Rajasthan High Court - Jodhpur
Mukna Ram vs State And Ors (2024:Rj-Jd:17995) on 24 April, 2024
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2024:RJ-JD:17995] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 1447/2003 Mukna Ram S/o Shri Chola Ram Aged about 63 years, R/o Village Bera Poliyavas, Chak No.1, Post Bilara, District Jodhpur (Raj.).
----Petitioner Versus
1. State of Rajasthan through the Secretary, Cooperative Department, Jaipur.
2. The Cooperative Minister, through the Principal Secretary, Cooperative Department, Jaipur.
3. The Additional Registrar (Appeals) Cooperative Societies, Jodhpur.
4. The Joint Registrar, Cooperative Societies, Jodhpur.
5. The Vyavasthapak, Bilara Vrihat Bahudhandhi Sahakari Samiti Limited, Bilara, District Jodhpur.
----Respondents
For Petitioner(s) : Mr. Karan Parihar for
Mr. Sachin Acharya, Senior Advocate
For Respondent(s) : Mr. Chandraveer Singh Shekhawat
JUSTICE DINESH MEHTA
Order
24/04/2024
1. The orders dated 15.03.2002 and 02.12.2002 passed by Additional Registrar ( Appeals) Co-operative Societies (hereinafter referred to as 'the Appellate Authority') and Co-operative Minister (hereinafter referred to as 'the Revisional Authority') respectively, are subject matter of this writ petition which has been preferred under Article 226/227 of the Constitution of India.
2. Precisely laid, the factual backdrop of the case is that the petitioner was working as a Manager of the Bilara Vrihat Bahudhandhi Sahakari Samiti Limited, Bilara, District Jodhpur (hereinafter referred to as 'the Society'). (Downloaded on 25/04/2024 at 08:41:33 PM) [2024:RJ-JD:17995] (2 of 7) [CW-1447/2003]
3. Admittedly, the date of birth of the petitioner is 06.11.1939 and accordingly, he was to be superannuated on 30.11.1997 on attaining 58 years of age. There is no gainsaying the fact that someone had interpolated petitioner's service book so as to depict his date of birth as 06.11.1940.
4. Hence, treating petitioner's date of birth to be 06.11.1940, he was not made to retire on 30.11.1997 and continued in service, until such fact came to notice of the respondents.
5. Immediately on coming to know of such fact, the petitioner was placed under suspension on 13.08.1998 and thereafter, a disciplinary enquiry was initiated against him under Section 70(b) of the Rajasthan Co-operative Societies Act, 1965 (hereinafter referred to as 'the Act of 1965') for the purpose of recovery of the excess salary the petitioner had drawn.
6. Said inquiry was followed by proceedings of surcharge; provided under Section 74 of the Act of 1965. The Inquiry Officer - Joint Registrar, Co-operative Societies concluded the proceedings in petitioner's favour and exonerated him by his order dated 10.04.2001, inter-alia, observing that the interpolation of the service book was not done by the petitioner. While passing the order dated 10.04.2001, the Joint Registrar relied upon the enquiry conducted under Section 74(2) of the Act of 1965 and held that the salary drawn did not fall within the ambit of misappropriation.
7. Feeling aggrieved with the above referred order dated 10.04.2001, the Society preferred an appeal under Section 125 of the Act of 1965, which came to be allowed by the Additional (Downloaded on 25/04/2024 at 08:41:33 PM) [2024:RJ-JD:17995] (3 of 7) [CW-1447/2003] Registrar (Appeals) Co-operative Societies by an order dated 15.03.2002.
8. While allowing the appeal, the Appellate Authority observed that the fact that petitioner's date of birth was 06.11.1939 was not only known to him, but such fact was admitted by him during the proceedings under Section 70(b) of the Act. The Appellate Authority thus concluded that since the petitioner was aware of his date of birth, his continuation in the office was not proper and he ought to have informed the competent authority that he had attained the age of superannuation.
9. The Appellate Authority therefore held that the salary which he had drawn after his actual date of retirement, i.e. 30.11.1997 is illegal and recoverable under the provisions of Section 74(b) of the Act of 1965.
10. The petitioner preferred a revision petition thereagainst which came to be rejected by the Revisional Authority per-viam order dated 02.12.2002, inter-alia, observing that the petitioner was aware of his correct date of birth and could not have continued beyond 30.11.1997.
11. Feeling aggrieved of the orders dated 15.03.2002 and 02.12.2002 passed by the Appellate Authority and Revisional Authority, respectively, the petitioner has preferred the present writ petition.
12. Learned counsel for the petitioner argued that the proceedings initiated against the petitioner under Section 74 (b) of the Act of 1965 was absolutely illegal and without jurisdiction. He contended that it is clear on record that petitioner had no role in (Downloaded on 25/04/2024 at 08:41:33 PM) [2024:RJ-JD:17995] (4 of 7) [CW-1447/2003] making correction or purported interpolation in the record and therefore, no recovery could have been made from the petitioner in exercise of provisions under Section 74 of the Act of 1965.
