P.R. Shivakumar, J.@mdashThe Defendant in the original suit O.S. No. 1234 of 2004, on the file of the I Additional District Munsif Court, Trichy is the Appellant in the present Second Appeal. The Respondent herein, who was an employer of the Appellant/Co-opeative Bank was served with a charge-memo a few days prior to his date of his retirement on superannuation and the same was challenged by the Respondent herein by filing the abovesaid suit. Along with the suit, he had also filed an interlocutory application seeking interim injunction not to give effect to the charge-memo. Of course, an interim order as prayed for had been granted in the interlocutory application.
2. The Appellant herein/Defendant, thereafter, without attaching any condition, simply allowed the Respondent herein/Plaintiff to retire from service on the date of his attainment of superannuation. After allowing him to retire, the Appellant herein/Defendant filed a written statement contending that the Respondent/Plaintiff was allowed to retire on the due date for retirement on superannuation and hence, the cause of action for the suit challenging the charge-memo did not survive after his retirement. The said stand taken by the Appellant/Defendant prompted the Respondent/Plaintiff to amend the plaint by incorporating an additional prayer for mandatory injunction directing the Appellant/Defendant to release the terminal benefits. After such amendment, the Appellant herein/Defendant took a stand that the suit was not maintainable as the cause of action introduced by the amendment was different from the original cause of action and the original cause of action had become in fructuous.
3. The learned First Additional District Munsif Court, Trichy, after framing necessary issues conducted trial. After recording evidence adduced on both sides, both oral and documentary, the learned I Additional District Munsif, Trichy held that the charge-memo had got to be declared illegal and hence, liable to be set aside. So far as the further relief of mandatory injunction is concerned, the trial court rejected the contention of the Appellant herein/Defendant and held that the relief became necessary as a consequence of holding the charge-memo to be illegal and also on the ground that though the Appellant herein/Defendant allowed the Respondent herein/Plaintiff to retire on superannuation, it failed to settle the terminal benefits. Accordingly, the trial court held that the Respondent herein/Plaintiff was entitled to the relief of mandatory injunction also. The said decree of the trial court was confirmed by the first appellate court, by its judgment pronounced in A.S. No. 153 of 2008, an appeal preferred by the Appellant herein/Defendant. As against the said decree of the first appellate court dated 23.11.2009 confirming the decree passed by the trial court dated 21.09.2007, the present second appeal has been filed.
4. This Court heard the submissions made by Mr. K.K. Senthil, learned Counsel for the Appellant and also took into consideration the memorandum of second appeal, judgments of the courts below and other documents produced in the form of typed-set of papers.
5. An appeal from a decree passed in an appeal by a court sub ordinate to the High Court shall lie to the High Court u/s 100 of CPC only on a substantial question of law. The following questions are sought to be projected as substantial questions of law involved in the second appeal:
1. Whether the judgment and decree of the courts below are vitiated for having failed to consider the entire evidence on record and to apply the correct principles of law?
2. Whether the suit as framed by the Respondent is maintain able in view of the non-qualification of the relief claimed by him?
3. Whenthe Appellant has a right to proceed against the Petitioner u/s 87 of the Tamil Nadu Cooperative Societies Act,1983, whether the courts below are right in directing the Appellant to settle the entire benefits to the Appellant
6. This Court after considering the materials available on record point for issue in this case, is of the view that none of the above said questions will amount to a substantial question of law which has arisen in this appeal for the decision of this Court. In fact, the suit filed by the Respondent/Defendant was sought to be resisted mainly on the contention that such a suit was barred by the provision of Tamil Nadu Cooperative Societies Act. Which provision bars such a suit, has not been mentioned clearly by the Appellant herein/Defendant in the written statement. Section 90 of the Tamil Nadu Co-operative Societies Act deals with the settlement of disputes. It specifically excludes the dispute between a paid servant of the society and the society regarding disciplinary action taken by the competent authority from the purview of Section 90 of the Tamil Nadu Cooperative Societies Act. No other Section is found in the Act for the resolution of such a dispute either by arbitration or by any other method. Only the disputes for the resolution of which provision have been made in the Act are said to be excluded from the operation of Section 9 of the CPC to bar a civil suit. No such bar is attracted in respect of a dispute between a paid servant and the society regarding any disciplinary action taken against such servant. In view of the specific exclusion of the same from the purview of Section 90 of the Tamil Nadu Cooperative Societies Act, the courts below have rightly come to the conclusion that the suit is not barred by the provision of Tamil Nadu Co-operative Societies Act.
