Madras High Court
M.Suresh vs The Deputy Registrar Of Co-Operative ... on 1 April, 2021
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
CRP.(NPD).No.25 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On : 01.09.2022
Delivered On: 06.10.2022
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
CRP(NPD).No.25 of 2021
and
C.M.P.No.201 of 2021
M.Suresh .. Petitioner/Appellant/Respondent - 2
Vs.
1. The Deputy Registrar of Co-operative Societies,
Office of the Deputy Registrar,
No.52, Kasukkara Chetty Street,
Mannarkudi, Tiruvarur District.
2. N.Dinakaran
3. V.Kumar
4. M.R.Rajappa
5. S.Tamilarasan
6. M.M.Karunanithi
7. R.Jayabal
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CRP.(NPD).No.25 of 2021
8. A.Rajendran
9. V.Gandhi
10. M.Kalaiselvi
11. S.Malarvizhi
12. D.Rengaiyan
13. P.Sathyamurthy
14. C.Muniyandi
15. S.Indra
16. K.Subramanian
17. The President
T-1488 Paamani Primary Agriculture
Co-operative and Credit Society Ltd.,
Keelmel Sadhara Street,
Mannargudi,
Thiruvarur District – 614 001.
(R17 impleaded vide Court Order
dated 01.04.2021 made in
CMP.No.3683/2021
in CRP.No.25/2021) .. Respondents/Respondents/
Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India to set aside the Judgment and Decree passed by the
learned Principal District Judge & Co-operative Special Tribunal,
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CRP.(NPD).No.25 of 2021
Tiruvarur in Co-op.CMA.No. 13/2017 dated 25.10.2018 confirming the
Surcharge Order passed by the first Respondent herein in his proceeding
Na. Ka. 2926/2015 Sa. Pa. Dated 28.06.2017.
For Petitioner : Mr.K.Raja
For Respondents : Mrs.P.Vijaya Devi
Government Advocate for R1 to R17
ORDER
This Petition has been filed to set aside the Judgment and Decree passed by the learned Principal District Judge & Co-operative Special Tribunal, Tiruvarur in Co-op.CMA.No. 13/2017 dated 25.10.2018 confirming the Surcharge Order passed by the first Respondent herein in his proceeding Na. Ka. 2926/2015 Sa. Pa. Dated 28.06.2017.
2. The Learned Counsel for the Petitioner submitted his arguments. As per the submission, three charges viz., 1 (1), 1(2), 1(3) and 1(4) were made against the Petitioner herein/Suresh. The Learned Counsel for the Petitioner invited the attention of this Court to each of the charges in page No.134 of the typed set and also invited the attention of this Court to the 3/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 page No.145, regarding charges 1 to 28 and also relied on the ruling of the Judgment of the High Court in G.Ganesan Vs. The Commissioner of Sugar, Chennai & Others, reported in CDJ 2019 MHC 4275, particularly para No.8, which is extracted hereunder:
“8. ... However, under Section 87 of the Tamil Nadu Co-operative Societies Act, surcharge proceedings were initiated against the Principal namely the revision petitioner also and he was found guilty by the Surcharge Officer. The findings of the Surcharge Officer clearly shows that though all the alleged forgery and other aspects were committed only by the concerned officers, who were given a specific duties to that aspect, the revision petitioner also responsible for that forgery on the ground that he put his initial, being the Principal of the polytechnic. Except the above, the Surcharge Officer has not found that the revision petitioner also willfully acted in the misappropriation and there is willful, deliberate negligence on his part. In the absence of any findings with regard to the willfull negligence on the part of the revision petitioner for such misappropriation, merely because he was the principal of the polytechnic, he cannot be fashioned with liability.” The same ruling was cited by the Learned Single Judge, in the case 4/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 of CRP.(NPD).Nos.428 & 429 of 2021 dated 29.11.2021.
2.1. It is the submission of the Learned Counsel for the Petitioner that while the Revision Petitioner was employed as fertilizer salesman in the Co-operative Society, he had collected money and handed over the same to the then Secretary of the Co-operative Society. The then Secretary also given written statement admitting the same. Therefore, the charges framed against the Petitioner for each charge proceedings had been initiated will not lie. The Learned Special Tribunal, Principal District Judge, Tiruvarur has not considered the same and dismissed the Co-
op.CMA.No.13 of 2017. Aggrieved by the same, the Civil Revision Petition has been filed under Article 227 of the Constitution of India.
2.2. The Learned Counsel for the Petitioner submits that the reported ruling in CDJ 2019 MHC 4275, and the decision in CRP.(NPD).Nos.428 & 429 of 2021 squarely apply to this case and prayed to allow this Civil Revision Petition and set aside the order passed by the Learned Principal District Judge, Tiruvarur in Co.op.CMA.No.13 of 2017. While proceeding with the arguments, it was pointed out that only, 5/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 the impleaded party R17 will be able to state as to whether the Petitioner had paid the amount and brought on record.
