(Prayer: Writ petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorarified Mandamus Calling for the records of the 1st respondents proceedings in Na.Ka.11820/2021/Sa.Pa1 dated 06.01.2023 and the 2nd respondents proceedings in Na.Ka.8458/2019 /tho.ve.sa. dated 26.6.2020 and quash both the above proceedings of the 1st and 2nd respondents as illegal and without jurisdiction in the light of the Circular in Rc.No.50594/2016/SF3 dated 19.08.2016 and Common Cadre Service Rules in G.O.Ms.No.14 dated 12.02.2019, and consequently, direct the respondents herein to disburse the terminal benefits namely, Gratuity, Provident Fund, Earned and Unearned Leave Encashment Salary and pending subsistence allowance payable to the petitioner for the period from the date of suspension till date of superannuation as per Settlement made as per Sec.18 of the Industrial Dispute Act, 1947 w.e.f 01.04.2018, deducting the amount already paid towards subsistence allowance and in respect of Provident fund contribution of the petitioner alone along with 12 percentage interest.)

1. This Writ Petition has been filed for the following reliefs:-

                   “Calling for the records of the 1st respondents proceedings in Na.Ka.11820/2021/Sa.Pa1 dated 06.01.2023 and the 2nd respondents proceedings in Na.Ka.8458/2019 /tho.ve.sa. dated 26.6.2020 and quash both the above proceedings of the 1st and 2nd respondents as illegal and without jurisdiction in the light of the Circular in Rc.No.50594/2016/SF3 dated 19.08.2016 and Common Cadre Service Rules in G.O.Ms.No.14 dated 12.02.2019, and consequently, direct the respondents herein to disburse the terminal benefits namely, Gratuity, Provident Fund, Earned and Unearned Leave Encashment Salary and pending subsistence allowance payable to the petitioner for the period from the date of suspension till date of superannuation as per Settlement made as per Sec.18 of the Industrial Dispute Act, 1947 w.e.f 01.04.2018, deducting the amount already paid towards subsistence allowance and in respect of Provident fund contribution of the petitioner alone along with 12 percentage interest.”

Brief Facts:-

2. The petitioner was working as Secretary in the third respondent Society. While so, he was placed under suspension by proceedings dated 11.09.2018. Thereafter, a charge memo containing 85 charges was issued alleging that he had failed to properly supervise the employees of the Society, resulting in non-remittance of sale proceeds in the Fair Price Shops and other financial irregularities committed by the Salesmen, Clerk and President of the Society.

3. The petitioner submitted his explanation denying the charges and stated that, owing to the heavy workload relating to disbursement and recovery of crop loans, jewel loans and other statutory duties, it was not possible to personally supervise the day-to-day functioning of all the Fair Price Shops. Not being satisfied with the explanation, the third respondent appointed an Enquiry Officer to conduct a domestic enquiry.

4. During the enquiry, the petitioner repeatedly requested the Enquiry Officer as well as the respondents to furnish the relevant documents, including the report under Section 81 of the Tamil Nadu Cooperative Societies Act, and also sought payment of subsistence allowance. Though subsistence allowance was paid up to 30.09.2019, the same was thereafter discontinued despite the petitioner submitting the requisite non-employment certificate. Without furnishing the requested documents and without payment of subsistence allowance, the enquiry was proceeded with and the Enquiry Officer submitted a report holding the charges proved. Based on the enquiry report, the second respondent issued a second show cause notice and, thereafter, passed an order of termination dated 26.06.2020.

5. Aggrieved by the order of termination, the petitioner filed W.P.No.16155 of 2020 before this Court. By order dated 11.11.2020, this Court dismissed the writ petition granting liberty to the petitioner to avail the statutory remedy under Section 153 of the Tamil Nadu Cooperative Societies Act. Accordingly, the petitioner preferred a revision petition before the first respondent, which came to be dismissed by proceedings in Na.Ka.No.11820/2021/Sa.Pa.1 dated 06.01.2023, confirming the order of termination.

