Dismissed

G.Thamburaj v. The Joint Registrar of Cooperative Societies

Madras HC8 Nov 2023WP/12358/2020

Case brief

AI extract

What is this about?

The High Court rejected a challenge to a show-cause notice issued under the Tamil Nadu Co-operative Societies Act. Relying on Supreme Court precedents, the Court held that writ jurisdiction should not ordinarily be exercised against a charge-sheet before the enquiry concludes. The petitioner was directed to submit an explanation within 15 days.

What did the court decide?

Petitioner directed to submit explanation within 15 days.

G.Thamburaj Vs The Joint Registrar of… — Constitutional and Fundamental Rights | Madras HC (2023)

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W.P. No. 12358 of 2020

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 08.11.2023

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CORAM

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THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU

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W.P. No. 12358 of 2020 and

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W.M.P. Nos. 15206 of 2020 and 27007 of 2021

G.Thamburaj

… Petitioner

-vs-

The Joint Registrar of Co-operative Societies, Cuddalore Zone, Cuddalore.

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The Deputy Registrar of Co-operative Societies, Cuddalore, Cuddalore District.

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The President, E-2610, Vasantharayanpalayam Urban, Co-operative Credit Society Limited, Cuddalore.

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K.Baskar

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Co-operative Sub-Registrar / Section 810, Enquiry Officer, E-2610, Vasantharayanpalayam Urban, Co-operative Credit Society Limited, Cuddalore. ... Respondents

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Prayer:- Writ Petition filed under Article 226 of the Constitution of India, 1950, praying to issue a Writ of Certiorari, to call for the records of the impugned summon dated 19.08.2020 issued by the Fourth Respondent under Section 81 Enquiry of Tamil Nadu Co-operative Societies Act, 1983 and quash the same.

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https://www.mhc.tn.gov.in/judis

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W.P. No. 12358 of 2020

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For Petitioner : Mr. T.Shanmugam For Respondents : Mr. U.Baranidaran, Additional Government Pleader (for R1, R2 & R4) Ms. S.Anitha (for R3)

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O R D E R

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Heard Mr. T.Shanmugam, Learned Counsel for the Petitioner, Mr. U.Baranidaran, Learned Additional Government Pleader appearing for the First, Second and Fourth Respondents, Ms. S.Anitha, Learned Counsel appearing for the Third Respondent and perused the materials placed on record, apart from the pleadings of the parties.

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It is the case of the Petitioner that enquiry under Section 81 of the Tamil Nadu Co-operative Societies, 1983 (hereinafter referred to as 'the TNCS Act' for short) in respect of the irregularities said to have been committed by him as the then Secretary of the Co-operative Society of the Third Respondent has already been completed by the Fourth Respondent, and Enquiry Report No. Na.Ka. 78/2020/Sapa dated 11.01.2020 has been filed to the Second Respondent, who has initiated surcharge proceedings under Section 87 of the

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TNCS Act and he was terminated from service by the Third Respondent by Proceedings in Na. Ka. No. 1/2019/tha dated 04.11.2019. However, the Fourth Respondent by another summons dated 19.08.2020 called upon the Petitioner to submit his explanation for the aforesaid irregularities said to have been committed by him in the enquiry under Section 81 of the TNCS Act. In that backdrop, the Petitioner has challenged the said notice in this Writ Petition.

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In response, the Third Respondent has filed Counter-Affidavit dated 24.11.2021 stating that the aforesaid enquiries under Section 81 of the TNCS

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Act are distinct and relate to two different aspects as reflected in the tabular

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column below:-

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Sl. DR, Cuddalore Circle / Second DR, Cuddalore Circle / Second Respondent No. Respondent Proc. No.4040/2017 Proc. No. Second Respondent in his Proce. Thovekusadt 10.04.2018 – Terms of No.2390/2018 Thovekukasadt 10.07.2020 – reference Terms of reference 1 1) 20/12/2017 njjpa buhf;f ,Ug;g[ 1) r';f m';fj;jpdh;fspd; Kot[ Fiwt[ fl;lg;gl;l epue;juitg;g[j; bjhifapy; 2) eiff;fld;fs; eilbgw;Ws;s nkhrofs; (i) eifg;igfs; ,Ug;g[ 2) rutzgth Efh;nthh; Tl;Lwt[ bkhj;j (ii) igryhd eiff;fld;fSf;Fhpa tpw;gid gz;lf rhiyf;F bfhs;Kjy; eiffs; jpUg;gp bfhLf;fg;glhj bra;Js;s mj;jpahtrpag; bghUs;fspd; ,d';fs; buhf;fk; tH';fpa tptu';fs; (iii) eiff;fld; vz; 16509 bjhlh;ghf 3) r';ffhrsh; jpU/nf/nrfh; vd;gtuJ nrkpg;g[f; fzf;F vz;/10 d; go (iv) eiff;fld;fspy; bkhj;j vilapy; 17.04.2018y; epYitapy;yhj nghJ chpa fHpt[ bra;ahky;. gw;Wr;rPl;L Kyk; U:/31.700-?

