Madras High Court
Manokaran vs The Joint Registrar Of on 31 July, 2023
Author: C.Saravanan
Bench: C.Saravanan
C.R.P.(MD) No.943 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 28.06.2023
PRONOUNCED ON : 31.07.2023
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.943 of 2023
and C.M.P.No.4348 of 2023
Manokaran ... Petitioner
vs.
1.The Joint Registrar of
Co-operative Societies,
Cheranmahadevi,
Tirunelveli
2. 0,1942, Sivanthipuram Primary Agriculture,
Credit Society, Through its Secretary,
Sivanthipuram, Ambasamudram Taluk,
Tirunelveli.
3. I.Santhi
4.I.Anitha
5.I.Priya
6.S.Alagesan
7.A.Thirumalai
8.T.Selvan ... Respondents
Prayer : Civil Revision Petition is filed under Article 227 of Constitution
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https://www.mhc.tn.gov.in/judis
Page No. 1 of 15
C.R.P.(MD) No.943 of 2023
of India, to set aside the fair and decretal order dated 14.07.2022 passed in
C.M.A.C.S.No.34 of 2020 on the file of Principal District Judge,
Tirunelveli confirming the order in Thava No.1 of 2016-17 on the file of
Joint Registrar of Co-operative Societies, Cheranmahadevi dated
27.12.2017.
For Petitioner : Mr.K.Gokul
For Respondents 1 & 2 : Mr.S.Kameswaran
Govt. Advocate
ORDER
The petitioner is aggrieved by the impugned order dated 14.07.2022 passed by the Principal District Judge, Tirunelveli in C.M.A.C.S.No.34 of 2020.
2. By the impugned order dated 14.07.2022, the appeal filed by the petitioner against the surcharge order dated 27.12.2017 passed by the first respondent Deputy Registrar of Co-operative Societies, Cheranmahadevi under Section 87 of the Tamil Nadu Co-operative Societies Act, in Thava No.1-2016-17, has been dismissed.
_____________ https://www.mhc.tn.gov.in/judis Page No. 2 of 15 C.R.P.(MD) No.943 of 2023
3. Relevant portion of the impugned order reads as under:-
8. After taking into consideration of both sides learned counsels arguments and on perusal of case records, it is found that, it is admitted fact that during the time of said occurrence, the appellant was working as a Joint Secretary in 2nd respondent society. The appellant/defendant contention is that the said mistake was committed by the deceased Iyappan who is the Secretary of the society, the society facing the loss. Therefore, the respondent is liable for cause the loss to the society. The contention of the learned counsel for the appellant is not acceptable one. He was working as a Joint Secretary of the society.
Further, on perusal of case records it found that the duty of the Joint Secretary is, even the Secretary was misappropriated the amount and given the loan to his close relatives, he was scrutinize the applications in proper manner and he was giving information to the higher authorities about the mis conduct of the said Iyappan in time the said loss was avoided. But in the present case, the appellant/defendant has not tenure his lawful duty and he was also accepted the said Iyappan's illegal activities.
9.Further, on perusal of the appellant/defendant contention is that the society has not given any duties and responsibilities. Therefore, he was not liable to cause the loss of the society. This contention is also not acceptable. This court considered view is that, he was working as a Joint Secretary in the society as by-law. Even the duties and responsibilities was not allotted to the appellant/defendant by the society, his duties in good faith, he was scrutinized all the loan papers given by the beneficiaries and also he was proper in manner and also the loan was distributed to the beneficiaries by the Secretary in proper manner. The appellant/defendant has not scrutinized the loan applications in proper manner and not _____________ https://www.mhc.tn.gov.in/judis Page No. 3 of 15 C.R.P.(MD) No.943 of 2023 properly maintained the registers and ledgers regarding these aspects. Hence all the members of the society facing the loss up to Rs.49 lakhs. Thereby this court come to the conclusion that the learned counsel for the appellant contention is not sustainable one that there is no duties and responsibilities allotted to the appellant/defendant he was not liable to cause of the loss to the society.
10. Further, this court has gone through the case records it shows that the appellant/defendant is also Joint Secretary of society and also he was permanent employee in the society. In this aspect this court considered view is that he has scrutinize all kinds of ledgers and papers in proper manner and also if any illegal acts committed by anyone of the person, he informed to the matter to his higher officials then and there. But, in he present case, he has argued that in the grounds of appeal memorandum that he was working under the control of the Secretary and he was not able to informed higher officials. In this regard, this court come to the conclusion that his act was not bonafide manner and it was escaped from the liability. Further on perusal of the 81 Report the enquiry officer has detailly discussed in his 81 Report and recommended to initiate the Surcharge Proceedings. In these circumstances, there is no mistake was committed the enquiry officer and fixing the responsibilities against the present appellant/defendant is legally sustainable one. In the circumstances there is no necessity to interfere the Surcharge Proceedings issued by the 1"
respondent. Therefore, there is no merits in this appeal.