3. Mrs.Vijaya devi, learned Government Advocate appearing for the Respondents submitted the arguments. As per her submissions, the Petitioner was a salesman in the Society. The second Respondent was the Secretary of the Society. The staff of the Society misappropriated Rs.4,85,83,000/-. Those who were responsible for the misappropriation of the amount to be deposited in the account of the Society did not come forward to compensate the loss. The Complaint preferred against the responsible Staff and Officers of the Co-operative Societies/Pamani Primary Agricultural Co-operative Society who were responsible for causing loss to an extent of Rs.4,85,83,000/- had been proceeded against by the Registrar of Co-operative Societies. The Complaint is pending before the learned Judicial Magistrate. The Surcharge proceedings were initiated by the Deputy Registrar of Co-operative Societies, (Mannargudi Co-operative Circle), Tiruvarur District as per Section 87 of the Co- operative Societies Act in Na.Ka.No.2926/2015/Sa. Pa dated 28.06.2017 6/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 in which the Petitioner herein is arrayed as second Respondent who is a fertilizer salesman. After conducting the enquiry, the charge against the salesman/Petitioner herein viz., M.Suresh had been stated in the tabular column in the proceedings of the Deputy Registrar of Co-operative Societies Mannargudi Circle, Tiruvarur District, which is extracted hereunder:
S.No. Charge Details of Loss Persons found responsible Amount for not depositing the Loss amount into the credit of the Society are 1 1 (1) From 13.04.2013, the 1. M.Suresh (Fertilizer 41113 proceeds of sale had not Salesman) been deposited
2. N.Dinakaran (Secretary of Society (in-charge))
3. M.M.Karunanidhi (Sub Registrar of Co-operative Societies (Retired)) 1(2) From 22.07.2013 to 1. M.Suresh (Fertilizer 232304 06.11.2013, the proceeds Salesman) of sale had not been deposited 2. N.Dinakaran (Secretary of Society (in-charge))
3. 10 Administrative Committee Members 1(3) From 06.11.2014, the 1. M.Suresh (Fertilizer 73 proceeds of sale had not Salesman) been deposited
2. N.Dinakaran (Secretary of Society (in-charge)) 7/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021
3. 10 Administrative Committee Members 1(4) From 29.08.2014 to 1. M.Suresh (Fertilizer 59161 05.11.2014, the proceeds Salesman) of sale had not been deposited 2. N.Dinakaran (Secretary of Society (in-charge))
3. 10 Administrative Committee Members 2 2 From the Fertilizer Sale 1. M.Suresh (Fertilizer 27360 as per Bill No.185249 Salesman) dated 20.03.2013 over writing caused financial 2. N.Dinakaran (Secretary loss to the Society of Society (in-charge))
3. M.M.Karunanidhi (Sub Registrar of Co-operative Societies (Retired)) 3.1. The learned Counsel for the Respondent invited the attention of this Court to the cheque for a sum of Rs.2,00,000/- had been collected from the Pamani Primary Agricultural Co-operative Societies.
3.2. The learned Counsel for the first Respondent invited the attention of this Court to the letter alleged to have been written by the Secretary of the Society stating that the salesman had handed over the sale proceeds to the Secretary as per Register maintained by the Society and had been credited by the Society letter dated 21.01.2015.8/33
https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 3.3. It is the submission of the learned Counsel for the first Respondent that this letter had not been addressed to anyone, it is only a fictitious letter. No documents are supporting the submission are found in the records.
3.4. The learned Counsel for the first Respondent invited the attention of this Court to another charges in the tabular column:
S.No. Charge Details of Loss Persons found Amount responsible for not Loss depositing the amount into the credit of the Society are 1 6 From 19.08.2013 to 1. M.Suresh (Fertilizer 270720 07.10.2013, the proceeds Salesman) of the sale of rice seeds are not handed over to the 2. N.Dinakaran Society and not brought (Secretary of Society (in-
into the account of the charge)) Society.
