Judgment:
ORDER
K. Chandru, J.
1. The petitioner has filed the present writ petition seeking to challenge the order of the first respondent Co-operative Society dated 30.10.2000 confirming the order dated 10.03.1999 passed by the second respondent.
2. The petitioner was a clerk of the second respondent Co-operative Society. He was placed under suspension by an order dated 24.11.1998. Subsequently, a charge memo was framed on 04.01.1999. A show cause notice dated 19.01.1999 was issued to the petitioner stating that since he had accepted the charges and the charges were severe, he should be dismissed from service. After getting his explanation and placing it before the Board of Directors and passing a resolution dated 04.03.1999, the petitioner was dismissed from service on 10.03.1999. The petitioner was informed that his dismissal came into effect from 24.11.1998, namely the date of suspension.
3. The petitioner had filed a revision before the first respondent under Section 153 of the Tamil Nadu Cooperative Societies Act. The second respondent Society on notice from the Revisional Authority had filed a detailed counter. The Revisional Authority by his final order dated 31.10.2000 dismissed the revision. He held that the petitioner both in his first and second explanations had unconditionally accepted the charges and he had never raised any ground relating to non-conducting of a domestic enquiry. Therefore, considering the misconduct committed by the petitioner, his dismissal was justified. It is against this order, the petitioner has filed the present writ petition.
4. The writ petition was admitted on 06.09.2001. On notice from this Court, the respondents have entered appearance.
5. Mr. R. Parthiban, learned Counsel for the petitioner contended that contrary to the special bylaws, instead of the Sub-Committee passing appropriate orders, the Board itself had passed orders. Therefore, the petitioner had lost his valuable right of appeal against the punishment. If the Sub-Committee had passed the order, he could have filed an appeal to the Board of Directors and hence, the impugned order of dismissal was erroneous.
6. In this context, the learned Counsel placed reliance upon the judgment of the Supreme Court in Electronics Corporation of India v. G. Muralidhar reported in : (2001) 10 SCC 43, wherein, the Supreme Court upheld the decision of the Andhra Pradesh High Court and the order of an Appellate Authority in passing a dismissal order usurping the power vested with the Disciplinary Authority was found fault with.
7. The learned Counsel also placed reliance upon the judgment of the Supreme Court in Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank and Ors. reported in : AIR 1995 SC 1053, wherein the Supreme Court in Paragraph 5 held as follows:
5. The respondent-Bank in its submission contended that although it is true that the Deputy General Manager had acted as the disciplinary authority when he was in fact named under the Regulations as an appellate authority, no prejudice is caused to the appellant because the Deputy General Manager is higher in rank than the disciplinary authority, viz., the Divisional Manager/AGM (Personnel). According to the Bank, it should be held that when the order of punishment is passed by a higher authority, no appeal is available under the Regulations as it is not necessary to provide for the same. It was also contended that there is no right to appeal unless it is provided under the Rules or Regulations. Although the argument looks attractive at first sight, its weakness lies in the fact that it tries to place the Rules/Regulations which provide no appeal on par with the Rules/Regulations where appeal is provided. It is true that when an authority higher than the disciplinary authority itself imposes the punishment, the order of punishment suffers from no illegality when no appeal is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. This is particularly so when there are no guidelines in the Rules/Regulations as to when the higher authority or the appellate authority should exercise the powers of the disciplinary authority. The higher or appellate authority may choose to exercise the power of the disciplinary authority in some cases while not doing so in other cases. In such cases, the right of the employee depends upon the choice of the higher/appellate authority which patently results in discrimination between an employee and employee. Surely, such a situation cannot savour of legality. Hence we are of the view that the contention advanced on behalf of the respondent-Bank that when an appellate authority chooses to exercise the power of disciplinary authority, it should be held that there is no right of appeal provided under the Regulations cannot be accepted.
The result, therefore, is that the present order of dismissal suffers from an inherent defect and has to be set aside.
8. However, it must be noted that the Supreme Court after the decision in Surjit Ghosh (cited supra) considered the very same question in A. Sudhakar v. Postmaster General reported in : (2006) 4 SCC 348. After distinguishing Surjit Ghosh's case, the Supreme Court in paragraphs 17 and 18 observed as follows:
17. We, in this case, are not concerned, as regards the concept of the designated authority. If an authority has been designated by a statute enjoining him to perform statutory duties indisputably it is he who has to do the same but in a case of this nature where Clause (1) of Article 311 of the Constitution envisages that a delinquent officer should not be imposed with major penalties save and except an order passed by the appointing authority, the latter becomes the designated authority.
18. It is now trite that an authority higher than the appointing authority would also be the designated authority for the purpose of Article 311 of the Constitution. Even the Appellate Authority can impose a punishment subject, of course, to the condition that by reason thereof the delinquent officer should not be deprived of a right of appeal in view of the fact that the right of appeal is a statutory right. However, if such right of appeal is not embellished, an authority higher than the appointing authority may also act as a disciplinary authority.
9. The very same question once again came to be considered in Government of A.P. v. N. Ramanaiah reported in : (2009) 7 SCC 165. In that case, the Supreme Court after referring to the cases of Surjit Ghosh's case, Electronics Corporation of India's case and A. Sudhakar's case (cited above) in paragraph 23 had observed as follows:
23. The Constitution being the transcendental law, the rule-making authority by making Rule 14(2) took care to see that constitutional guarantee enshrined in Article 311 of the Constitution which was available to the government servant was protected. That the construction placed by us on the expression 'subordinate' is in consonance with the meaning and import of the word 'subordinate' occurring in Article 311 of the Constitution is apparent from many a decisions of this Court. We shall refer to some of them. In our considered opinion there is nothing in the Constitution which debars the Government from exercising the powers of appointing authority to dismiss a government servant from service. These Rules cannot be read as implying that dismissal must be by the very authority who made the appointment or by his immediate superior.
10. Further on the question of denial of appellate remedy, the Supreme Court in Paragraph 34 of the very same judgment had observed as follows:
34. It is not as if there is no remedy available against the order passed by the Government dismissing a government servant from its service. Rule 38 of the said Rules confers on every member of State service, or a member of subordinate service in whose case the Government has passed original orders, shall not be entitled to appeal but shall be entitled to make separately and in his own name, within a period of three months from the date on which the order was communicated to him, a petition to the Government for review of the order passed by the Government on any of the following grounds, namely:
(i) that the order against which the petition of review is made was not passed by the competent authority;
(ii) that a reasonable opportunity was not given to the petitioner for defending himself;
(iii) that the punishment is excessive or unjust;
(iv) that the petitioner has made a discovery of new matter or evidence which he proves to the satisfaction of the Government, was not within his knowledge or could not be adduced by him before the order imposing the penalty was passed; and
(v) that there is an evident error or omission in the order such as failure to apply the law of limitation or an error of procedure apparent on the fact of record.
The power conferred upon the Government to review its own order is very wide and that a substantive right of review has been conferred on every member of a State service or a member of subordinate service against the orders passed by the Government. In the present case the respondent failed to avail the remedy provided for under Rule 38.'
11. In the light of the above, the contentions raised by the petitioner cannot be countenanced by this Court. Hence, the writ petition will stand dismissed. No costs.