears that the appellant / writ petitioner promoted one Mr.Henry Thangam from the post of Assistant General Manager to the post of General Manager. The post of General Manager fell vacant on 31.12.1998, on the superannuation of a person, who held the post then and the promotion was made on the same day. Since charges were framed against the said Henry Thangam and enquiry was pending at the relevant point, the promotion given to the said person was treated as an irregularity and an enquiry was ordered, under Section 81 of the Tamil Nadu Co-operative Societies Act. Though the promotion was made in 1998, an enquiry under Section 81 of the Tamil Nadu Co-operative Societies Act, was directed by proceedings, dated 11.07.2005. It appears that an enquiry officer was appointed and after holding enquiry, he submitted a report on 30.09.2005. The enquiry officer recommended for taking action against the appellant / writ petitioner, under Section 36 of the Tamil Nadu Co-Operative Societies Act, for gross mismanagement of the affairs of the Society. Thereafter a show-cause notice was issued to the appellant on 07.12.2005. To the said show-cause notice, the appellant / writ petitioner, sent a reply, dated 24.12.2005, requesting the Joint Registrar, Co-operative Societies, Nagercoil, Kanyakumari District / the 3rd respondent, to furnish some of the documents, including a copy of the report referred to in the show-cause notice and prayed for further time to submit his effective explanation to the show-cause notice.
3. The appellant / writ petitioner has also filed an earlier Writ Petition in W.P(MD)No.226 of 2006, challenging the show-cause notice, dated 07.12.2005, questioning the power and jurisdiction of the Joint Registrar of Co-operative Society to initiate proceedings. Ultimately the said Writ Petition came to be dismissed by this Court on 14.07.2011. Since the appellant / writ petitioner obtained an order of stay of all further proceedings, there was no further proceedings till the disposal of the Writ Petition and even thereafter till 14.07.2014. In the meanwhile, the election for electing the office bearers of Kanyakumari District Central Co-operative Bank was notified. After election of Executive Committee members, by notice, dated 10.07.2013, the meeting of the elected Executive Committee members was scheduled on 15.07.2007, for the purpose of electing the President and Vice-president of the Co-operative Bank. The appellant / writ petitioner was also one of the elected member of the Executive Committee and presidential candidate. Relating to the affairs of the Co-operative Bank, particularly, election to office bearers of the Co-operative Bank, this Court had directed the Superintendent of Police, Kanyakumari District, to give police protection for conducting the election, by order dated 05.07.2013 in W.P.(MD)No.10827 of 2013.
4. Once again, yet another Writ Petition in W.P.(MD)No.11532 of 2013 was filed, for issuance of a Writ of Mandamus, directing the Registrar of Co-Operative Societies and others to forwith convene the meeting of the elected members of Y-11 Kanyakumari District Central Co-operative Bank Ltd., for conducting the election of the President and Vice-president of the Board within a stipulated time. In the said Writ Petition, a Learned Single Judge of this Court, vide order dated 19.07.2013, has directed the Superintendent of Police, Kanyakumari District, Nagercoil, / 4th respondent therein, to give adequate police protection so as to see that the election is conducted peacefully, on 25.07.2013. On the same day, the Joint Registrar of Co-operative Societies, Nagercoil, has passed the impugned order, dated 19.07.2013, under Section 36(1) of the Tamil Nadu Co-operative Societies Act, permanently disqualifying the appellant / writ petitioner, to hold any post in any Co-operative Societies. It is this order that is challenged in the Writ Petition in W.P.(MD)No.12602 of 2013.
5. The Writ Petition in W.P.(MD)No.12602 of 2013 has been dismissed by the learned Single Judge, on 24.02.2016. The learned Single Judge was of the view that there is no illegality in the impugned order of disqualification made under Section 36(1) of the Tamil Nadu Co-operative Societies Act. Even with regard to the contention of the appellant that the impugned order is in violation of principles of natural justice, the learned Single Judge has observed that violation of principles of natural justice does not arise in this case. Aggrieved by the order of learned Single Judge in dismissing the writ petition, the present writ appeal has been preferred by the appellant / writ petitioner.
6. Mr.Isaac Mohanlal, learned Senior Counsel appearing for the appellant would submit that;
(i) The order passed by the Joint Registrar, Co-operative Societies, Nagercoil, Kanyakumari District / 3rd respondent is in violation of principles of natural justice, inasmuch as the appellant / writ petitioner was not given the copy of the enquiry report, which was the basis for initiating the proceedings under Section 36(1) of the Tamil Nadu Co-operative Societies Act, against the appellant / writ petitioner.