3. 10 Administrative Committee Members 2 7 From 19.08.2013 to 1. M.Suresh (Fertilizer 4770 07.10.2013 in CR 1009 Salesman) sale of rice seeds and the sale of ADT 38 rice seeds 2. N.Dinakaran sold less than the value (Secretary of Society (in-
and cause loss. charge)) 9/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 3. 10 Administrative Committee Members 10/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021
3.5. The learned Counsel for the Respondent had invited the attention of this Court to the Surcharge Order issued by the first Respondent, the relevant portions are extracted hereunder:
tpij bey;tpw;gid 19/08/2013 Kjy; 07/10/2013 tiu tpw;gid bra;j bjhif U:/ 2.70.720/- epjpapHg;g[fF ;
fhuzkhdtu;fs; vt;tpjj;jpy; bghWg;ghfpd;wdu; vd;w tpdhtpw;F tpilfhz Kw;gLk;nghJ 19/08/2013 Kjy; 07/10/2013 tiu bey; tpw;gid rpl;lhgo bra;ag;gl;Ls;sj; bjhif U:/ 2.70.720/- gpupt[ 81 tprhuiz mYtyu; cWjpg;gLj;jp mj;bjhif U:/ 2.70.720/- xg;gilj;J urPJ bgwhky; epjpapHg;g[ Vw;gLj;jpa tpw;gidahsuhftpUe;j jpU/vk;/Rnu!; kw;Wk; r';fj;jpd; tutpd';fis tr{ypj;J r';f fzf;fpw;F tut[itf;fhky; r';f brayhsuhgtpUe;j jpU.vd;/jpdfud; Mfpa ,UtUk; bghWg;ghfpd;wdu;/ ,jid gpupt[ 81 tprhuiz mYtyu; bjspthd tpilahf epU:gzk; bra;Js;shu;/ ,dk; vz;/ 7(1) kw;Wk; 7(2) ? Kot[ ,t;tifapy; r';fj;Jf;F Vw;gl;l epjpapHg;g[ U:/4.770- f;F jpU/vk;/Rnu!;. tpw;gidahsu; jpU/vd;/jpdfud;. brayhsu; (bghWg;g[). r';f epu;thff; FGj; jiytu; jpU/Mu;/b$aghy; kw;Wk; epu;thff;FG cWg;gpdu;fshd jpU/m/uhn$e;jpud;.11/33
https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 epu;thff; FGj; Jizj; jiytu; epu;thff;FG cWg;gpdu;fshd jpU/ tP/fhe;jp. jpUkjp/ vk;/ fiyr;bry;tp. jpUkjp/v!;/kyu;tpHp. jpU/rp/Kdpahz;o. jpU/o/bu';ifad;. jpU/g/rj;jpaK:u;j;jp. jpUkjp/ v!;/ ,e;jpuh. jpU/nf/Rg;ukzpad; Mfpnahu; Tl;lhft[k;. jdpj;jdpahft[k; bghWg;ghfpd;w epiyapy; cutpw;gidahsuhftpUe;j jpU/vk;/Rnu!; jdpahf ,e;epjpapHg;g[ bjhif U:/4.770- apid KGtJk; brYj;jp tpll; ikahy; ,t;tpdk; jz;ltupeltof;ifapypUe;J iftplg;gLfpwJ vd;W Kot[ bra;ag;gLfpwJ/ epjpapHg;g[ ,dk; vz;/ 8(1). 8(2) kw;Wk; 8(3)?f;fhd tHf;bfGtpdh (m) ,e;epjpapHg;g[ ,dk; 8(1) U:/4.60.000-? ehs 21/11/2013 k;. U:/ 3.00.000- ehs; 07/12/2013 k; kw;Wk; U:/2.02.000- ehs; 30/10/2014 Yk; Mff; TLjy U:/9.62.000 gzpahsu;fSf;F fld; tH';fpajhf fzf;F vGjp r';f epjpapid jpU/vd;/jpdfudhy; epjpapHg;g[ Vw;gLj;jg;gl;L cs;sJ/ ,j;bjhif U:/9.62.000 K:d;W njjpfspy; buhf;fkhf vLj;J epjpapHg;g[ bra;ag;gl;ljpy; r';fj;jpd; epu;thff;FG mjd; jiytUk; vt;tpj jila[k; Vw;gLj;jhky;. epjpapHg;g[ Fwpj;J xj;JiHg;g[ mspj;Jk; cs;sdu;/
4. The learned Counsel for the Petitioner by way of reply to the 12/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 arguments of the learned Counsel for the Respondent stated that the Secretary viz., Dinakaran had collected the amount of the sale proceeds from the sales man. He had given it in writing to the salesman and handed over the sale proceeds to him and deposited the same and that had been accepted by the Deputy Registrar of the Co-operative Society who conducted the enquiry. The learned Counsel for the Petitioner submitted that the proceedings were dropped against the sales man in the light of the submission given by the Secretary (in-charge) viz., Dinakaran. The relevant portion is extracted hereunder:
