Patna High Court - Orders
Ram Sanjivan Prasad Yadav vs The State Of Bihar & Ors on 8 February, 2013
Author: Jayanandan Singh
Bench: Jayanandan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.916 of 2013
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1. Ram Sanjivan Prasad Yadav S/O Late Basudeo Rai R/Ovillage-
Punarwara,P.S.- Runi Saidpur, District- Sitamarhi, Presently The Chairman
(Adhyaksh) Of Tirhut Dugdh Utpadak Sahkari Sangh Ltd., Muzaffarpur
Hereinafter Referred To Timul
.... .... Petitioner/s
Versus
1. That State Of Bihar
2. The Principal Secretary Null Deptt. Of Co-Operation, Vikash Bhawan,
Jawahar Lal Nehru Marg,Patna
3. Registrar, Co-Operative Societies, Bihar
4. Pradip Kumar Sinha Joint Registrar, Co-Operative Societies, Bihar
5. Dinesh Kumar, Asstt. Registrar Co-Operative Societies, Bihar
6. Managing Director Co-Operative Milk Federation (Comfed), Near
Vetenary College, Patna
7. Managing Director Tirhut Dugdh Utpadak Sahkari Sangh Ltd. (Timul),
Muzaffarpur
.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.1890 of 2013
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1. Sitaram Roy S/O Shri Ram Briksh Roy R/O Village & P.O.- Banaul, P.S.
Nanpur, District- Sitamarhi
2. Nathu Sah S/O Late Buddhu Sah R/O Village Sarmastpur, P.O. Chowk
Sarmastpur, P.S. Sakra, District- Muzaffarpur
3. Nand Kishore Rai S/O Late Deo Narayan Rai R/O Village- Rampur
Bakhri, P.O. Basantpur Bakhri, P.S. Sakra, District- Muzaffarpur
4. Manju Devi W/O Shri Vijoy Kumar R/O Village- Harsingpur Nautan,
P.O.- Muraul, P.S. Sakra, District- Muzaffarpur
5. Urmila Devi W/O Shri Bhikhari Singh R/O Village- Chakrawe Maniyari,
P.O. Chandanpatti, P.S. Sakra, District- Muzaffarpur
6. Ram Shresth Prasad S/O Late Bhagirath Mahto R/O Village & P.O.-
Gannipur Bejha, P.S.- Sakra, District- Muzaffarpur
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Principal Secretary Department Of Co-Operation, Govt. Of Bihar,
