THE HON'BLE SRI JUSTICE A.V. SESHA SAI WRIT PETITION No.23484 of 2005 Between:
B. Krishnaiah PETITIONER AND
1. A.P. Cooperative Tribunal, Hyderabad, M.J. Road, Hyderabad, and others.
RESPONDENTS ORDER:
This writ petition is filed under Article 226 of the Constitution of India, seeking a Writ of Certiorari to call for records pertaining to the order dated 2.09.2005 passed by the A.P. Cooperative Tribunal Hyderabad in C.T.A.No.170 of 2001, confirming the order of surcharge issued by the 2nd respondent vide Rc.No.154/S2/90/366, dated 24.03.2001.
2. Heard Sri B. Shiva Kumar, learned counsel for the petitioner, learned Government Pleader for Cooperation for the 1st respondent, and Sri R. Radha Kirshna Reddy, learned Standing Counsel for respondent Nos.2 and 3, apart from perusing the material available on record.
3. According to the petitioner, he was the president of the 3rd respondent-society during the period 01.07.1987 to 30.06.1990 and the 2nd respondent ordered enquiry into the affairs of the 3rd respondent-society under Section 51 of the A.P. Cooperative Societies Act, 1964 (hereinafter called ‘the Act’) and thereafter the enquiry was conducted. On the basis of the Enquiry Officer’s report a surcharge order dated 19.01.1991 was passed and as against the said order the petitioner filed C.T.A.No.184 of 1996 before the A.P. Cooperative Tribunal, Hyderabad (hereinafter called ‘the Tribunal). The Tribunal allowed the said appeal setting aside the order of surcharge dated 19.06.1991 and remanded the matter to the 2nd respondent with a direction to hold an independent enquiry under Section 60 of the Act by giving opportunity to the petitioner. In pursuance of the said orders of the Tribunal, the 2nd respondent passed surcharge order dated 24.03.2001. The petitioner filed C.T.A.No.170 of 2001 before the Triubnal. The Tribunal by virtue of an order dated 2.09.2005 dismissed the said appeal confirming the surcharge order.
4. Aggrieved by the said order passed by the Tribunal in C.T.A.No.170 of 2001, dated 2.09.2005 confirming the surcharge orders dated 24.03.2001, the present writ petition is filed.
5. This Court as long back as on 2.11.2005 issued Rule Nisi. Despite the same, no counter affidavits have been filed so far by the respondents either in the direction of denying the averments or in the direction of justifying the impugned order.
6. It is contended by the learned counsel for the writ petitioner that the order passed by the Tribunal confirming the surcharge order is illegal, arbitrary and unjust and the Tribunal as well as the 2nd respondent failed to appreciate the case of the petitioner. It is also contended by the learned counsel that either in the enquiry report or in the impugned surcharge order it was not mentioned that the amount collected from the agriculturists/members was misappropriated by the petitioner. It is further argued by the learned counsel that the explanation submitted by the petitioner for the show cause notice on 3.03.2001 was not considered by the respondent-authorities from proper perspective.
7. Per contra, it is contended by the learned Standing Counsel for the respondents that the order passed by the Tribunal confirming the surcharge order is strictly in conformity with the provisions of the Act, as such, the same does not warrant any interference of this Court under Article 226 of the Constitution of India.
8. The material available on record manifestly shows that in response to the show cause notice issued under Section 60 of the Act, the petitioner submitted an elaborate reply stating that the books concerning the said transaction were maintained by the paid clerk and secretary of the society and the petitioner was under the impression that they maintained the books properly for disbursement. The petitioner further stated in the said explanation that to his surprise he came to know that the paid clerk and secretary failed to discharge their duties properly in submitting the ledgers etc., for reimbursement of subsidy amount and there is no error in distribution of seeds and fertilisers on the part of the petitioner and that the petitioner is quite ignorant in maintaining the records and it is the duty of the paid clerk and secretary and that they failed to discharge their duties. It is further submitted by the learned counsel for the petitioner that despite the said explanation submitted by the petitioner, the authorities did not proceed against the paid clerk and secretary of the society for recovery of the amount.
9. Even though, the petitioner specifically brought to the notice of the authorities with regard to the role of the paid clerk and secretary of the 3rd respondent-society, the said aspect was never touched either by the 2nd respondent or by the Tribunal. It is also significant to note at this juncture that the total surcharge amount as per the surcharge order dated 24.03.2001 is Rs.72,377-78 ps. It is also stated by the learned counsel for the petitioner that pending the appeal the petitioner paid an amount of Rs.37,000/- and pending the present writ petition he paid another sum of Rs.15,000/- and if the said amounts are deducted from the surcharge amount, the balance would be Rs.20,377/-. On instructions it is submitted by the learned counsel for the petitioner that the petitioner is agreeable for set off.
10. Even though, it is the specific contention of the petitioner that the paid clerk and secretary of the 3rd respondent-society were also responsible, in the considered opinion of this Court, the said aspect would not completely absolve the petitioner of his responsibility. In view of the reason that no action has been taken against the paid clerk and secretary of the society for recovery of the amount even though their role was specifically brought to the notice of the authorities in the explanation submitted by the petitioner to show cause notice issued during the surcharge proceedings, this Court is of the opinion that the petitioner is justified in requesting this Court for set off for the amount already paid. It is also brought to the notice of this Court that the petitioner deposited Rs.15,000/- on 13.12.2005 with the 3rd respondent-society and also deposited a sum of Rs.37,000/- before the Tribunal. It is also made clear that the 3rd respondent-society is entitled to withdraw the said amount of Rs.37,000/-, which was deposited before the Tribunal by the petitioner. In the opinion of this Court the said arrangement would meet the ends of justice.
For the aforesaid reasons, and having regard to the nature of controversy, the writ petition is disposed of restricting the liability of the petitioner to the amount already deposited by the petitioner during the pendency of the appeal before the Tribunal and the amount deposited by the petitioner on 13.12.2005 before the 3rd respondent-society. No order as to costs. As a sequel, the miscellaneous petitions, if any, shall stand closed.
JUSTICE A.V. SESHA SAI.
9th July, 2014 Js.