11. Further, this court has through the case records, it shows that due to said kind of irregularities and responsibilities of the office bearers and members of the society, the society facing the huge financial loss. Due to huge finance loss to form the object of the society to serve the _____________ https://www.mhc.tn.gov.in/judis Page No. 4 of 15 C.R.P.(MD) No.943 of 2023 public people not fulfilled. The object of the society to upliftment of the down dartan people. The appellant having knowledge, that the deceased Iyyappan has given the loan not fit person and also he has fabricated the documents and getting the loan to the focus members of the society, the appellant has not informed to his higher authorities. The attitude of the appellant it clearly shows that he was colluded with the President for illegal gain. That the above all aspects are considered by this court and come to the conclusion that there is no merits in this appeal and hence this appeal is to be dismissed.
4. The Petitioner is the 2nd defendant in the Surcharge order dated 27.12.2017 passed by the Deputy Registrar of Co-operative Societies, Cheranmahadevi, the first respondent herein. The petitioner herein was the Appellant before the Principal District Judge, Tirunelveli in C.M.A.C.S.No.34 of 2020 whose appeal was dismissed by the Principal District Judge, Tirunelveli vide the impugned order dated 14.07.2022.
5. The Petitioner was working as an Assistant Secretary in the 2nd respondent Society herein during the period from 01.04.2013 to 24.06.2016. A Surcharge order dated 27.12.2017 was passed by the 1st respondent Deputy Registrar of Co-operative Societies, Cheranmahadevi under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 in _____________ https://www.mhc.tn.gov.in/judis Page No. 5 of 15 C.R.P.(MD) No.943 of 2023 Thava No.1-2016-17 against the legal heirs of the deceased Secretary Iyappan, the petitioner herein and one another person holding them liable to pay for the loss sustained by the 2nd respondent Society for a sum of Rs.49,75,682/- for mis-deeds and corrupt practices by the deceased Secretary Iyappan, the petitioner herein and one another person.
6. Against the Surcharge order dated 27.12.2017, the petitioner filed appeal before the Principal District Judge, Tirunelveli in C.M.A.C.S.No. 34 of 2020 which has been dismissed by an order dated 14.07.2022 as mentioned above. Relevant portion of the impugned order dated 14.07.2022 has been already extracted in the beginning of the order.
7. The specific case of the petitioner is that the petitioner is not responsible for the alleged loss sustained by the second respondent Society. It is submitted that during the cross-examination of the “Enquiry Officer” who had given the Enquiry report, the “Enquiry Officer” has not found the petitioner guilty for the loss caused to the society by the deceased Secretary Iyappan and only the Secretary Iyappan who was the main culprit had caused loss to the second respondent Society. _____________ https://www.mhc.tn.gov.in/judis Page No. 6 of 15 C.R.P.(MD) No.943 of 2023
8. It is therefore submitted that the petitioner cannot be held guilty under Section 87 of Tamil Nadu Co-operative Societies Act 1983 for the loss suffered by the second respondent Society on account of the acts of the deceased Secretary Iyappan who later committed suicide.
9. It is submitted that both the first respondent as well as the Court below failed to take note of the Statement of the P.W.1 Enquiry Officer, wherein, the Enquiry Officer has practically exonerated the petitioner and stating that the petitioner had no role in the alleged fraud committed by the deceased Secretary Iyappan although has still found the petitoner guilty under Section 87 of Tamil Nadu Co-operative Societies Act 1983. It is further submitted that though the family members of the deceased Iyappan were summoned, they have neither replied nor participated in the enquiry proceedings.
10. Per contra, the learned Government Advocate for the first and second respondents submits that the impugned order is well reasoned and requires no interference. It is submitted that the petitioner as an Assistant Secretary is a permanent employee of the second respondent society and it is incumbent on the part of the petitioner to inform the Management as _____________ https://www.mhc.tn.gov.in/judis Page No. 7 of 15 C.R.P.(MD) No.943 of 2023 well as the Registrar regarding the fraud being committed by the Secretary late Iyappan.
11. That apart, it is submitted that the Secretary Iyappan has committed suicide and FIR is pending against the petitioner and other co- delinquents in Crime No.4/2017 which was filed on 03.11.2017and charge sheet has also been filed on 01.10.2017 before the Judicial Magistrate No.
2. It is therefore submitted that there is no scope to interfere with the Impugned Order and therefore prayed for dismissal of the present Civil Revision Petition.
12. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Government Advocate for the first and second respondents.
13. I have perused the records, during cross-examination of the P.W.1, the Enquiry Officer, has stated as under:-
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_____________ https://www.mhc.tn.gov.in/judis Page No. 8 of 15 C.R.P.(MD) No.943 of 2023 Nfs;tp 2.