Room No. 280, 2nd Floor, 'Vikash Bhawan', Jawahar Lal Nehru Marg,
Patna-800015
3. The Chairman, Co-Operative Milk Federation (Comfed)-Cum-Principal
Secretary Department Of Animal Husbandary & Fisheries, Govt. Of Bihar,
2nd Floor, 'Vikash Bhawan', Jawahar Lal Nehru Marg, Patna-800015
4. The Registrar, Co-Operative Societies, Bihar Room No. 256, 2nd Floor,
'Vikash Bhawan', Jawahar Lal Nehru Marg, Patna-800015
5. Shri Rajesh Kumar Father'S Name Not Known Ex-Registrar, Co-
Operative Societies And Now Director, Animal Husbandry, Bihar, Room
Patna High Court CWJC No.916 of 2013 (4) dt.08-02-2013
2
No. 153, 1st Floor, 'Vikash Bhawan', Jawahar Lal Nehru Marg, Patna-
800015
6. The Managing Director Co-Operative Milk Federation (Comfed), Near
Veterinary College, Patna-800014
7. Smt. Harjot Kaur W/O Shri Deepak Kumar Singh Managing Director,
Co-Operative Milk Federation (Comfed), Near Veterinary College, Patna-
800014
8. The District Audit Officer, Co-Operative Societies, Muzaffarpur
9. The Managing Director Tirhut Dugdh Utpadak Sahkari Sangh Ltd.
(Timul), Muzaffarpur
10. Shri Vijoy Kumar Father'S Name Not Known Managing Director,
Tirhut Dugdh Utpadak Sahkari Sangh Ltd. (Timul), Muzaffarpur
11. The Joint Registrar, Co-Operative Societies Marketing, Bihar, 2nd
Floor, 'Vikash Bhawan', Jawahar Lal Nehru Marg, Patna-800015
12. Shri Pradeep Kumar Sinha Father'S Name Not Known Joint Registrar,
Co-Operative Societies, Marketing, Bihar, 2nd Floor, 'Vikash Bhawan',
Jawahar Lal Nehru Marg, Patna-800015
13. The Divisional Joint Registrar Co-Operative Societies, Tirhut Division,
Muzaffarpur
14. Shri Dinesh Kumar, Assistant Registrar Co-Operative Societies,
Training Reserve, Bihar, 2nd Floor, 'Vikash Bhawan, Jawahar Lal Nehru
Marg, Patna-800015
.... .... Respondent/s
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Appearance :
(In CWJC No.916 of 2013)
For the Petitioner/s : Mr. Kishore Kumar Sinha
For the Respondent/s : Mr. Rajiv Kumar Singh Gp2
(In CWJC No.1890 of 2013)
For the Petitioner/s : Mr. Arun Kumar
For the Respondent/s : Mr. Manoj Kr. Ambasta Gp14
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CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGH
ORAL ORDER
4 08-02-2013Learned counsel appearing in the 1st writ application has made the following submissions:-
"That the final audit report has not been given to the petitioner, communication of which is Annexure-12; that without hearing and giving opportunity to the petitioner, the Registrar, Cooperative Societies has initiated the surcharge proceeding against the petitioner and the Managing Director as well as Patna High Court CWJC No.916 of 2013 (4) dt.08-02-2013 3 members of the Board. On the basis of this initiation of surcharge proceeding, the respondent no.7 has passed order dated 4.1.2013 holding the petitioner disqualified for the post of Chairman of the Society without giving any opportunity of hearing to the petitioner; that the appointing authority of the Managing Director is the Board under the signature of Chairman and hence the Managing Director has no authority under the law to pass order against the petitioner; that earlier to the present final report, three audit reports were there in which there was no findings against the petitioner, but the respondent nos.3, 6 and 7 all the time wanted to remove the petitioner from the post and so they have managed to get another audit report and on that basis the surcharge proceeding has been initiated with a motive to remove the petitioner from the post of Chairman; that this Court has already held vide order, as contained in Annexure-16, that nobody can be held disqualified without giving any opportunity to him in compliance with the principles of natural justice; that the petitioner is ready to get fresh audit held by any independent agency."
Learned counsel appearing in the 2nd writ application for the petitioners made the following submissions:-
"That by memo no.4926 dated 20.09.2012 the Registrar has directed for enquiry and constituted a team of three auditors Patna High Court CWJC No.916 of 2013 (4) dt.08-02-2013 4 led by respondent no.14, but respondent no. 14 has not taken part in the enquiry and hence, enquiry report cannot be taken into consideration for initiation of surcharge proceeding; that in terms of Rule 57 of the Bihar Cooperative Societies Rules, 1959 the Registrar can differ with the audit report and pass appropriate orders. However, he has no authority under the Rules to direct for further auditing or enquiry; that without approval of the audit report the surcharge proceeding has been initiated which is contrary to the provisions of Section 40 of the Act; that from the records it is apparent that respondent nos.5, 7, 10 and 12 have acted on malice and have expedited the submission of the audit report in extraordinary haste which shows that they had acted with premeditated mind; that earlier audit was done by the District Audit Officer who is the competent authority. However, not being satisfied with the same the respondents have got audit done by a junior officer and subordinate to the District Audit Officer and have acted on the same with malafide intention."
The submissions of learned counsels for the petitioners are not required to be considered by this Court at this stage as the surcharge proceeding has been initiated recently and no further action has been taken in the matter. Petitioners have only been noticed and they are required to appear in the surcharge Patna High Court CWJC No.916 of 2013 (4) dt.08-02-2013 5 proceeding and file their objections.
In the circumstances, to examine the matter threadbare on facts as well as in respect of maintainability and continuance of surcharge proceeding and since the submissions of learned counsels for the petitioners are also lavels malafide against the officers of the rank of Registrar and the members of the audit team constituted by the Registrar, this Court proposed to learned counsels for the petitioners to opt for hearing of the matter by any higher authority of the Cooperative Department, after consulting their clients. The counsels for the petitioners propose that the matter may be heard by the Secretary of the Cooperative Department.
In the circumstances, this Court directs the Registrar, Cooperative Societies to transmit the records of the surcharge proceeding along with all connected records of the matter to the Secretary, Cooperative Department latest by Thursday (14.02.2013). On receipt of the records, the Secretary, Cooperative Department shall proceed with the hearing of the surcharge proceeding, giving reasonable time to the petitioners, not exceeding one week to file their objections, written statements and the grounds of challenge to the proceeding. Thereafter he shall fix up a firm date for hearing of the matter on which date he shall hear Patna High Court CWJC No.916 of 2013 (4) dt.08-02-2013 6 the matter and pass final orders. He shall make all endeavours to conclude the proceeding within one month from the date of receipt of records. The petitioners shall cooperate in the proceeding at all stages and on all dates. However, in case, the proceeding is not concluded within one month for no fault of the petitioners, the Secretary shall consider granting interim protection to the concerned petitioners. For this purpose, petitioners will be at liberty to file an application before the Secretary, in case they intend to file nomination in any election which shall be considered by the Secretary in the light of the facts and circumstances of the case delay in deciding the matter.
The writ applications are disposed of with the aforesaid observations and directions.
(Jayanandan Singh, J) Arvind/-