IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.09.2017 CORAM THE HON'BLE MR. JUSTICE D. KRISHNAKUMAR W.P.No.5082 of 2010 and MP.No.1 of 2010 S.260, Lakkapuram Primary Agricultural Cooperative Credit Society Limited, Rep.by its Special Officer, Lakkapuram, Namakkal District ..Petitioner Vs.
1. The Presiding Officer, Principal District Judge/ Cooperative Tribunal, Namakkal
2. The Deputy Registrar of Cooperative Societies, Namakkal Circle, Namakkal District
3. P.Ponnusamy ..Respondents PRAYER:
The Writ Petition is filed under Article 226 of the Constitution of India to issue a writ of certiorari calling for the records of the Judgment and Decree passed in CMA(CS)No.17/2004 dated 30.10.2008 on the file of the first respondent and quash the same.
For Petitioner : Mr.M.S.Palaniswamy For Respondents : R1 - Tribunal :Mr.L.P.Shanmuga Sundaram, Special Government Pleader for R2 : Mr.S.Umapathy for R3 ORDER:
According to the petitioner, the petitioner society was managed by the elected board of management during the years from 1996 to 2001. When it came to the notice of the second respondent that large scale irregularities were committed in the affairs of the Society, an enquiry was ordered under Section 81 of the Tamil Nadu Cooperative Societies Act, 1983 on 09.10.2002. On the basis of the enquiry report, a Surcharge proceedings was initiated under Section 87(1) of the said Act against the third respondent and board of directors. On the basis of the materials and the enquiry report, the second respondent passed a surcharge order on 30.09.2003. Challenging the said order, the board of directors who are also parties to the Surcharge order filed an appeal in CMA.CS.No.9 of 2007 before the first respondent and the same was allowed by stating that only the third respondent is responsible for the loss sustained to the society. Pursuant to that, the second respondent filed a criminal complaint against the third respondent and the same is pending. Further, the society has taken disciplinary action against the person responsible for the loss to the society. At this time, the third respondent filed an appeal in CMA(CS).No.17 of 2004 before the first respondent. After considering the contentions of the third respondent, the appeal has been allowed. Against the Judgment and Decree passed Appellate Tribunal, the petitioner has filed the present writ petition before this Court.
2. According to the petitioner, the said appeal was allowed on the ground that the second respondent has not furnished a copy of the enquiry report to the petitioner. The Appellate court has held that the Deputy Registrar namely the second respondent has not followed the provisions under Section 87 (4) of the Tamil Nadu Cooperative Societies Act, 1983.
3. The learned counsel for the petitioner would submit that by allowing the above appeal on the ground that the petitioner has not received a copy of the enquiry report is unsustainable by law, since it is an admitted fact the same has been furnished to the third respondent and the same has been admitted by the petitioner by letter dated 08.09.2003. Insofar as the other ground is concerned, for not following the provisions under Section 87(4) of the said Act, the Appellate court ought not to have allowed the appeal but remanded to the second respondent to consider the matter afresh.
Therefore, the order passed by the Tribunal is liable to be quashed.
4. The learned counsel for the third respondent third respondent could not be disputed the letter dated 08.09.2003. Therefore, the learned counsel for the third respondent requests that in the event of the impugned Judgment is set aside and remanded to the first respondent, an appropriate opportunity may be given to the third respondent to raise additional grounds before the Appellate authority.
5. Considered the rival submissions made by the parties concerned and perused the materials.
6. It is an admitted fact that the said enquiry report has been furnished to the third respondent. Therefore, the findings rendered by the Appellate Tribunal on this ground is liable to be set aside. Insofar as the other ground is concerned, the second respondent has not followed the provisions under Section 87 (4) of the Act, has to be decided by the Appellate court on merits. Hence, the order of the Appellate Tribunal is liable to be set aside.
7. In view of the above facts and circumstances of the case, the Judgment in CMA(CS).No.17/2004 dated 30.10.2008 passed by the Appellate Tribunal is quashed and remanded to the first respondent namely the Appellate Tribunal, to consider the matter afresh and to decide the appeal on merits and in accordance with law, after providing an opportunity to the parties concerned, to raise additional grounds, if any, by the parties concerned.
8. In the result, the writ petition is allowed with above terms. Consequently, the connected miscellaneous petition is closed. No costs.
12.09.2017 Speaking/Non-speaking order Index : Yes/No Internet : Yes/No lok D.KRISHNAKUMAR. J, lok To
1. The Presiding Officer, Principal District Judge/ Cooperative Tribunal, Namakkal
2. The Deputy Registrar of Cooperative Societies, Namakkal Circle, Namakkal District W.P.No.5082 of 2010 and MP.No.1 of 2010 12.09.2017