13. Learned counsel further argued that in any case, the petitioner had continued to serve the respondents and therefore, the salary he drew was in lieu of the services rendered and therefore, no recovery could be made, particularly when there was no misrepresentation or fraud committed by him.
14. In support of his contention, learned counsel relied upon various judgments:-
(i) Shyam Babu Verma & Ors. Vs. Union of India & Ors. passed by Hon'ble the Supreme Court, reported in (1994) 2 SCC 521.
(ii) Sahib Ram Vs. State of Haryana & Ors.
passed by Hon'ble the Supreme Court, reported in 1995 Supplementary (1) SCC 18.
(iii) Subhkaran Gaur & Ors. Vs. State of Rajasthan & Ors. passed by this Court in S.B. Civil Writ Petition No.3705/1990, decided on 07.07.1999.
15. Learned counsel for the respondents e converso contended that the Appellate Authority and the Revisional Authority have concurrently recorded the fact that despite being aware of his correct date of birth, the petitioner continued in service in order to take undue advantage.
16. Mr. Shekhawat submitted that since the petitioner has illegally continued in the office, the salary taken by him cannot be permitted to be retained.
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17. Heard learned counsel for the parties and perused the material available on record.
18. Concededly, the petitioner's date of birth is 06.11.1939. Such fact has neither been disputed by the petitioner nor is there any evidence to show that his date of birth is 06.11.1940, as has been interpolated or made to reflect in his service record. This being the position, the petitioner ought to have retired on 30.11.1997.
19. The petitioner was working as Manager of the Society and he was the key person or the person responsible for the functioning of the Society. It was therefore incumbent upon none other than the petitioner himself to have retired or caused to be passed an order of superannuation.
20. Be that as it may. Even if no order of superannuation was passed qua the petitioner, he ought to have informed the higher authorities about having attained the age of superannuation and to have said good bye. Every penny drawn after 30.11.1997, when the petitioner had attained the age of 58 years was illegal and without authority of law.
21. The provisions of Section 74 of the Act of 1965 reads thus:-
"74 Surcharge:-(1) If in the course of an audit, inquiry, inspection of the winding up of a co-operative society, it is found that any person, who has taken any part in the organization or management of such society or who is or has at any time been an officer or an employee of the society, has made any payment contrary to this Act, the rules or the bye-laws or has caused any deficiency in the assets of the society by breach of trust or willful negligence or has (Downloaded on 25/04/2024 at 08:41:33 PM) [2024:RJ-JD:17995] (6 of 7) [CW-1447/2003] misappropriated or fraudulently retained any money or other properties belonging to such society, the Registrar may, of his own motion or on the application of the committee, liquidator or any creditor, inquire himself or direct any person authorized by him, by an order in writing in this behalf, to inquiry into the conduct of such person."
22. A first look at the provision aforesaid may give an impression that petitioner's contention is legally correct, but a careful scanning thereof, particularly the expression "or fraudulently retained any money" reveals that if a person receives or retains any money fraudulently, he is liable to pay the same.
23. As long as the fact that the petitioner ought to have retired on 30.11.1997 is not in dispute, any amount received by the petitioner maybe in the name of salary for having worked on the post of Manager is nothing but sort of unauthorizedly, rather fraudulently received money.
24. So far as the judgments which have been cited by learned counsel for the petitioner are concerned, they all deal with the situations when the amount was paid to the petitioners therein without any misrepresentation or fraud committed on their part and therefore, in such situation, the Courts have held that money dispersed to the persons cannot be recovered. In all these cases and in other line of judgments of this Court and by Honb'le the Supreme Court, a rather lenient view has been adopted towards low paid employee, but the petitioner before this Court is a Manager who was practically responsible for managing all the affairs of the Society.
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25. Petitioner's plea of ignorance or innocence is difficult to be swallowed. Without his active role, he could not have continued beyond 30.11.1997. This Court fully agrees with the view taken by the Appellate Authority and Revisional Authority that the petitioner has fraudulently retained or received the amount of the salary despite crossing the age of superannuation.
26. The fact that the petitioner had been exonerated in disciplinary proceedings is of little avail. The crux of the disciplinary proceedings was to determine whether it was the petitioner who had done interpolation or cutting in the service book. The petitioner might have been exonerated in those proceedings for lack of material or evidence but if the petitioner has stood benefited from such interpolation he has to restitute or recompensate the Society.
27. As an upshot of discussion foregoing, the writ petition fails.
28. The stay application also stands dismissed, accordingly.
(DINESH MEHTA),J 4-akansha/-
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