Madras High Court
D.K.Gunasekaran vs The Principal District Court Cum on 5 January, 2011
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/01/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P(MD)No.656 of 2008 and M.P(MD)No.1 of 2008 D.K.Gunasekaran ... Petitioner Vs. 1.The Principal District Court cum Co-operative Tribunal, Trichy. 2.The Commissioner/Registrar of Co-operative Societies, Sericulture, Salem. 3.The Assistant Director of Sericulture, Trichy. 4.The Assistant Director of Sericulture, Erode. 5.The Special Officer, Uraiyur Women Silk Reeling and Twisting Co-operative Society, Thevangar Weavers' Colony, Uraiyur, Trichy - 620 003. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari calling for the impugned order of the third respondent in his proceedings S.M.No:1241/E/97 dated 03.02.2005 and the consequential order of the first respondent in C.M.A.(CS).20/2005 dated 08.08.2007 and quash the same insofar as it rejects the claim of the petitioner for excess waste, price fluctuations and accounting difference totalling Rs.26,752/-. !For Petitioner ... Mr.R.Rengaramanujam ^For Respondents ... Mr.K.Balasubramanian, Addl.Govt.Pleader for R2 to R5 * * * * * :ORDER
The petitioner has filed this writ petition seeking a Writ of Certiorari calling for the impugned order of the third respondent in his proceedings S.M.No:1241/E/97 dated 03.02.2005 and the consequential order of the first respondent in C.M.A.(CS).20/2005 dated 08.08.2007 and to quash the same insofar as it rejects the claim of the petitioner for excess waste, price fluctuations and accounting difference totalling Rs.26,752/- (Rupees Twenty Six Thousand Seven Hundred and Fifty Two only).
2. The petitioner has joined as Assistant Supervisor of Industrial Co- operatives in the year 1984 and continued to hold the post as Junior Inspector from 01.03.2002 to till date. He has been directed to work as Secretary in the fifth respondent's society in the year 1992 and worked from 1992 to 1998 and later, he has been transferred to Co-operative Department on transfer and now, he is working as Junior Inspector of Co-operative Societies.
3. The case of the petitioner is that all of a sudden, surcharge proceedings have been initiated against him by the Director of Sericulture by his proceedings dated 29.08.2002 alleging excess waste of Rs.12,041.75 for the year 1995-96 (for the period from 01.04.1995 to 31.03.1996). Subsequently, another surcharge proceedings have been issued by the Director of Sericulture against the petitioner alleging excess waste of Rs.22,576.75 for the very same year 1995-96 by his proceedings dated 31.12.2004. The contention of the petitioner is that as per Section 87 of the Tamil Nadu Co-operative Societies Act, 1983, surcharge proceedings could be initiated only against the petitioner on the basis of misappropriation, fraudulent retention of money or property or guilty of breach of trust or any deficiency in the assets of society by breach of trust or willful negligence or unauthorised payment, but the petitioner has not committed any such lapses and therefore, the provisions of Section 87 of the Act, will not apply and also that, no surcharge proceedings could be initiated against the petitioner after the lapse of 7 years from the date of any such omission or commission.
4. The learned Counsel for the petitioner urges before this Court that when the Society makes purchase of raw materials from the federation and when the raw materials are returned back due to the defects at a later point of time to the federation, the price difference cannot be shifted upon the petitioner and there will be price fluctuation naturally, which is applicable to all Societies. Therefore, the demand of price difference of Rs.3,108/- (Rupees Three Thousand One Hundred and Eight only) is not at all correct and is not liable for recovery.
