PRAYER (C.R.P.(NPD) (MD) No.1247 of 2017): Civil Revision Petition is filed, under Article 227 of the Constitution of India, to set aside the Judgment and Decree, dated 03.12.2016, passed in C.M.A.(CS) No.11 of 2013, on the file of the Principal District Judge, Madurai.
PRAYER (C.R.P.(NPD) (MD) No.1248 of 2017): Civil Revision Petition is filed, under
Article 227 of the Constitution of India, to set aside the Judgment and Decree, dated 03.12.2016, passed in C.M.A.(CS) No.12 of 2013, on the file of the Principal District Judge, Madurai.
In respect of the misdeeds committed by the respondent, it is found that two surcharge proceedings were initiated against him, under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983. Accordingly, it is found that in the surcharge proceedings notice has been ordered to the respondent informing him to appear and make his submissions. It is further found that as per the materials placed, though the respondent had entered appearance, he had appeared before the authority only on 30.08.2000 and 31.03.2011 in the respective surcharge proceedings and remained absent on the other hearing dates in respect of the surcharge proceedings and accordingly, it is found that the respondent had been set ex parte and consequently, the surcharge proceedings had been disposed of against the respondent holding that he is liable to pay the amount involved in the misdeeds committed by him and necessary orders had come to be passed against the respondent in the surcharge proceedings. Impugning the said orders of the surcharge proceedings, the respondent had preferred civil miscellaneous appeals and contested the order passed against him in the surcharge proceedings on various grounds and the Appellate Authority had in the impugned Judgments, after detailing the contentions of the respondent on various aspects in one para has allowed the appeals holding that inasmuch as the copy of the enquiry report has not been served on the respondent and since the surcharge proceedings had not been completed within the time allowed by law and since there is no specific allegation of wilful negligence and misappropriation of funds on the part of the respondent and since the Enquiry Officer did not enquire the proprietor of the concern and since the bye-laws prescribing duties and responsibilities of the Special Officer are not marked by the respondent, accordingly, allowed the civil miscellaneous appeals preferred by the respondent.
2. After hearing the rival contentions of the both parties, it is found that in my considered opinion, the details of the merits of the case need not be gone into in the light of the orders to be passed in the present civil revision petitions.
3. The Enquiry Officer, finding that the respondent has not participated in the proceedings, by setting him ex parte had proceeded to pass the orders against the respondent holding him responsible for the amount involved in the misdeeds. However, it is found that for coming to such a conclusion, the Enquiry officer had not even served the copy of the Enquiry Report on the respondent and further, it is seen that the Enquiry Officer has also not examined any witness and marked any document for enabling him to pass necessary orders in the surcharge proceedings and without any material as such the Enquiry Officer has passed the order holding that the respondent is liable to pay the amount involved in the alleged misdeeds. Accordingly, it is found that the respondent had preferred civil miscellaneous appeals before the Appellate Authority. Even the Appellate Authority, it is found that, has not considered the contentions put forth by the respective parties in detail and as stated above, after pointing out the various contentions put forth by the appellant in the appeals finally allowed the appeals on the footing that the Enquiry Report has not been served on the respondent and the Enquiry Officer has not based his orders on any evidence both oral and documentary and in such view of the matter, finding that the consequent finding of the Enquiry Officer that the respondent is responsible for the negligence and thereby misappropriated the amount is not sustainable and consequently, set aside the order of the Enquiry Officer. It is found that the Appellate Authority has also not given any reason in detail as to how the surcharge proceedings are not concluded within the time allowed by law and how it had come to the conclusion that there is no wilful negligence on the part of the respondent and the respondent had not committed any misappropriation as put forth by the petitioner. With reference to the above said aspects, it is also found that the Appellate Authority has also not given any convincing and acceptable reasons for sustaining its orders. In such view of the matter, it is found that the orders passed by the Appellate Authority are also far from the satisfactory and cannot be sustained in law as such.
4. As to the flaws and mistakes committed by the Enquiry Officer in the enquiry of the surcharge proceedings, the learned counsel for the respondent has placed reliance upon the decisions reported in 2002-3-L.W.185 [S.Subramanian vs. The Deputy Registrar of Co-operative Societies (Housing), Cuddalore and others], 2007 W.L.R.502 [L.Ranganathan vs. The Deputy Registrar of Co-operative Societies, Salem], (2009) 4 MLJ 1992 [K.Ajay Kumar Gosh and others vs. Tribunal for Co-operative Cases (District Judge of Kanyakumari District), Nagercoil and another], 2009-2-L.W.64 [T.Sundararaj vs. The Deputy Registrar of Co-operative Societies, Thuckalay Circle, Thuckalay, Kanyakumari District and others], (2009) 6 MLJ 1051 [A.Janakiraman and another vs. Deputy Registrar of Co-operative Societies, Kumbakonam and another] and 2010 (4) CTC 13 [S.Pitchumani vs. The Deputy Registrar, Co-operative Societies / Arbitrator] and the order, dated 08.11.1996 in W.P.No.14251 of 1991 & C.R.P.No.1680 of 1993, R.Srinivasan vs. The Special Tribunal for Co-operative Cases, Madurai and others and the order, dated 29.07.1998, W.P.No.95 of 1990, M.Sambandam vs. The Deputy Registrar (Credit) Co-operative Societies, Mylapore, Madras and others. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.
5. In the light of the discussions above made, in my considered opinion, as both the orders of the Enquiry Officer as well as the Appellate Authority could not be sustained in law for the reasons aforestated, the orders passed by the Enquiry Officer as well as the Appellate Authority are set aside and the matter is again remitted back to the file of the Enquiry Officer with a direction to the Enquiry Officer to fix a date for enquiry, after giving due notice to the respondent and on the appearance of the respondent, the Enquiry Officer is further directed to furnish all the necessary documents to the respondent as required by law and thereafter, after providing due opportunity to both parties to adduce evidence in support of their respective contentions as per law, pass appropriate orders and dispose of the matter in accordance with law. The respondent is also directed to co-operate with the Enquiry Officer in the disposal of the matter as aforestated.
6. Resultantly, both the civil revision petitions are disposed of with the above directions. No costs. Consequently, connected miscellaneous petitions are closed.
To:
The Principal District Judge, Madurai.
.