Madras High Court
A.Boopal vs The Presiding Officer/ on 24 July, 2014
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.07.2014
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
W.P.No.23533 of 2009
A.Boopal .. Petitioner
-vs-
1. The Presiding Officer/
Cooperative Tribunal
Principal District Court
Villupuram
2. The Deputy Registrar of
Cooperative Societies
Tindivanam Circle
Tindivanam
Villupuram District
3. The Special Officer
CL.SPL.154 Brammadesam Primary
Agricultural Cooperative Bank
Brammadesam and Post
Tindivanam Taluk
Villupuram District .. Respondents
Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the entire records relating to the impugned order passed by the second respondent in his proceedings Na.Ka.3330/2005/Ku.Na dated 21.07.2008 confirmed by the District Court, Villupuram in C.M.A.No.19/2008 dated 18.09.2009 and quash the same.
For Petitioner :: Mr.C.Prakasam
For Respondents :: R1-Tribunal
Mr.L.P.Shanmugasundaram
Special Government Pleader
for R2
Mr.R.Neelakandan for Ms.N.Santhi for R3
ORDER
Mr.A.Boopal, aggrieved by the surcharge order passed by the Deputy Registrar of Cooperative Societies, Tindivanam circle in his proceedings Na.Ka.3330/2005/Ku.Na., dated 21.7.2008, as confirmed by the District Court, Villupuram in C.M.A.No.19/2008 dated 18.09.2009, has come to this Court with the present writ petition seeking to quash the same.
2. Learned counsel for the petitioner, assailing the impugned order, firstly submitted that the first respondent-Tribunal failed to consider that the impugned order of surcharge under Section 87 of the Tamil Nadu Cooperative Societies Act, 1983 (for short, ''the Act'') passed on the basis of the enquiry report under Section 81 of the Act cannot be sustained, since the enquiry report was not served upon the petitioner. Secondly, he has stated that since the said report was also not submitted within the stipulated time as per Section 81(4) of the Act read with Rule 104(9) of the Rules and Section 173 of the Act, further alleged that the Tribunal miserably failed to consider that the second respondent has not followed the above said rules before passing the impugned order. Thirdly, it was contended that the petitioner was not having any power either to sanction or to disburse any loans and most of the loans were sanctioned seven years prior to the initiation of the proceedings under Section 87 of the Act. Fourthly, challenging the allegations 1,2,3,4,6,8,9,10,11,12,14 & 15 that he had issued loans to bogus members, again the learned counsel stated that the petitioner was not at all having any power either to sanction or to disburse such loans.
3. On the other hand, the counter affidavit filed by the third respondent-Bank clearly shows that the petitioner, after receiving the enquiry report, filed W.P.No.25859 of 2005 and obtained an interim injunction restraining the respondents from proceeding further on the basis of the enquiry officer's report. Along with the petitioner's writ petition, which was dismissed on 7.12.2007, 14 other writ petitions were also filed and all of them were dismissed by order dated 14.2.2008. Only thereafter, the second respondent issued the surcharge notice under Section 87(1) of the Act. Secondly, the petitioner would not have submitted his explanation on 30.3.2008 had he not been served with the copy of the enquiry report. Learned counsel for the third respondent also submitted that the xerox copy of the enquiry report was sent to the petitioner in Rc.No.3330/2005/Ku.Na.(7) dated 19.3.2008 and thereafter he was also given an opportunity for perusal of the records. Once again he was given personal hearing and his deposition was also recorded on 30.4.2008 by the second respondent. The chain of events clearly shows that the second respondent had initiated surcharge action under Section 87(1) to recover the deficiency caused by the petitioner along with other persons in the asset of the bank and subsequently issued a show cause notice dated 15.2.2008 to the petitioner to explain as to why the surcharge order should not be passed against him for the irregularities committed by him.
4. Heard the learned counsel on both sides.
5. The petitioner joined the third respondent-Bank as Clerk in the year 1993. Subsequently, in the year 1999, he was promoted as Senior Clerk and then in the year 2001, he was further promoted as Assistant Secretary. When the petitioner was promoted as Assistant Secretary in 2001, only after seven years, the surcharge order under Section 87(1) was passed. When he filed W.P.No.25859 of 2005, the same was dismissed on 7.12.2007. The counter affidavit filed by the third respondent shows that the copy of the enquiry report was sent to the petitioner on 19.3.2008. Thereafter, it appears that he submitted his explanation on 30.3.2008. Therefore, when the second respondent initiated surcharge action under Section 87(1) to recover the deficiency caused by the petitioner and other persons, he was issued with the surcharge notice on 15.2.2008 to explain as to why a surcharge order should not be passed against him for the irregularities committed by him along with other delinquent officers. After receiving the surcharge order on 8.8.2008, he preferred a statutory appeal under Section 152 of the Act before the Cooperative Tribunal in C.M.A.No.19 of 2008, but he has not stated that the enquiry report was not furnished to him. That shows that the petitioner had already received the enquiry report. Therefore, that contention is not available in the present writ petition. Admittedly, when the petitioner became the Assistant Secretary in the year 2001, he shall generally assist the Secretary in discharging his duties. That apart, in the absence of the Secretary, the Assistant Secretary shall discharge the duties of the Secretary. Therefore, the contention that he was not liable to pay the amount held by the Tribunal is wholly untenable.
6. Since several irregularities are alleged to have taken place during his tenure touching on the misappropriation of funds under the various items of fraud, he was suspended from service on 9.3.2005 for the above irregularities and misappropriation. Thereafter, charges were framed against him on 22.8.2005. Further, a domestic enquiry was ordered and finally he was terminated from service on 16.10.2008 on the proved charges. Even the criminal case filed against the petitioner in F.I.R.No.3 of 2005 dated 22.4.2005 by the Commercial Crime Investigation Wing of Police, Villupuram is also pending for trial. In view of the above, when the petitioner has not mentioned anything about the order of termination suffered by him, he is liable for guilty of suppression of material facts, on this score also, this Court is not inclined to interfere with the impugned orders, as the writ petition is completely devoid of any merits. Accordingly, the writ petition is dismissed. Consequently, interim order stands vacated and the M.P.No.2 of 2009 is also dismissed. No costs.
Index : yes 24.07.2014
Issue copy on 23.9.2014
ss
To
1. The Presiding Officer
Cooperative Tribunal
Principal District Court
Villupuram
2. The Deputy Registrar of
Cooperative Societies
Tindivanam Circle
Tindivanam
Villupuram District
3. The Special Officer
CL.SPL.154 Brammadesam Primary
Agricultural Cooperative Bank
Brammadesam and Post
Tindivanam Taluk
Villupuram District
T.RAJA, J.
ss
Order in
W.P.No.23533 of 2009
24.07.2014