7. The next contention raised by the Appellant herein/Defendant is that the Respondent herein/Plaintiff having been allowed to retire on superannuation, the cause of action for challenging the charge-memo vanished and the same did not survive. The said contention can be taken either to mean that the Appellant herein/Defendant had withdrawn the charge-memo or that the charge-memo had suffered a natural death with the result no consequence would arise. But quite contra to the said contention, the Appellant herein/Defendant had failed to settle the terminal benefits on the retirement of the Respondent herein/Plaintiff on his attaining the age of superannuation. The same will go to show that the Appellant herein/Defendant had taken such a stand that the cause of action did not survive only for the purpose of defeating the claim of the Respondent herein/Plaintiff while retaining the intention to give effect to the charges by withholding the terminal benefits. That is the reason why the Appellant herein/Defendant had not chosen to come forward with a plea that the terminal benefits would be settled in due course.
8. On the other hand, the Appellant herein/Defendant wanted to defeat the claim of the Respondent herein/Plaintiff for getting the terminal benefits even after the charge-memo is admitted to have died of its natural death or given a go-by by the Appellant herein/Defendant itself. Therefore, this Court does not find any defect or infirmity in the conclusion arrived at by the trial court and confirmed by the lower appellate court that the cause of action for other relief did not vanish and the suit had not become in fructuous.
9. The learned Counsel for the Appellant made an attempt to contend that the Respondent ought to have filed a suit for the recovery of a specified amount as terminal benefits and seeking the relief of mandatory injunction was inappropriate. This Court is not in a position to accept the above said contention also. It is the duty of the employer to work out the terminal benefits and make payment of the same to the retired employee. If at all, after such calculation and payment of terminal benefits, an employee disputes the correctness of the calculation, he shall be driven to take proceedings for the recovery of the amount due to him as balance terminal benefits. Even in such a case, it is doubtful whether a suit will arise because the dispute regarding calculation of retirement benefits would not amount to a dispute regarding disciplinary proceedings. The Respondent herein/pain tiff seems to have rightly made the prayer for mandatory injunction directing the Appellant herein/Defendant to calculate, quantify and make payment of the terminal benefits. This Court does not find any defect or infirmity in the decree passed by the trial court granting the relief of mandatory injuntion as prayed for.
10. The learned Counsel for the Appellant also contended that the grant of mandatory injunction would provide a clog on the power of the society to proceed against its servant for surcharge u/s 87 of the Tamil Nadu Cooperative Societies Act, 1983 and that therefore, this Court should hold that the Respondent herein/Plaintiff should not have been granted the relief of mandatory injunction. It is quite obvious that while granting mandatory injunction to work out the terminal benefits and make payment of the same, the courts below have not placed any restriction on the Appellant society to proceed with the Respondent/Plaintiff u/s 87 of the Tamil Nadu Co-operative Societies Act initiating surcharge proceedings which shall be a proceedings distinct from disciplinary proceedings. The pendency of the suit for setting aside the charge-memo and for mandatory injunction for the settlement of terminal benefits would not have prevented the Appellants/Defendants from proceeding against the Respondent/Plaintiff for surcharge u/s 87 of the Act. In fact, nothing has been mentioned in the written staement that though the Respondent/Plaintiff was allowed to retire on attaining the age of superannuation, the same would not take away or abridge the right of the society to proceed against him for surcharge u/s 87 of the Act. That being so, for the first time, the said question is sought to be raised in the second appeal. This Court is of the view that the said question does not arise in this appeal and that it shall be sufficient to clarify that there is no bar against the Appellant/Defendant to proceed against the Respondent/Plaintiff u/s 87 of the Act, if it is otherwise permissible in law and that such proceedings shall be subject to the law of limitation.
11. For all the reasons stated above, the Court comes to the conclusion that there is no merit in the second appeal and that the same deserves to be dismissed in the admission stage itself.
12. In the result, the Second Appeal is dismissed. Consequently, connected Civil Miscellaneous Petition is dismissed. No costs.