“cutpw;gidahsuhftpUe;j jpU/vk;/Rnu!; jdpahf ,e;epjpapHg;g[ bjhif U:/4.770- apid KGtJk; brYj;jp tpll; ikahy; ,t;tpdk; jz;ltupeltof;ifapypUe;J iftplg;gLfpwJ vd;W Kot[ bra;ag;gLfpwJ/ nkw;fz;l cu tpw;gidj; bjhiffis jpU/vd;/jpdfud;. brayhsu; (bghWg;g[) cu tpw;gid rpl;lhtpy; ifbahg;gkpl;L bgw;Wf; bfhz;Ls;shu; vd;gJ cu tpw;gid rpl;lh goa[k;. jhkjkhft[k;. Fiwthft[k; buhf;fg; g[j;jfj;jpy; tut[ itj;J cs;shu;/” epjpapHg;g[ ,dk; 2 13/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 “r';fj;jpd; cu tpw;gid gpy; vz; 185249 goa[k; cu tpw;gid rpl;lh gf;fk; 31 d; goa[k; 20.03.2013 y; cu tpw;gidj; bjhif U:/ 27360 cs;sJ/ ,j;bjhif r';fj;jpy; brYj;jg;gl;ljw;fhd Mjhuk; ,y;iy/ 20/03/2013 y; ,r;r';f cu tpw;gidahsuhf gzpg[upe;j jpU/vk;/Rnu!; jkJ 01/08/2016 njjpa tpsf;fj;jpy; 2013-2014 kw;Wk; 2014-2015 k; Mz;Lfspy; tpw;gidj; bjhifia bgw;Wf; bfhz;ljhf jpU/vd;/jpdfud;. brayhsu; (bghWg;g[) vGj;JK:ykhf bjuptpj;Js;sij gpupt[ 81 tprhuiz mwpf;if K:yk; bjupatUk; epiyapy; ,j;bjhifia jhk; brYj;jtpy;iy vd;W TwtJ jtwhdJ vd;Wk;. jk; kPJ bjhlug;gl;l jz;ltup eltof;iff;F Mjhukhf ,Uf;f ntz;oa tpw;gid gpy;fs;. tpw;gid rpl;lh. ,Ug;g[g; gjpntL. r';f buhf;fg;g[j;jfk;. jpdg;ngnuL Mfpaitfspd; efy;fs; mspf;fg;gl;l gpd; jkJ tpsf;fj;jpid mspf;f xUkhj fhy mtfhrk; cutpw;gidahsuhftpUe;j jpU/vk;/Rnu!; nfhupdhu;/ Mtz';fis 20/09/2016 njjpfspy; ghu;itapl;L Fwpg;bgLj;Jf; bfhs;s kd;dhu;Fo ruf Jizg;gjpthsu; fojk; e/f/2926-2015-r/g/ tpsf;fk; mspf;ftpy;iy/ 25/10/2016. 06/02/2017. 20/02/2017 Mfpa njjpfspy;
tprhuizf;F M$uhFkhW gpwg;gpf;fg;gl;l
miHg;ghizfspd;go tprhuizf;F M$uhfp jkJ
14/33
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CRP.(NPD).No.25 of 2021
jug;gpidf; Twt[kpy;iy/
nkw;Fwpg;gpl;l 20/03/2013 ,y; ,r;r';f brayhsu; (bgh) ,Ue;j jpU/vd;/jpdfud; jkJ 21/11/2016 njjpa tpsf;fj;jpy; cutpw;gidahsUf;F jPu;khd tHp epu;zapf;fg;gl;l flikfs; kw;Wk; bghWg;g[fspd; go jpU/vk;/Rnu!; tpw;gidahsnu cutpw;gid kw;Wk; bjhif brYj;JjYf;F bghWg;ghthu; vd;Wk;. brayhsu; vd;fpw Kiwapy; ,jid fz;fhzpf;f ntz;oaJ jdJ bghWg;ghFk; vd;Wk;. ,jdpy; jkJ Wilful negligence vJt[k; ,y;iy vd;Wk;. cutpw;gidahsupd; jtWjYf;F jhk; vt;tifapYk; cle;ijahf ,Ue;jjpy;iy vd;Wk;. vdnt ,t;tpdj;jpy; jk;kPJ gpwg;gpf;fg;gl;l jz;ltup eltof;iffspypUe;J tpLtpf;FkhWk; Twpa[s;shu;/ 25/10/2016. 29/09/2016. 23/01/2017 njjpfspy;