(ii). The proceedings under Section 36(1) of the Tamil Nadu Co-operative Societies Act, has been taken only on the short ground that the appellant had promoted the then Assistant General Manager to the post of General Manager, despite the fact that an enquiry was pending against him, after framing charges. Since there is no bar under any Statute or Regulation or By-laws, which is applicable to the Co-operative Bank, to promote a person against whom charges are framed and enquiry is pending, the proceedings initiated against the appellant / writ petitioner, under Section 36(1) of the Tamil Nadu Co-operative Societies Act, is unwarranted.
(iii) The officer was promoted in the year 1998, retired on superannuation in the year 2001, after he was relieved from all charges. In otherwords, the charges framed against the said Henry Thangam, the then Assistant General Manager, who was promoted by the appellant, as General Manager, were found not proved pursuant to enquiry. When the charges against the said Henry Thangam are not grave and the charges are held to be not proved even in the year 2001, the commencement of an enquiry under Section 81 of the said Act, in the year 2005, is improper and illegal.
(iv) Having regard to the fact that the impugned order has been passed at the time, when the appellant / writ petitioner was selected, as Member of the Executive Committee and contesting the election for the post of President and that there is no reason for the long delay in passing the impugned order and therefore, the impugned order suffers from malafides. (In this regard, the learned Senior Counsel brought to the notice of this Court about the credentials of the appellant).
7. Per contra, Mr.A.K.Baskarapandian, learned Special Government Pleader for the respondents after referring to the counter affidavit filed by the Joint Registrar, Co-operative Societies, Nagercoil, Kanyakumari District / 3rd respondent in the writ petition contended that the appellant / writ petitioner inspite of a show-cause notice, has not availed the opportunity by submitting his explanation and that the failure to furnish the enquiry report and the documents sought for by the appellant / writ petitioner would not vitiate the impugned order. The learned Special Government Pleader referring to Section 152(2) of the Tamil Nadu Co-operative Societies Act, submitted that the writ Petition is not maintainable as there is an effective alternative remedy of an appeal against the order of disqualification made under Section 36 of the Tamil Nadu Co-operative Societies Act.
8. On merits of the case, the learned Special Government Pleader submitted that the said Henry Thangam is not at all eligible for any promotional post in the 6th respondent Bank and giving promotion to Henry Thangam, by the appellant / writ petitioner, he has committed an act of gross mismanagement in the affairs of the Bank. He has also submitted that the delay in passing the order pursuant to the show-cause notice is due to the pendency of the Writ Petition filed by the petitioner in W.P(MD)No.226 of 2005 and stay obtained by the appellant / writ petitioner. He has also submitted that there is no material to show that the impugned order suffers from malafides.
9. We have heard the learned counsel for the parties and carefully perused the materials available on record.
10. On the first issue, we perused the records and the report of the enquiry officer, dated 30.09.2005, pursuant to the direction issued by the the Joint Registrar, Co-operative Societies, Nagercoil, Kanyakumari District / 3rd respondent, dated 11.07.2005 to hold enquiry under Section 81 of the Tamil Nadu Co-operative Societies Act. The report contains the statement obtained from several officers, including the appellant and the said Henry Thangam. The entire files relating to the promotion of the said Henry Thangam and other documents pertaining to the regularity of the promotion of the said Henry Thangam have been referred to by the enquiry officer. The provision of the Bye-laws, Government Orders, and other regulations are also referred to in the report, so as to consider whether the promotion of the said Henry Thangam is in irregularity. Though there is no specific Rule or Bye-law referred to, to hold that promotion of the said Henry Thangam during pendency of the charges against him is impermissible, the enquiry officer relied upon the Registered Bye-law No.1, which was introduced by the proceedings of the Joint Registrar, Nagercoil, dated 25.02.1998. As per this Bye-law (Bye-law No.1 of the registered bye-law), the General Manager should be appointed by the Board of Management. Though explanation was given by the appellant / writ petitioner that the said Bye-law is not applicable in the case of promotion, the enquiry officer has given several reasons for holding that the promotion of the said Henry Thangam, from the post of Assistant General Manager to the post of General Manager, during pendency of the charges against him, is a serious irregularity and that the same is an act of mismanagement, attracting the provision of Section 36(1) of the Tamil Nadu Co-operative Societies Act.
