The petitioner has approached this Court, with a prayer for issuance of a Writ, in the nature of Certiorari, to quash the Proceedings No.8101/SL1/2010, dated 19.08.2011, vide which, the respondent No.1 has ordered denovo enquiry, under Section 81 of the Tamil Nadu Co-operative Societies Act, 1983 ( hereinafter referred to as 'the Act').
2. The petitioner is working as Cane Assistant in the second respondent Sugar Mills. A complaint was registered against one Mr.K.Kalairajan, the then Administrator of the second respondent's Sugar Mill and charges were framed, to probe into the correctness of the allegations, against him.
3. The Government of Tamil Nadu sanctioned a sum of Rs.87,00,000/- (Rupees Eighty Seven Lakhs only) to reduce the power consumption, control lime addition and Sulphur-di-oxide addition to juice automatically, so as to improve the quality and colour of sugar and for improvement of clear juice quality.
4. Tenders were invited. The respondent No.1, being dissatisfied with the process of tender, ordered an enquiry, under Section 81 of the Act.
5. Section 81 of the Act, is extracted under:-
" Inquiry (1) The Registrar may, of his own motion and shall, on the application of a majority of the Board or not less than one third of the Members or on the request of the Financing Bank or of the District Collector, hold an inquiry or direct some person authorized by him by order in writing in this behalf to hold an inquiry into the constitution working and financial conditions of a registered Society or any alleged misappropriation, fraudulent retention of any money or property, breach of trust, corrupt practice, or mis-management in relation to that Society or into any particular aspect of the working of that Society.
(2) The Registrar, or the person authorized by him under sub-section (1) shall have the following powers, namely:-
(a) He shall, at all reasonable times, have free access to the books, accounts, documents, securities, cash and other properties belonging to, or in the custody of, the Society and may summon any person in possession of, or responsible for the custody of, any such books, accounts, documents, securities, cash or other properties to produce the same at any place at the headquarters of the Society or any branch thereof.
(b) Where any person summoned under Clause (a) fails or refuses to produce any record or property of the registered Society as specified in the summons, any Metropolitan Magistrate or any Judicial Magistrate of the First Class in whose jurisdiction the office of such Society or the records and properties of such Society is or are situated, shall, on application by the Registrar, or the person authorized by him under sub-section (1) direct the delivery to the Registrar or such person of the possession of the records and properties of such Society:-
Provided that no such application shall be made by the person authorized under sub-section(1) without the previous sanction of the Registrar.
(c) He may seize the books, accounts or documents of the Society, if he considers that such seizure is necessary to ensure the safety of such books, accounts or documents or to facilitate his inquiry, and shall give the person from whose custody the books, accounts or documents have been seized a receipt for the same:-
Provided that the books, accounts or documents seized shall be retained by him only for so long as may be necessary for their examination and for the purpose of inquiry.
Provided further that the books, accounts or documents shall not be retained for more than three months at a time except with the permission of the next higher authority.
(d) He may summon any person who, he has reason to believe, has knowledge of any of the affairs of the Society and may examine such person on oath and may summon any person to produce any books, accounts, or documents belonging to him or in his custody if the Registrar, or the person authorized as aforesaid has reason to believe that such books, accounts or documents contain any entry relating to transactions of the Society.
(e) (i) He may, notwithstanding any Rule or Bylaw specifying the period of notice for a general meeting of the Society or for a meeting of the Board require any Officer or officers of the Society to call a general meeting or a meeting of the Board at such time and place at the headquarters of the Society or any branch thereof to consider such matters as may be specified by him and the provisions of sub-clauses (i) and (ii) of clause (b) of sub-section (4) of Section 32 shall apply to any meeting called under this sub-clause as if it were a meeting called in pursuance of a requisition under Clause (a) of sub-section (3) of that section.
(ii) If the officer or officers of the Society refuses or refuse or fails or fail to call such meeting or if in the opinion of the Registrar there is no Board or Officer of officers competent under this Act, the Rules or the Bylaws to call such meeting, or if there be an order of the Registrar or of the Civil Court restraining the Board to function, the Registrar or the person authorized by him under sub-section (1) shall have power to call the meeting himself and the provisions of clause (b) of sub-section (4) of Section 32 and sub-section (5) of that section shall apply to such meeting as if it were a meeting called under clause (a) of the said sub-section (4).
When an inquiry is held under this Section, the Registrar shall, within such time as may be prescribed, communicate the result of the inquiry.
(i) In case the Government have subscribed directly to the share capital of the registered Society or in case any moneys are due from the registered Society either to the principal State Partnership Fund or to the subsidiary State Partnership Fund referred to in chapter VI, to the Government or to any officer appointed by the Government in this behalf;
iii) To the Financing Bank, if any, to which the Society is affiliated; and
iii) to the Society concerned.
4) The inquiry shall be completed within a period of three months from the date of ordering the inquiry or such further period or periods not exceeding three months at a time as the next higher authority may permit, provided that such extended periods shall not exceed six months in the aggregate.
(5) It shall be competent for the Registrar to withdraw any inquiry from the person authorized by him under sub-section (1)and to hold the inquiry himself or entrust it to any other person as he deems fit.
(6) The Registrar may, by order in writing, direct the registered Society or any officer of the Society or its Financing Bank to take such action as may be specified in the order to remedy, within such time as may be specified therein, the defects, if any, disclosed as a result of the inquiry."
6. The respondent No.1, in exercise of power under Section 81 of the Act, authorized a Special Officer to conduct an enquiry. The Enquiry Officer held enquiry and exonerated the petitioner.
7. In stead of taking action under the Act, as per the provisions of Section 81 of the Act, the respondent No.1, passed an impugned order of re-enquiry and has appointed Administrator of Thiruttani Co-operative Sugar Mills, as authorized Officer to hold enquiry afresh.
8. The impugned has been challenged by the petitioner on the ground of jurisdiction of the respondent No.1 to order re-enquiry.
9. On consideration, I find that the Writ Petition deserves to succeed.
10. Enquiry under Section 81 is a Statutory enquiry, which is governed by the provisions of the Statute. Under Section 81, power is with the respondent No.1 to hold enquiry himself or to authorize any other person, to hold enquiry. The authorized person, therefore, acts on behalf of the respondent No.1. The only power under Section 81 with the respondent No.1 is to change the Enquiry Officer, if dissatisfied with the conduct of the enquiry during the pendency thereof and to appoint new Enquiry Officer. This power cannot be exercised, after the enquiry is over, as the power under Section 81 vested with the respondent No.1 came to end, on the submission of the enquiry report, which could be dealt with in accordance with the provisions of Statute.
11. The respondent No.1 did not have any jurisdiction to order re-enquiry under Section 81 of the Act, as there is no such power with him, nor, he can exercise power of review, in absence of provision of review.
12. The impugned order, therefore, is totally without jurisdiction and has been passed in violation of provisions of Section 81 of the Act.
13. For the reasons stated hereinabove, the Writ Petition is allowed, the impugned order is set aside.
14. No costs. Consequently, connected miscellaneous petition is closed.
sd To The Commissioner of Sugars/Principal Secretary Registrar of Co operative Societies for Co operative Sugar Mills Chennai 600 035