tprhuizf;F M$uhFkhW miHg;ghiz gpwg;gpf;fg;gl;likf;F ,tu; tprhuizf;F M$uhfp jkJ jug;gpidf; Twtpy;iy/ 16/08/2016. 17/08/2016. 18/08/2016 njjpfspy; Mtz';fisg; ghu;itapl mDkjpf;fg;gl;likf;Fk; brayhsu; bghWg;g[ jpU/vd;/jpdfud; Mtz';fisg; ghu;itapl;L efy; vLj;Jf;bfhs;stpy;iy/ 13/04/2013y; ,r;r';fj;jpd; brayhl;rpauhf ,Ue;j jpU/vk;/vk;/fUzhepjp Tl;Lwt[ rhu;gjpthsu;-Xa;t[ jkJ 15/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 17/11/2016 njjpa tpsf;fj;jpy; jhk; ftdf;Fiwthf bray;gl;L ,r;r';f brhj;Jf;fSf;F Fiwt[ cz;lhf fhuzkhf ,Uf;ftpy;iy vd;Wk;. epjpapHg;g[ U:/41.113- k; ,jw;fhd tl;o U:/12.695-k; r';f brayhsu;(bghWg;g[) jpU/vd;/jpdfud; K:yk; 25/06/2015 y; r';fj;jpy; jpUg;gp Tl;L bghWg;ghf;fp jz;ltup mwptpg;g[ bra;Js;sij jkjstpy; jpUk;gg; bgw;Wf; bfhs;s ntz;LkhW nfl;Lf; bfhz;Ls;shu;/ tprhuizf;F M$uhFkhW miHg;ghizfs;; gpwg;gl;likf;F ,tu; 18/01/2017 njjpapy; tprhuizf;F M$uhfp neuo vGj;JK:yk; tpsf;fk; mspj;jhu;/” 4.1. It is the submission of the learned Counsel for the Petitioner that after the surcharge was imposed on the Petitioner, the Petitioner had refunded the amount, which is extracted hereunder:
Miz “,j;jz;ltup eltof;ifapy; mwptpg;gpy; tupir vz; 1 Kjy; 28 ,d';fSf;fhd epjpapHg;g[ U:/4.85.85.648- mwptpf;fg;gl;oUe;jJ/ ,jpy; ,dk; 7 y; jv{:rht{u; Tl;Lwt[ tpw;gid ,izaj;jpy; tpj;jpahrj; bjhif brYj;jg;gl ntz;oapUg;gij Fw;wk; rhl;lg;gl;l egu; jpU/Rnu!; cu tpw;gidahsu; jhnd bghWg;bgLj;J brYj;jpa[s;shu;/ 16/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 ,j;bjhif nghf vv{;rpa bjhif U:/4.85.80.878- epjpapHg;g[ vd jz;ltup cWjpg;gLj;jg;gLfpwJ/ bkhj;jKs;s ,d';fspy; 1 Kjy; 28 ,d';fspy; (7tJ ,dk; eP';fyhf) kPjKs;s epjpapHg;g[ U:/4.85.80.878- f;F bjhlu;g[ilatu;fs; gl;oay;go fyk; vz; 4 y; Fwpg;gpl;Ls;s egu;fs; fyk; vz;
5 y; Fwpg;gpl;Ls;s epjpapHg;g[j; bjhifapid epjpapHg;g[ Vw;gLj;jg;gl;l ehspypUe;J cupa tl;oa[ld; jdpj;jdpahft[k; Tl;lhft[k; l;o.1488 ghkzp bjhlf;f ntshz;ik Tl;Lwt[ r';fj;jpw;F brYj;j ntz;Lk; vd;W 1983 Mk; Mz;L jkpH;ehL Tl;Lwt[ r';f';fspd; rl;lg;gpupt[ 87 d; fPH; cj;jutplg;gLfpwJ/” 4.2. The amount had been paid as per the findings given by the Deputy Registrar of Co-operative Societies, the copy of the entire file annexed along with typed set by the learned Counsel for the Petitioner. The letter written by the then Secretary (in-charge) of Pamani Primary Agricultural Co-operative Society had given written undertaking with the fertilizers salesman viz., Suresh had handed over the sale proceeds to him as Secretary and that had been recorded by the Deputy Registrar, Co- operative Societies who conducted enquiry regarding the Surcharge 17/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 proceedings had been relied on by the learned Counsel for the Petitioner as counter reply to the arguments of the learned Counsel for the first Respondent.
4.3. It is the contention of the learned Counsel for the Petitioner that the Petitioner had remitted the amount of Rs.2,00,000/- dated 23.01.2014, that was mentioned in the Column No.5 of the charges and that has been accepted in the findings given by the Co-operative Society. The Appeal before the learned Principal District Judge, Tiruvarur preferred by the Petitioner herein was dismissed without considering the findings of the Deputy Registrar, Co-operative Society who was the Surcharge Officer.
