Kerala High Court
V.T.Davis vs The Kerala State Co-Operative Tribunal on 30 July, 2012
Author: K. Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
TUESDAY,THE 15TH DAY OF JULY2014/24TH ASHADHA, 1936
WP(C).No. 17882 of 2014 (I)
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PETITIONER(S):
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V.T.DAVIS,
S/O.THOMAS, VADAKKUMCHERRY HOUSE, THURUTHISSERY,
MEKKAD P.O., ERNAKULAM DISTRICT.
BY ADVS.SRI.A.JAYASANKAR
SRI.C.V.MANUVILSAN
SRI.MANU GOVIND
RESPONDENT(S):
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1. THE KERALA STATE CO-OPERATIVE TRIBUNAL,,
THIRUVANANTHAPURAM-695001.
2. THE DAIRY FARM INSTRUCTOR,
DAIRY DEVELOPMENT DEPARTMENT, ANGAMALY-683572.
3. KAPARASSERY KSHEEROLPADAKA SAHAKARANASANGHAM LTD.NO.E 127,
APCOS, NEDUMBASSERY P.O., VIA ATHANI
683 586, ERNAKULAM DISTRICT,
REPRESENTED BY ITS SECRETARY.
R1 & R2 BY GOVERNMENT PLEADER SRI. G.GOPAKUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
msv/
WP(C).No. 17882 of 2014 (I)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1: ATRUE COPY OF THE AWARD IN ARC.4/2008 DATED 30.07.2012.
EXT.P2: ATRUE COPY OF THE APPEAL MEMORANDUM.
EXT.P3: ATRUE COPY OF THE JUDGMENT IN APPEAL NO.104/2012
DATED 13/05/2014.
RESPONDENT(S)' EXHIBITS
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NIL
/TRUE COPY/
P.S TO JUDGE
msv/
K. SURENDRA MOHAN,J.
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W.P(C) NO.17882 OF 2014
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Dated this the 15th July, 2014.
JUDGMENT
The petitioner has filed this writ petition challenging Ext.P1 award of the Arbitrator in ARC 4/2008 as well as Ext.P3 judgment of the Kerala Co-operative Tribunal, Thiruvananthapuram in Appeal 104/2012 filed by him against the award. The petitioner was a Milk Tester of the third respondent, a society registered under the Kerala Co-operative Societies Act, 1969 and the Rules thereunder (hereinafter referred to as the 'Act' and the 'Rules' for short). He was in charge of the duties of the Secretary of the Society. Disciplinary proceedings were taken against him and he was dismissed from service. Thereafter, the third respondent filed ARC4/2008 for recovery of amounts due from the petitioner for alleged losses caused to the society. As per Ext.P1 award, WPC 17882/2014 2 the petitioner was found liable for an amount of Rs.2,61,854.87. Being aggrieved by Ext.P1 the petitioner preferred Ext.P2 appeal before the Tribunal. As per Ext.P3 judgment dated 13.5.2014, the Co-operative Tribunal allowed the petitioner's appeal in part reducing the amount to Rs.1,82,626.66. The petitioner has filed this writ petition challenging Exts.P1 and P3.
2. According to Adv.A.Jayasankar who appears for the petitioner, the reasoning of the Tribunal as well as the findings entered on three crucial contentions raised by the petitioner are wrong, unsustainable and liable to be set aside. The first objection of the counsel for the petitioner is regarding an amount of Rs.78,454.67 that is alleged to have been paid by the petitioner in excess to the milk producers. The contention of the petitioner is that, the amount should have been recovered from the persons who had actually received the excess amount. The second contention regarding the allegation against the petitioner is that, the sample milk WPC 17882/2014 3 collected by him had been sold and the amounts misappropriated by him. The petitioner's the explanation is that the sample milk was sent to the MILMA along with the milk collected from the producers. Therefore, the price of the sample milk has been received by the society. The third contention of the petitioner is that, he was not qualified to be the secretary of the society. He was only a milk tester who was put in charge of the duties of the Secretary. He is not at all well versed in book keeping and accountancy. Therefore, any short coming in the manner of maintaining the books of accounts should not be used against him. According to the counsel for the petitioner the above contentions have not been properly considered by the Tribunal and therefore Ext.P3 requires to be interfered with and set aside.
3. This writ petition is posted before me for admission. As per Ext.P1 award the petitioner has been found liable for an amount of Rs.78,454.67 being the amount paid in excess for purchasing milk during the period from 1995-96 to WPC 17882/2014 4 2002-03. The above amount has been computed on the basis of Ext.P24 documents marked by the Arbitrator. The Tribunal has also gone through the said documents which are the audit reports, relevant pages of the ledgers and cash books and has found that the said documents corroborate the case of the society. It has been noticed that, the petitioner has not adduced any evidence on his side, to affect the evidentiary value of the said documents. It has also been noticed that other than pleading the case that has been put forward by the petitioner he had not even cared to mount the witness box to swear to his case. The documents marked on the side of the society have been accepted by both the Arbitrator and the Tribunal. The contention now advanced before me is that, the excess amount paid for purchase of milk have actually been received by the members including the office bearers. Therefore, any such amount is to be recovered from the persons who have actually received such payment. The said contention cannot be sustained for the WPC 17882/2014 5 reason that there are absolutely no details available regarding the persons to whom such excess payments have been made. It may be true that the documents relating to such excess payments made are available in the office of the society. If they are so available, it was for the petitioner to have initiated steps at the appropriate time for the purpose of summoning such documents or for having them produced so as to substantiate the said case of his. The said question being essentially a question of fact cannot be gone into within the limited jurisdiction that is available to me under Art.226 of the Constitution. It is also necessary to bear in mind the fact that, the remedy of judicial review is not intended to undertake a re-appraisal of the entire evidence or to permit adducing of further evidence in support of the case of the person invoking the jurisdiction. In the absence of any evidence to substantiate the case pleaded by the petitioner, it cannot be said that the Tribunal has committed an error in not accepting the contention of the petitioner. Therefore I WPC 17882/2014 6 am not satisfied that any interference with Ext.P3 is called for on the above ground.
4. The second contention of the petitioner, specifically taken in his appeal memorandum as Ground (F) is that the sample milk collected by him as secretary-in-charge had been sent to the MILMA for which, he had collected the price. The said fact is also one with respect to which, there is no evidence available. The petitioner does not have a case that, he was not given sufficient opportunity to adduce evidence. In the absence of any evidence, it cannot be said that Ext.P3 suffers from any infirmity for having disallowed his claim. The only other contention of the petitioner is that, he was not qualified to be posted as the secretary. He was only a milk tester who was put in charge. Therefore, any discrepancy in the maintenance of accounts should be pardoned as the mistake committed by a person who was not properly qualified. As already noticed above, the petitioner has not cared to mount the witness box to swear his case. Though WPC 17882/2014 7 serious allegations of misappropriation were levelled against him, he has stayed away from the witness box. He has no case that, the discrepancies pointed out had occurred due to his lack of knowledge in keeping the books of accounts. If they were true, they could have been proved by causing the production of documents to show that the discrepancies were only in maintaining the books of accounts. In the present case, the petitioner has not adduced any evidence on his side. Therefore, Exts.P1 and P3 have been passed after considering the evidence adduced by the third respondent alone. That was the only course open to the authorities.
For the above reasons I do not find any grounds to entertain this writ petition or to grant any of the reliefs sought for. The same is therefore dismissed.
Sd/-
K. SURENDRA MOHAN
Judge
jj /True copy/
WPC 17882/2014 8