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_____________ https://www.mhc.tn.gov.in/judis Page No. 9 of 15 C.R.P.(MD) No.943 of 2023 Nfs;tp 8.
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14. A reading of the above statement recorded at the time of cross-examination of the “Enquiry Officer” indicates that the “Enquiry Officer” has practically exonerated the petitioner of any misdeeds in connection with the loans given by the deceased Secretary Iyappan who later committed suicide.
15. However, it should be remembered that, ordinarily a Secretary of a society is the Chief Administrative Officer of the Society. In absence of the Secretary, the Assistant Secretary Steps in and functions in his capacity. However, even if the secretary is present, the Assistant Secretary is normally a co-signatory and acts in tandem and along with the Secretary . As per section 2(19) of The Tamil Nadu Co-Operative Societies Act, 1983 Assistant Secretary is also an Officer of the Co- Operative Society. It reads as under :-
2(19) "officer" includes a president, vice- president, managing director, secretary, assistant secretary, member of board and any other person _____________ https://www.mhc.tn.gov.in/judis Page No. 10 of 15 C.R.P.(MD) No.943 of 2023 empowered under the rules or the by-laws to give directions in regard to the business of the registered society.
16. That apart, the records seems to indicate that the petitioner has also signed most of the documents such as cash Book, Day Book, Loan Ledger and registers, etc. along with the deceased Secretary.
17. As a responsible officer of the Society, it was therefore incumbent on the part of the petitioner to have taken part in the affairs of the Society. The petitioner would have certainly come to know that the Secretary was acting contrary to the interest of the Society.
18. Merely because the petitioner was Subordinate and junior to the Secretary and was an Assistant Secretary ipso facto would not mean, that the petitioner was not privy about the loss that was caused to the Society. The failure to report of the fraud committed by the deceased Secretary would not have gone un-noticed by the petitioner as the petitioner was the Assistant Secretary.
_____________ https://www.mhc.tn.gov.in/judis Page No. 11 of 15 C.R.P.(MD) No.943 of 2023
19. The petitioner could not have turned blind to the shenanigans of the deceased Secretary. The petitioner also could not have turned nelson's eye to the mis-deed and indiscretion and corruption of the deceased Secretary.
20. The bye-laws of the society have not been filed so as to discern the exact roles of the Secretary and Assistant Secretary of the 2nd respondent Society. It is also not clear on what date the Secretary was present and on what date, the transactions were made in absence of the Secretary and in the presence of the petitioner. Merely because the petitioner was the Assistant Secretary of the Society ipso facto would not mean that petitioner was unaware of the shenanigans of the deceased Secretary.
21. The impugned order has not referred to the Bye-laws of the Society though the surcharge order makes an oblique reference to the Society Bye-law Nos.38(1) and 38(5). It is stated in the surcharge order that according to Bye-law No.38(1), the Secretary Mr.Iyappan as the Chief Administrative Officer of the Society was responsible for taking legal actions against borrowers who defaulted Jewel Loans in due time _____________ https://www.mhc.tn.gov.in/judis Page No. 12 of 15 C.R.P.(MD) No.943 of 2023 and that according to Bye-law No.38(5) the Secretary was bound to maintain the accounts and books of the Society properly.
22. In absence of the copy of the Bye-laws of the Society , the Court has no other option except to remit the case back to the Principal District Court, Tirunelveli after setting aside the impugned order. The Principal District Court, Tirunelveli shall re-examine the issue aforesaid de-novo after summoning and examining the Bye-Laws of the Society and the Rules of Business for the employees and officers of the Society and pass a de-novo order in accordance with law within a period of eight weeks from the date of receipt of a copy of this order.
23. Thus, the impugned order is set aside. The Civil Revision Petition is disposed by way of remand to the Principal District Judge, Tirunelveli with the above observations and directions. No costs. Consequently, connected miscellaneous petition is closed.
31.07.2023
Index : Yes/No
Neutral Citation : Yes/No
Jen/rgm
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https://www.mhc.tn.gov.in/judis
Page No. 13 of 15
C.R.P.(MD) No.943 of 2023
To
1.The Joint Registrar of
Co-operative Societies,
Cheranmahadevi,
Tirunelveli
2. The Secretary,
0.1942, Sivanthipuram Primary Agriculture, Credit Society, Sivanthipuram, Ambasamudram Taluk, Tirunelveli.
_____________ https://www.mhc.tn.gov.in/judis Page No. 14 of 15 C.R.P.(MD) No.943 of 2023 C.SARAVANAN, J.
jen/rgm Pre-delivery Order in C.R.P.(MD) No.943 of 2023 31.07.2023 _____________ https://www.mhc.tn.gov.in/judis Page No. 15 of 15