,dk; 4(1) f;fhd tHf;fpbyG tpdh (M) “U:/39.206- cu tpw;gidj; bjhif epjpapHg;g[f;F vt;tpjj;jpy; bghWg;ghfpd;wdu; vd;gjw;fhd tpil fhz Kw;gLk;nghJ r';fj;jpy; 05/11/2014 cu tpw;gidj; bjhif U:/40.643- vd;gJk; 18/11/2014 y; cu tpw;gidj; bjhif U:/508- vd;gJk;. 21/11/2014 y; cu tpw;gidj; bjhif U:/448- vd;gJk;. 22/11/2014 y; cu tpw;gid bjhif 18/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 U:/1.06.180- vd;gJk;. 28/11/2014 y; cu tpw;gid bjhif U:/70- vd;gJk;. 29/12/2014 y; cu tpw;gidj; bjhif U:/487- vd;gJk;. 30/12/2014 y; cu tpw;gidj; bjhif U:/2.683- vd;gJk;. 31/12/2014 y; cu tpw;gidj; bjhif U:/21.548- vd;gJk; ,itfis r';f brayhsu; bghWg;gpypUe;j jpU/vd;/jpdfud; bgw;Wf; bfhz;L ifbahg;gkpl;Ls;shu; vd;gJk;. cutpw;gid rpl;lhtpd; go g[ydhfpwJ/ ,j;bjhiffs; md;whlk; buhf;fg;g[j;jfj;jpy; tut[ itf;fg;glhky; 26/11/2014y; U:/1.08.643-k; 23/12/2014y; U:/3.170- k;. 10/01/2015y; U:/21.548-k; kl;Lk; tut[ itf;fg;gl;Ls;sd vd;gJ r';f buhf;f g[j;jfj;jpd;go g[ydhfpwJ/ ,t;tifapy; U:/39.206-Fiwthf tut[ itf;fg;gl;Ls;sJ/ cu tpw;gidj; bjhifapid md;whlk; Kgikahf tut[ itf;fhky;
jhkjkhft[k;. Fiwthft[k; buhf;f g[j;jfj;jpy; tut[ itj;j tifapy; U:/39.206- ,Hg;g[ Vw;gLj;jg;gl;Ls;sJ vd;gJ epU:gzkhfpwJ/” 4.4. The learned Counsel for the Petitioner relied on the following rulings:
(I) The order passed by this Court in CRP(NPD).Nos.428 & 429 of 2021 in the case of Mahalingam Vs. The Deputy Registrar of Co-19/33
https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 operative Societies (Housing), O/o. The Deputy Registrar of Co- operative Societies (Housing), Salem Region, Salem District and others, the relevant portion is extracted hereunder:
“10. As regards C.R.P.No.429 of 2021, the petitioner therein has been accused of causing loss to the Society on six different occasions. As far as the Item No.6, which transaction had happened on 30.03.2007, it is claimed that the petitioner had granted the loan without proper documents. It is also pointed out that there is a mistake in the membership number assigned to the loanee, V.Radhika. It is claimed that a sum of Rs.1,02,230/~ is the loss that has occurred to the Society due to the omission on the part of the petitioner in obtaining proper documents. As regards Item Nos.11, 12, 13 and 14, it is claimed that the loans were advanced without proper inspection and the loanees have not put up construction as required, resulting in financial loss to the Society.
11. It is not stated that as to how the petitioner is responsible for the loss. The surcharge order passed by the Deputy Registrar of Cooperative Society, does not reflect that there was any negligence or callous indifference on the part of the petitioner in discharging his duties, so as to make him liable for surcharge under Section 87 of the Act.20/33
https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021
12. This Court had on various occasions examined the scope of Section 87 of the Act. A Hon-ble Division Bench of this Court in Ajay Kumar Gosh and others Vs. Tribunal for Cooperative Cases ? 2009 (4) MLJ 992, has held that in order to surcharge a person under Section 87, an employee of the Cooperative Society should have done an actionable wrong either by commission or omission in a deliberate and reprehensible manner with reckless callousness and with supine indifference without taking due care and caution ordinarily expected from a reasonable and prudent man. However, if we examine the order of the Deputy Registrar surcharging the petitioner for the loss caused to the Society, the above ingredients are totally absent.
13. The order proceeds in a mechanical fashion saying that the petitioner had issued the cheques without ensuring that construction was put up by the loanees. In one of the instances, namely, Item No.12, the loanee had deposed that she has not received the loan but the then Secretary V.Vishwanathan has taken the loan amount. There is no answer to such a charge raised by the loanee in the surcharge order. The surcharging officer cannot mechanically reproduce the contents of the surcharge notice and mulct the liability on the employees of the 21/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 Society. He is bound to examine the evidence positively and independently and record his findings to the effect that the officer concerned or the employee concerned had committed an act of omission or commission with supine indifference and without taking due care and caution.
14. Every case of non~repayment of the loan cannot provide a cause of action for surcharge under Section 87 of the Act. Section 87 of the Act is an enabling provision, where there is a financial loss to the Society because of commission and omission of the employees, to recover the same by way of surcharge. The way in which the surcharging officer, namely, the Deputy Registrar of Cooperative Society has proceeded shows that he has mechanically initiated surcharge proceedings against the petitioner. He has not adverted to the requirements of Section 87 of the Act before passing the surcharge orders.
15. A reading of Section 87 of the Act would show that, in order to invoke the said Section, it must be shown that, an officer or servant of the Society has misappropriated or fraudulently retained any money or other property or been guilty of breach of trust in relation to the Society or has caused any deficiency in the assets of the Society by breach of trust or willful negligence or has made any payment which is not in 22/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 accordance with the Act, Rules or by~laws?.” (II) CDJ 2019 MHC 4275 in the case of D.Ganesan Vs. The Commissioner of Sugar, Chennai & Others, the relevant portion is extracted hereunder:
“ 8. I have perused the records. On perusal of the surcharges framed against the parties clearly indicates that one P.K.Ranganathan prepared forged bills, as if, fees had been returned to the students and the bills were placed to the revision petitioner, who was the Principal of the polytechnic at the relevant point of time and he put his initial in the said prepared bills. All the charges in forging the document primarily made only against the staffs i.e. accountant, secretary and cashier. Since the revision petitioner being the Principal of the polytechnic, he put his initial and thereafter, the bills were approved by the Chairman of the polytechnic These facts are not in dispute. However, under Section 87 of the Tamil Nadu Co- operative Societies Act, surcharge proceedings were initiated against the Principal namely the revision petitioner also and he was found guilty by the Surcharge Officer. The findings of the Surcharge Officer clearly shows that though all the alleged forgery and other aspects were committed only by the concerned officers, who were given specific duties to that aspect, the 23/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 revision petitioner also responsible for that forgery on the ground that he put his initial, being the Principal of the polytechnic. Except the above, the Surcharge Officer has not found that the revision petitioner also willfully acted in the misappropriation and there is willful, deliberate negligence on his part. In the absence of any findings with regard to the willful negligence on the part of the revision petitioner for such misappropriation, merely because he was the Principal of the polytechnic, he cannot be fashioned with liability.