6. While so, the petitioner attained the age of superannuation on 28.02.2023. However, the respondents failed to settle his terminal benefits, including Provident Fund, encashment of Earned Leave, Unearned Leave on Private Affairs and arrears of subsistence allowance. Therefore, the petitioner submitted a representation dated 26.06.2023 seeking disbursement of the said benefits, but no orders were passed.

7. Aggrieved by the inaction of the respondents, the petitioner filed W.P.No.23615 of 2023, wherein this Court, by order dated 11.08.2023, directed the respondents to consider the petitioner's representation dated 26.06.2023 and release the amounts not attachable under Sections 78 and 79 of the Tamil Nadu Cooperative Societies Act within the stipulated time. As the said order was not complied with, the petitioner initiated Contempt Petition No.388 of 2024. During the pendency of the contempt proceedings, the respondents paid a sum of Rs.4,22,849/- towards part of the terminal benefits, as a result the contempt petition was closed.

8. The grievance of the petitioner is that the respondents have withheld his eligible terminal benefits and arrears of subsistence allowance only on account of the impugned orders of termination. Therefore, challenging the same, the petitioner is before this Court.

9. Heard the learned counsel on either side and perused the records.

10. A perusal of the records indicates that the impugned proceedings have been initiated without following the provisions of the Common Cadre Service Rules issued in G.O.Ms.No.14, Cooperation, Food and Consumer Protection Department, dated 12.02.2019.

11. It is seen that the Charge Memo has been issued by the 3rd respondent Society on 25.03.2019 which is after the implementation of the GO.Ms.No.14 dated 12.02.2019. Therefore, the said Charge Memo has to be issued only by a Common Cadre Authority, namely, the Joint Registrar of Co-operative Societies. However, in the instant case, the same has been issued by the third respondent Society which is not the competent authority. That apart, the enquiry officer was also appointed by the third respondent Society and not by the Common Cadre Authority.

12. Further, the Division Bench of this Court in WA.No.3895 of 2019 dated 15.02.2023 has observed as follows:-

                   “9. On the above established facts, the Writ Court came to the conclusion that the subsistence allowance was not paid during the crucial period when the second enquiry was conducted. As rightly pointed out by the Writ Court, it is the fundamental principle of Service Law that conduct of enquiry without payment of subsistence allowance is impermissible and illegal. The Writ Court has just declared such an enquiry is illegal and exonerated the respondent from the charges. We do not think we could interfere with the said findings of the Writ Court, which is just on the sound principle of Service Law. If the subsistence allowance is not paid and enquiry is conducted without payment of subsistence allowance, it would amount to oppression. This Court cannot shut its sight to such kind of oppressive treatment on an employee. No doubt a person who has been accused of misappropriating the funds of the Society goes free, but it is the making of the officials of the Society by not paying him the subsistence allowance. We therefore do not see any merit in the appeal and the appeal fails and it is accordingly dismissed. However, in the circumstances without cost.”

13. Admittedly, in the instant case, contrary to the dicta laid down in the aforesaid judgment regarding payment of subsistence allowance, the inquiry has been conducted without paying subsistence allowance to the petitioner, despite his submission of the requisite non-employment certificate.

14. Therefore, in the light of the above discussion, the impugned orders passed by the first and the second respondent cannot be sustained and liable to be set aside. The petitioner superannuated on 28.02.2023.

15. Accordingly, the Writ Petition is allowed and the impugned proceedings of the first respondent dated 06.01.2023 and the second respondent dated 26.06.2020 are set aside. The respondents are directed to settle and disburse to the petitioner all eligible consequential service and terminal benefits, including Gratuity, Provident Fund, Earned Leave Encashment, Unearned Leave on Private Affairs, and the arrears of subsistence allowance payable from the date of suspension till the date of superannuation, after adjusting the amounts already paid, in accordance with law, along with applicable interest, within a period of 8 weeks from the date of receipt of a copy of this order. No costs. Consequently, the connected Miscellaneous Petition is closed.