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Sl. No.	DR, Cuddalore Circle / Second Respondent Proc. No.4040/2017 Thovekusadt 10.04.2018 – Terms of reference	DR, Cuddalore C Proc. No. Second No.2390/2018 Th Terms of referenc	ircle / Second Respo Respondent in his Pr ovekukasadt 10.07.2 e	ndent oce. 020 –
	bfhLf;fg;glntz;oa fld; bjhifiatpl. TLjyhf fld; bjhif tH';fpa ,d';fs;/ (v)fy;itj; eiffSf;F chpa fHp[t[ bra;ahky;. TLjyhf fld; bjhif tH';fpa ,d';fs;/	; ; ;; ; [[ ;; ; vLf;fg;gl;Ls;sJ 4) mlkhd ;;; [ fl;oanghJ fzf;fplg;gl;lJ/ ;; 5) nrkpg;g[f; ;; ; nrkpg;g[jhuhpd; tpj;jpahrk; cs;s ; 6) gzpahsh;fs; 2009Kjy; 2010 ;	;;;;/ eiff;fld;fspy; [ tl;o F ;;; (6 ,d';fs;) ;[; fzf;fpy; fzpdpg; g[j;jfg; gj;; ;; ; KiwnfLfs; ;pd;EPF. fpuh$% ; ; tiufl;lhjJbjhl;[	;;; Kot[ iwthf ;[; ;; jptpYk; ptpw;Fk; tpl;o h;g[/
2	Inquiry Officer Thiru. K.Baskar / Coop Sub Registrar / Field Officer, Cuddalore Block.	Inquiry Officer, Sub Registrar / O/o the Cuddal Bank, Cuddalore	Thiru. K. Baskar / Execution and Liqui ore District Central	Coop. dation, Coop
3	Date of submission of Enquiry report – 15.10.2018	Enquiry under challenge in this	progress. Now Writ Petition.	under
4	In the Surcharge proceedings, the Petitioner received the copy of Enquiry Officer's report on 19.02.2019 (by post) 11.07.2019 (in person) and on .... (during the hearing in W.P. No. 447 of 2020)		--
5	Final Award passed in Surcharge proceedings in Second Respondent No.3222/2018 Sapadt 13.01.2020 against concerned including the Petitioner		--

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Insofar as the summons dated 19.08.2020 sent to the Petitioner by the

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Fourth Respondent is concerned, it is evident that it is merely a show cause

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notice issued to him. The consistent legal position has been reiterated by the

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Hon’ble Supreme Court of India in Union of India -vs- Kunisetty Satyanarayana [(2006) 12 SCC 28] that a charge memo or show cause notice cannot be challenged before the completion of enquiry and the proceedings cannot be interdicted till it reaches its logical conclusion. It would be useful here to extract the relevant passages from the said decision which read as follows:-

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“13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board -vsRamdesh Kumar Singh [JT 1995 (8) SC 331], Special Director -vs- Mohd. Ghulam Ghouse (AIR 2004 SC 1467), Ulagappa -vsDivisional Commissioner, Mysore [2001(10) SCC 639[, State of U.P. -vs- Brahm Datt Sharma (AIR 1987 SC 943) etc.

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14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A

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mere charge-sheet or show-cause notice does not give rise to any

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cause of action, because it does not amount to an adverse order

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which affects the rights of any party unless the same has been

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issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

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15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.

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16. No doubt, in some very rare and exceptional cases the High

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Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if

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it is wholly illegal. However, ordinarily the High Court should

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not interfere in such a matter.”

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Having due regard to the aforesaid legal position, as there is nothing which precludes the Petitioner from raising the contentions in the Writ Petition in reply to be submitted to the Fourth Respondent, who is bound to deal with the same before coming to any ultimate conclusion, there is no necessity for the Court to interfere at this pre-mature stage of the matter.

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In such circumstances, this Court without expressing any view on the merits of the controversy involved in the matter, passes the following order:-

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(i) it shall be incumbent upon the Petitioner to submit his explanation to the show-cause notice dated 19.08.2020, if not done already, to the Third Respondent within 15 days from the date of receipt of copy of this order;

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(ii) in the event of not being satisfied with the explanation submitted by the Petitioner, an enquiry shall be conducted following the prescribed procedure after affording full opportunity of personal hearing to the Petitioner to explain his position in that regard and a reasoned order shall be passed dealing with each of the contentions raised on merits and in accordance with law and the decision taken communicated under written acknowledgment; and

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(iiii) if any adverse decision is taken, the Petitioner may pursue legal remedies

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in accordance with law.

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In the result, the Writ Petition is disposed on the aforesaid terms. No