9. This court in its judgment in K.Govindasamy Vs. A.Rajamani and others reported in 2013(3) MWN (Civil) 27 has held thus.
13. In this case, the 6th respondent has found that the respondents 1 and 2 have caused loss to the Bank to the tune of Rs.6.20 lakhs by dealing with inoperative S.B. Accounts.
Insofar as the petitioners are concerned, the finding of the 6th respondent is that they have not discharged their duties and made themselves liable for the monetary loss caused to the Bank as they have not verified the accounts before granting permission for making the payment. Thus, they are negligent in their duties. This finding of the 6th respondent was confirmed by the Tribunal by observing that the petitioners herein were negligent in discharging their duty. Thus, the only question to be 24/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 decided in these Civil Revision Petitions is as to whether the act of negligence committed by the petitioners would attract surcharge proceedings under Section 87(1) of the Tamil Nadu Co-operative Societies Act or not.
14. A bare perusal of the said provision would show that mere negligence is not enough unless such negligence is also wilful. This issue has, in fact, already been dealt with by this Court on very many occasions. In a decision reported in 1999 (3) MLJ 310 (M.SAMBANDAM VS. THE DEPUTY REGISTRAR (CREDIT) CO- OPERATIVE SOCIETIES), this Court has categorically found that the act of failure to discharge the duties enjoined upon the petitioner therein with regard to direct scrutiny of accounts, examination of vouchers and passing of statement before he signed the minutes book cannot come within the expression "wilful negligence". This Court had in fact considered the scope of Section 71 of the Tamil Nadu Co- operative Societies Act, , 1961 which is analogous to Section 87 of the present Act and after following various decisions, this Court has held at paragraph 14 as follows:-
25/33
https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 "14. In the light of the above mentioned legal position, after considering the charges made against the petitioner, I am unable to accept the conclusion arrived by the respondent 1 and
3. It may be true that the petitioner failed to discharge the duties enjoined upon him with regard to direct scrutiny of accounts, examination of vouchers and passing of statement before he signed the minutes book but this failure cannot come within the expression "wilful negligence" which has been constructed as either by commission or omission, in a deliberate and reprehensible manner, with reckless callousness and with a supine indifference, without taking due care and precaution ordinarily expected from a reasonable and prudent man under those existing circumstances."
15. Similarly in another decision reported in 2009 (4) MLJ 992 ( K.AJAY KUMAR GOSH AND OTHERS VS.
TRIBUNAL FOR CO- OPERATIVE CASES), the Hon'ble Division Bench of this Court considered the scope of Section 87 surcharge proceedings and found that to pass a surcharge order under Section 87 of the Tamil Nadu Co-operative Societies Act , the employees of the Co- operative Society should have done an actionable wrong either by commission or omission in a deliberate and reprehensible manner with reckless callousness and with a supine indifference without taking due care and 26/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 caution ordinarily expected from a reasonable and prudent man under the existing circumstances. It is further observed therein that in the absence of such categorical finding, it is not possible to hold the employees liable with the loss caused to the Society. The Hon'ble Division Bench has passed the said order after considering various earlier decisions. The relevant portions at paragraph 19 and 20 are extracted as follows:-
19. A detailed discussion has been made by making reference to various judgements on this aspect in another judgment reported in Sathyamangalam Co-operative Urban Bank Ltd.,Vs. Deputy Registrar of Co-operative Society and Another (1980 (2) MLJ 17, it is held thus:-
"The degree of negligence that is contemplated under Section 71(1) of the Tamil Nadu Cooperative Societies Act is not mere negligence, but wilful negligence. The word 'wilful' has not been defined in the Act. 'Wilfulness' or 'wantonness' import pre- mediation or knowledge and consciousness that an injury or loss is likely to result from the act done or from the omission to act. It imports a constructive intention as to the consequences which, entering into the wilful act, the law imputes to the offender and in this way a charge, which otherwise would be mere negligence, becomes by reason of a reckless disregard of probable consequences, a wilful wrong. The act done or omitted to be done must be intended or must involve such reckless 27/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 disregard of security and right as to imply bad faith. In examining whether there is wilful negligence, it has to be seen first whether the person concerned is guilty of negligence and if so, whether the aid wilful negligence is the proximate cause of the injury or loss sustained. "
20. In the light of the decisions referred to above, it is clear that to pass surcharge order under Section 87 of the Act, appellants should have done an actionable wrong either by commission or omission in a deliberate and reprehensible manner with reckless callousness and with a supine indifference without taking due care and caution ordinarily expected from a reasonable and prudent man under the existing circumstances. In the absence of such categorical finding by the respondents, it is not possible to mulct the appellants with the loss caused to the Society."