5. Moreover, the petitioner has remitted the accounting difference amount of Rs.1,067.30 to the Society and it can very well be verified from the accounts of the fifth respondent/Society which the respondents have failed to look into. Advancing his arguments, it is the contention of the learned Counsel for the petitioner that the Annual General Body Meeting of the fifth respondent/Society held on 02.04.1996, has resolved to write off the alleged excess waste of 0.32% of silk waste valued at Rs.22,576/- (Rupees Twenty Two Thousand Five Hundred and Seventy Six only) considering the moisture loss, pilferage and a handling loss, new variety of production (Warp) and as such, the issue of demand and recovery of Rs.22,576/-(Rupees Twenty Two Thousand Five Hundred and Seventy Six only) from the petitioner does not arise and the Annual Audit report has also accepted the same and that apart, no audit objection has been raised in the Audit report. Consequently, the question of seeking ratification from the Registrar of the Co-operative Societies, Salem, has not arisen at all.
6. Expatiating his arguments, it is the submission of the learned Counsel for the petitioner that the respondents have failed to consider the circular No.79/88 issued by the Registrar of the Co-operative Societies dated 25.10.1988 and the circular of the Director of Sericulture No.25458/IC-I/92 dated 01.07.1992 and indeed, the price fluctuation of raw silk in the market is not within the control and reach of the petitioner as it is conditioned by reasons of supply and demand and even otherwise, the purchase and sale of silk is only with the federation and not in the open market. As such, the demand of Rs.3,108/- (Rupees Three Thousand One Hundred and Eight only) is not liable for the recovery. Continuing further, the learned Counsel for the petitioner submits that the respondents have allowed the excess waste of 1.55% valued at Rs.30,041.55 for the yeaer 1993-94 on the basis of the resolutions of the General Body Meeting, but in respect of the year 1995-96, the same analogy has not been followed and therefore, the proceedings of the respondents are liable to be set side.
7. The learned Counsel for the petitioner submits that the respondents have failed to take note of the fact that the petitioner has tallied and reconciled the account and handed over the charges and that being the state of affairs, the demand of Rs.1,037/- (Rupees One Thousand and Thirty Seven only) towards the accounting difference is not at all correct and liable to be set aside.
8. According to the learned Additional Government Pleader for the respondents 2 to 5, it is brought to the notice of the Director of Sericulture, the Registrar, that certain deficiency has been caused to the assets of the Society and therefore, an inspection as per Section 82 of the Tamil Nadu Co- operative Societies Act, 1983, has been ordered by the Director to bring out and report the deficiency and the Inspection Officer submitted his report dated 10.07.2001 which fixed the responsibility on the petitioner, the Assistant Supervisor of Industrial Co-operatives working in the Society. Therefore, based on the said report, the Surcharge Officer/the Regional Deputy Director of Sericulture, Trichy, has passed the order of surcharge as per Section 87(1) of the Tamil Nadu Co-operative Societies Act, 1983, as per his order dated 17.06.2002.
9. Added further, it is the contention of the learned Additional Government Pleader for the respondents 2 to 5 that C.M.A.(CS)No.331 of 2002 has been preferred before the first respondent/Principal District Court, Trichy and the surcharge order dated 17.06.2002 has been set aside by the Tribunal and the matter was remanded for fresh consideration by the respondents. The Assistant Director of Sericulture, Erode, has been appointed as Surcharge Officer on 21.04.2004. The Surcharge Officer again conducted the surcharge proceedings and passed the final order on 31.12.2004. Once again, the petitioner approached the first respondent/Tribunal in C.M.A.(CS)No.20 of 2005 and the first respondent/Tribunal passed the final order on 08.08.2007 in C.M.A.(CS)No.20 of 2005 allowing the appeal and modifying the surcharge order dated 31.12.2004 and fixing the liability to pay a sum of Rs.26,752.05 instead of Rs.56,793.60. Only as against the judgment passed in C.M.A.(CS)No.20 of 2005 dated 08.08.2007, the petitioner has projected the present writ petition.
10. The learned Additional Government Pleader for the respondents 2 to 5 contends that Section 87 of the Tamil Nadu Co-operative Societies Act, 1983, will apply to the facts of the present case because he has caused the damages and financial loss to the Society on account of his willful negligence.
