Madras High Court
A. Arumugam vs Deputy Registrar Of Co-Op. Societies, ... on 25 February, 1998
Equivalent citations: 1998(3)CTC287
ORDER
1. This revision is filed under Art. 227 of the Constitution, of India by the petitioner against initiation of surcharge proceedings under Sec. 87(1) of the Tamil Nadu Co-operative Societies Act which was later on confirmed in Appeal, viz., C.M.A.No.72 of 1994, on the file of Special Tribunal for Co-operative Cases, i.e., District Judge, Villupuram.
2. By the impugned decision, the appellant, i.e., the revision petitioner herein, was made liable for nearly Rs.1,50,000.
3. The appellant is Senior Inspector of Co-operative Societies and he was deputed to work as Secretary in Vellimalai large-sized Multi-purpose Co-operative Society, second respondent herein. The Deputation was from 1979 to 17.1.1981. During this period, inquiry under Sec.65 of the Tamil Nadu Co-operative Societies Act, 1961 was ordered into the affairs of the Society and the appellant was prosecuted for having failed to account for a sum of Rs.10,000 on the ground that it was misappropriated by him. Criminal proceedings were initiated under Sections 409, 477-A and 201 read with Sec. 34, I.P.C. Simultaneously the appellant was suspended from service by order dated 26.9.1983 on the ground that a complaint of criminal offence was under trial. The petitioner herein was charged of having caused deficiency to the assets of the Society, misappropriation of funds, criminal breach of trust and other irregularities committed in the working of the society. In all, six charges were levelled against him under Sec.71 of the old Act. Notice was received by the petitioner on 24.9.1982. He wanted copies of the documents on the ground that charges have been framed. It is the grievance of the petitioner that he was not given copies of the documents in time, and in the meanwhile, in the criminal case, he was convicted, and the appeal preferred by him also went against him. In criminal revision, it was found that he was not guilty and he was honourable acquitted. Consequent to the acquittal petitioner was reinstated. But immediately thereafter he was suspended. It is said that the petitioner, after suspension, wanted to co-operate with the enquiry, and even though he requested for copies, they were not given in time, and, even though he was present for further progress of the proceedings, the same was being adjourned from time to time. Finally, on 27.6.1991, a notice was issued by the first respondent asking the petitioner herein to appear for an enquiry on 11.7.1991. The petitioner could not appear on that date since the address to which it was sent was not the correct address. Stating that he was absent, an Award was passed against him. When the matter was taken in appeal before the lower Court, the same was without success. The same is challenged under Art. 227 of the Constitution of India. Learned counsel for petitioner submitted that in this case there is a gross violation of the principles of natural justice, and in fact, the respondents were biased against him, and they have already decided to pass an Award against him, and the notice dated 27.6.1991, asking him to appear on 11.7.1991, was only a farce.
4. It is further submitted by learned counsel for the petitioner that the Order dated 11.7.1991 issued by the first respondent makes it clear that he has pre-judged the issue. Learned counsel for the petitioner also brought to my notice that in the Award, there are two dates mentioned, viz., 6.6.1991 and 11.7.1991. It is seen that the Award had been prepared on 6.6.1991 itself. Even though he was asked to appear only on 11.7.1991 for enquiry, and in fact the notice itself was sent to him only on 27.6.1991, the Award contains the date 6.6.1991, which shows that the Authorities have pre-judged the issue. It is further alleged that the first respondent himself has suspended the petitioner and subsequently after his acquittal, he was reinstated in service. The very same first respondent himself has issued a notice on 24.9.1982 showing his correct address. At that time, the petitioner was employed at Kallakkurichi, and if only the subsequent notice dated 21.6.1991 had been sent to that address, he could have received it. But, for reasons best known to the respondents, the subsequent communication was sent to a wrong address, and so he could not appear. On 11.7.1991, petitioner herein did not appear, and an ex parte order was passed on that day itself.
5. When this argument was put forward by learned counsel for petitioner. I asked the learned Government Advocate as to how the State could support the impugned Order. The learned Government Advocate was at pains to support it. But. he only said that even before 1991 there were laches on the part of the petitioner in participating in the proceedings, and he was only seeking adjournments from time to time. Learned Government Advocate submitted that as per records, the procedure adopted by the Authorities below, in noting the two dates, viz., 6.6.1991 and 11.7.1991, was improper, and further, declaring the petitioner ex parte was also not correct.
6. After having considered the rival submissions put forward by learned counsel on both sides, I feel that the Orders of the first respondent, which was confirmed in appeal, cannot stand in the eye of law.
7. It is seen that the Authorities have pre-judged the issue even before an enquiry was conducted. An Award had been prepared on 6.6.1991 even before the petitioner participated in the enquiry. The Authorities acted illegally.
8. On 27.6.1991, a further notice was issued to the petitioner to a wrong address. It is not a case where the respondents were not aware of the correct address of the petitioner. The order of suspension dated 27.4.1991 was sent to the address where the petitioner was working at that time. It is the very same Authority who has passed the Award on 6.6.1991, which has been corrected subsequently as 11.7.1991, adding one more sentence that the petitioner was not present and, therefore, an Award is passed. I do not think that the Authorities have acted fairly in this case. Even though certain allegations are made against the petitioner that he has misappropriated funds, the petitioner is entitled to be heard before a liability is fastened on him. On going by the memorandum of grounds of appeal filed before the Appellate Authority, it is seen that the petitioner has got a valid defence which is required to be considered by the Authority. That opportunity was denied to the petitioner is clear from the proceedings taken by the Authorities.
9. The Appellate Authority also confirmed the Order without looking into the records. It is true that reasons have been given by the Appellate Authority. But, I am of the view that they cannot stand a moments scrutiny in the eye of law.
10. In the result, I set aside the impugned Orders on the ground that the petitioner was not given reasonable opportunity to defend himself and put forward his case. The entire proceedings initiated by the respondents under Sec.87(1) of the Co-operative Societies Act and, therefore, set aside. The question whether the petitioner is liable to be proceeded again is a matter to be decided by the Authorities a fresh. But I make it clear that if the Authorities decide to proceed with the matter afresh, the initiation of proceedings and decision taken thereon must be by persons who can act impartially, with notice to the petitioner, and also after giving him a reasonable opportunity to defend himself. It will be only proper that the person who has already signed the Order earlier will not be allowed to continue the proceedings in future as against the petitioner. The Civil Revision Petition is allowed as indicated above, however, without any order as to costs. CMP.No.4588 of 1997 for stay is closed.