11. It is not in dispute that elaborate enquiry report is the basis for initiating proceedings, under Section 36(1) of the Act, and the show-cause notice issued to the appellant / writ petitioner specifically refers to the enquiry report. As a matter of fact, even in the show-cause notice, a finding is rendered by reproducing the contents of the report wherein, it was concluded that promotion to said Henry Thangam is an act of gross mismanagement. To this show-cause notice, the appellant has given a reply, dated 24.12.2005. This reply is not a statement of objection or explanation, but a request for furnishing some of the documents including the enquiry report, for giving his effective explanation to the show-cause notice. The appellant / writ petitioner has also requested further time of 15 days, after furnishing the copy of the documents. Despite a request made for furnishing the copy of the documents, the same were not furnished to the appellant and this fact is not in dispute. Though, the Joint Registrar, Co-operative Societies, Nagercoil, Kanyakumari District / 3rd respondent could not have proceeded further pursuant to the show-cause notice, dated 07.12.2005, in view of the stay granted by this Hon'ble Court, even after the disposal of the Writ Petition in W.P.(MD)No.226 of 2006, by an order dated 14.07.2011, dismissing the writ petition filed by the appellant / writ petitioner, challenging the show-cause notice, there was a delay of two years in passing the the impugned order. It is pertinent to mention that the appellant's request to furnish copy of the enquiry report is not even rejected by an order or communication. In these circumstances, we find that there is some force in the argument of the learned Senior Counsel for the appellant that the impugned order, dated 19.07.2007, is in violation of principles of natural justice.
12. It is now well settled that an adverse material which form the basis of charges must be made known to the person against whom it is relied so that opportunity of being heard is meaningful and purposive. It is relevant to point out that the impugned order, dated 19.07.2013 specifically refer to the enquiry report and the Joint Registrar has observed in his order as follows:-
( Tamil )
Further more, the contents of the enquiry report are reproduced in the impugned order. Thus, it is evident that appellant is being deprived of knowledge of the materials against him, but the same are available to the 3rd respondent to reach his conclusion. We therefore hold that the impugned order is violative of principles of natural justice.
13. It is an admitted fact that the charges against the said Henry Thangam were found disproved long back and the said person retired by superannuation, after being relieved of all charges on 31.05.2001. Thus it is clear that a show-cause notice was issued on 07.12.2005 alleging some irregularities in the promotion, which was made in the year 1998. Even though it was alleged that promoting the said Henry Thangam in 1998, during the pendency of charges against him is an irregularity, no bye-law or Government Orders, or Regulation applicable to the Co-operative Bank, is produced before this Court or before the Joint Registrar, Co-operative Societies, Nagercoil, Kanyakumari District / 3rd respondent, to show that such promotion is contrary to Regulation or bye-law or Government Orders.
14. Though there is reference to an amended Bye-law, which was introduced pursuant to the proceedings of the the Joint Registrar, Co-operative Societies, Nagercoil, Kanyakumari District / 3rd respondent, dated 25.02.1998, wherein, it is stated that the General Manager shall be appointed by the Board of Management, the same may not be applicable in the case of promotion. Even the enquiry report submitted by the enquiry officer pursuant to the enquiry under Section 81 of the Act, and statements obtained from other officers indicate that the appellant had made an attempt to prove that there were precedents to promote officers even during the pendency of the charges. The statements and materials produced before the enquiry officer in this regard had been ignored by the enquiry officer. Hence, the whole enquiry under Section 81 and the impugned order appears to be arbitrary and brought in with ulterior motive or for reasons extraneous.
15. We are unable to give liberty to the respondents to hold further enquiry after furnishing a copy of the report and other documents, as requested by the appellant / writ petitioner, for the following reasons:-
(a) The appellant / writ petitioner has promoted the said Henry Thangam in 1998, of course, during pendency of the charges against him. No provision or Bye-laws or Regulation or Government Orders shown to us to infer that the promotion given to the said Henry Thangam, is in violation of such Bye-laws or Regulation or Government Orders. It is also admitted that the post of General Manager is filled only by promotion.
(b) The charges against the said Henry Thangam are found to be not proved and the said Henry Thangam was allowed to retire on superannuation on 31.05.2001. For the alleged irregularities in 1998, the show-cause notice was issued on 07.12.20005. we are not able to find any explanation or convincing reason for the long delay. The inaction for considerable length of time cannot be ignored and it indicates lack of bonafides.
(c) Even after dismissal of the Writ Petition in W.P(MD)No.226 of 2006, dated 14.07.2011, there is a long delay of more than two years to pass the impugned orders. Coupled with the fact that this order has been passed at the time, when the appellant / writ petitioner was elected, as a Member of the Executive Committee and on the day when the learned Single Judge of this Court issued direction to give police protection for conducting the election to the post of President and Vice-president, we find reasons to believe malafides, particularly, on seeing the sequence of events supported by materials.
16. In the above circumstances, we find that the impugned order, dated 19.07.2013 suffers from legal malafides, apart from being violative of principles of natural justice. Hence, the Writ Appeal is allowed and the order of the learned Single Judge in dismissing the W.P(MD)No.12602 of 2013, 24.02.2016, is set aside. The impugned order passed by the Joint Registrar, Co-operative Societies, Nagercoil, Kanyakumari District / 3rd respondent, dated 19.07.2013, is quashed. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.