[Judgment of the Court by T.S.SIVAGNANAM, J.] Heard Mr.G.Gomathi Sankar, learned counsel appearing for the appellant and Mr.S.Mohandass, learned counsel appearing for the first respondent and perused the materials placed on record.
2. This writ appeal by the Co-Operative Society is directed against the order, dated 08.04.2011, made in W.P.(MD).No.7757 of 2005. The appellant - Society was impleaded as third respondent in the writ petition and though notice was served on them, they did not appear before the Writ Court.
3. The writ petition was filed by the first respondent herein challenging the order passed by the Co-operative Tribunal, in C.M.A.No.38 of 2003, dated 08.10.2004, by which the order of surcharge passed against the first respondent / President of the appellant - Society was affirmed.
4. The Writ Court, after elaborately considering the matter called for the original files and recorded its findings as to how the first respondent has been put to prejudice and as to how there has been gross violation of principles of natural justice and violation of procedures required to be followed under the provisions of the Tamil Nadu Co-operative Societies Act and the Rules framed therein.
5. At this stage, we extract the findings recorded by the learned Single Judge in Paragraph 16 of the impugned order:
"Based on the aforesaid report, the second respondent initiated proceeding under Section 87 of the Act and issued a Show-cause notice dated 11.12.2001. He submitted his explanations dated 18.11.2002 in the form of the counter statement, stating that he was not responsible for the commissions and omissions of the Secretary and the Clerk. He also wanted the report of Mr.Pachaimal and the documents that were relied on by him for preparation of the report. He further requested in the counter statement that Mr.Pachaimal be produced in the enquiry, before the second respondent for cross-examination. I have gone through the lower Court records. The Deputy Registrar sent notice to Mr.Pachaimal to appear for an enquiry before him on 06.11.2002, but, the said notice was not marked to the petitioner. There is no evidence to show that the petitioner was present on 06.11.2002, before the second respondent. Thus, Mr.Pachaimal was petitioner. The file does not disclose Mr.Pacaimal was examined in his presence. It is also relevant that none of the account holders were examined before the second respondent and they were not subjected to cross-examination."
6. From the above order, it is seen that the Writ Court, after having perused the original records, was fully satisfied that there was no opportunity granted to the first respondent to cross-examine the persons, who were examined in his absence.
7. Further, on perusal the order of surcharge, we find that the first respondent was held jointly and severally liable in respect of the allegations contained in Item Nos.4, 5 and 6 of the surcharge order. The other two persons, who were held liable, were the Secretary and Clerk of the appellant - Society and those persons challenged the order of surcharge and their appeals have been dismissed and it has attained finality.
8. We note that the Secretary of the appellant - Society one Murugan, in his evidence before the Deputy Registrar of Cooperative Societies in the surcharge proceedings, has candidly admitted that he is solely responsible for the wrong entries and disbursal of loans to several persons. At this stage, it would be beneficial to refer to a portion of the deposition of the said Murugan, which reads as follows:
"eph;thf FGtpdhy; mg;bghGJ Vw;gLj;jg;gLk; bewpKiwfSf;Fl;gl;L ifapUg;g[ gzk; mlkhd fzf;F ifapUg;g[ cl;gl tpiykjpg;g[s;s bghUl;fSk; cs;spl;l tA;fpapd; midj;J brhj;Jf;fSf;Fk; tHA;fg;gltpy;iy. nj;bjhif U.1,21,500/-k; urPJ vz;.68, 46 n 2, 2, 3 Mfpatw;wpd; go 13.2.95, 5.3.98, 8.5.98 md;W jpU.mUzhr;ryBjth; vd;gtUf;F blghrpl; fld; U.1,02,000/- tHA;fg;gl;ljhf bgha;ahf ehs; tHpg;g[j;jfk; gf;fk; 29y; gw;W vGjp ifahly; bra;j Fw;wj;ij ehd; xg;g[f;bfhs;fpBwd;. jpU.mUzhr;ryBjth; vd;gtUf;F 8.5.98 y; blghrpl; fld; vJt[k; tHA;fg;gltpy;iy. nj;bjhif U.1,02,000/-Kk; urPJ vz;.23 ehs; 3.5.98d; go vd;dhy; tut[ itf;fg;gl;Ls;sJ."
9. Apart from the above admission, the said Murugan has also admitted that he is fully responsible for all other delinquencies committed in the matter on disbursal of the loan amount. Thus, there was no specific material to charge the first respondent and treat him on par with the other two accused persons, namely, Secretary and Clerk of the appellant - Society. The Authority, who passed the order of surcharge mechanically included the name of the first respondent in the surcharge proceedings and held that he is jointly and severally liable in respect of the allegations in Item Nos.4, 5 and 6.
10. We may note that it is the President of the appellant - Society, namely, first respondent had detected the fraud, placed the persons under suspension and initiated disciplinary action against them with due permission from the Authority concerned dismissed them from service. In such circumstances, the first respondent could not have been made jointly and severally liable to pay the amount to the appellant - Society along with the other accused persons, namely, Secretary and Clerk of the appellant - Society.
11. Thus, we are satisfied that the findings recorded by the learned Single Judge in the impugned order are borne out from the original records and the appellant - Society, which remained ex-parte before the Writ Court has not made out any ground to interfere with the impugned order and the writ appeal is, therefore, liable to be dismissed.
12. In the result, the writ appeal fails and it is dismissed. No costs.
To:
1.The Principal District Judge, (Co-operative Tribunal), Tirunelveli.
2.The Deputy Registrar of Co-operative Societies, Kokikrankulam, Tirinelveli District..