5. On perusal of the finding of the Surcharge Officer, he had clearly stated that the salesman had handed over the proceeds to the Secretary (in- charge). Therefore, the finding regarding charges under 1(1), 1(2), 1(3), 1(4), 2, 6 and 7 is found to be the Secretary of the Society had repaid. As per the finding given by the Co-operative Societies for the fault of the Secretary, the Petitioner herein who is the fertilizer salesman cannot be 28/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 held liable. The counter of the first Respondent states that none of the amount had been credited by the Society as per the Enquiry Report. The statement given by the then Secretary states that the amount had been handed over to him to its default that he had not carried out the same in the Register. Therefore, the charges under 1(1), 1(2), 1(3), 1(4) and 4(1) for the fault of Dinakaran, the Petitioner Suresh cannot be imposed the Surcharge. Similarly, the retired Sub Registrar (Co-operative Societies) viz., Karunanidhi also undertook to pay the amount for which alleged loss had occurred. From perusal of the Enquiry Report under the surcharge proceedings, it is found that the salesman Suresh had handed over the amount to the then Secretary (in-charge) viz., Dinakaran accepted it. Therefore, the finding against the Petitioner herein Suresh is without basis. The rulings of this Court reported in CDJ 2019 MHC 4275 in the case of D.Ganesan Vs. The Commissioner of Sugar, Chennai & Others and another order made in CRP(NPD).Nos.428 & 429 of 2021 in the case of Mahalingam Vs. The Deputy Registrar of Co-operative Societies (Housing), O/o. The Deputy Registrar of Co-operative Societies (Housing), Salem Region, Salem District and others was cited by the 29/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 learned Counsel for the Petitioner herein. The salesman Suresh had handed over the amount sales proceeds to the then Secretary and it had been accepted. The then Secretary viz., Dinakaran during the course of enquiry had given undertaking. Therefore, Appeal having been dismissed without considering the argument of the learned Counsel for the Petitioner that the dismissal of the appeal passed by the learned Principal District Judge (CMA Co-operative) is found without any basis and without any reason.
5.1. The contents of the counter cannot at all be accepted since the clear finding, the then Secretary accepted his liability for not depositing the sale proceeds in to the credit of the Society. Therefore, for the lapses on the part of the Secretary viz., Dinakaran, Pamani Primary Agricultural Co- operative Society, the Petitioner Suresh as fertilizers salesman cannot be fastened with the Surcharge liability.
30/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 5.2. The facts of the case in the light of the reported ruling cited by the learned Counsel for the Petitioner, squarely applies to the facts of this case. Therefore, the contention of the learned Counsel for the first Respondent is rejected because it is to be deposited by the then Secretary (in-charge) and the Sub Registrar of Co-operative Societies (Retired) who was responsible in the relevant point of time. Therefore, the contents of the counter that the amount had not been deposited till date and it will not fastened with the liability of the Petitioner. Hence, the contention of the learned Counsel for the first Respondent is rejected. As far as the Petitioner concerned there is no lapses committed by him. In the light of the reported ruling, the facts of the case squarely applies to the facts of this case. Therefore, this Civil Revision Petition is to be allowed.
In the result, this Civil Revision Petition is allowed. The Judgment and Decree passed by the learned Principal District Judge & Co-operative Special Tribunal, Tiruvarur in Co-op.CMA.No. 13/2017 dated 25.10.2018 confirming the Surcharge Order passed by the first Respondent herein in 31/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 his proceeding Na. Ka. 2926/2015 Sa. Pa. Dated 28.06.2017 is set aside. Consequently, connected Miscellaneous Petition is closed. No costs.
06.10.2022 dh Index: Yes/No Internet: Yes/No Speaking Order/Non-speaking Order To
1. The learned Principal District Judge & Co-operative Special Tribunal, Tiruvarur.
2. The Deputy Registrar of Co-operative Societies, Office of the Deputy Registrar, No.52, Kasukkara Chetty Street, Mannarkudi, Tiruvarur District.
3. The Section Officer, V.R.Section, High Court, Madras.
32/33 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.25 of 2021 SATHI KUMAR SUKUMARA KURUP, J.
dh Pre-delivery Order made in CRP(NPD).No.25 of 2021 06.10.2022 33/33 https://www.mhc.tn.gov.in/judis