11. The contention of the learned Additional Government Pleader for the respondents 2 to 5 is that the surcharge proceedings have been initiated as early as on 10.07.2001 and earlier surcharge order was quashed on 17.06.2002 pertaining to the period 1995-96 and as such, the surcharge proceedings have been initiated within the period of 7 years. Also, in the instant case on hand, action has been initiated within 5 years period and the same is not after expiry of 7 years. As a matter of fact, the fifth respondent assessed the deficiency caused by the petitioner by allowing the silk deduction, stock deficit and difference in silk deposit to an extent of Rs.3,67,946.35.
12. Apart from the above, it is the contention of the learned Additional Government Pleader for the respondents 2 to 5 that write off is to be done only by the Registrar by means of passing of a final order and the surcharge order has been passed in regard to the deficiency caused by the petitioner in respect of the assets of the Society and therefore, he is liable to pay the assessed value by way of recovery. Hence, the writ petition is liable to be dismissed.
13. This Court has heard the learned Counsel for the petitioner and the learned Additional Government Pleader for the respondents 2 to 5 and noticed their contentions.
14. In support of the contention that mere negligence or callousness on the part of the petitioner is not sufficient to attract a surcharge order, the learned Counsel for the petitioner relies on the decision of this Court in B.S.Somasundaram v. The Thanjavur District Co-operative Supply Market Society Ltd., represented by the Liquidator, Tiruvarur and others reported in 1983 MLJ 523, wherein it is held as hereunder:
"When the expression used is "commenced" in the first proviso to section 71 of the Tamil Nadu Co-operative Societies Act, 1961, it could be only with reference to the date on which the claim had been lodged, as provided under section 71 of the Act. On such claims filed, they are registered, and thereafter further action is taken by the statutory authority, who exercises powers by virtue of section 71. Therefore, the relevant date for the first proviso to section 71, would be the date on which a surcharge claim is lodged as provided under the Act.
Whenever a claim is lodged under section 71, it is not mere negligence or callousness which would bring about a surcharge order, unless it be established that the acts committed were pursuant to any negligence wilfully or deliberately committed by the concerned person.
Functioning as an appellate authority, the Tribunal is duty bound to refer to the factual aspects and render its finding on each one of the points taken in the appeal. The order in the present case contains sentences which are ready- made in nature, which could fit it with any other matter which may come before the Tribunal. Therefore, the conclusion arrived at as if the petitioner had committed gross negligence, is without any reference to the pleas raised by him."
15. He also cites the decision of this Court in Gabriel v. The Deputy Registrar (Housing), Cuddalore and another reported in (2003) 2 M.L.J.624, wherein it is observed that 'In cases where there is no misappropriation but only misapplication surcharge proceedings against the officer is not justifiable. Only disciplinary action can be taken if procedure is not followed.'
16. Yet another decision of this Court is relied on the side of the petitioner in S.Marimuthu and another v. Deputy Registrar of Co-operative Societies (Housing), Madurai Circle and another reported in (2006) 4 M.L.J.86, at page 87, wherein it is laid down as follows:
"For initiating surcharge proceedings under Section 87 of the Co-operative Societies Act, 1987, against an employee of a Co-operative Society, the condition precedent is that there must be willful negligence or deliberate misconduct on the part of the employee concerned."
17. The learned Counsel for the petitioner invites the attention of this Court to the decision of this Court in A.Janakiraman and another v. Deputy Registrar of Co-operative Societies, Kumbakonam and another reported in (2009) 6 MLJ 1051, wherein it is observed as follows:
"For ordering recovery under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983, the first respondent must establish that there is willful dereliction of duty on the part of the petitioners. Mere carelessness or dereliction of duty is not sufficient to initiate surcharge proceedings as per Section 87(1) of the Tamil Nadu Co-operative Societies Act, 1983."
18. He further seeks in aid the decision of this Court in K.Ajay Kumar Gosh and others v. Tribunal for Co-operative Cases, (District Judge of Kanyakumari District), Nagercoil and another reported in (2009) 4 MLJ 992, wherein it is laid down as follows:
"To pass surcharge order under Section 87 of the Tamil Nadu Co-operative Societies Act, the employees of the Co-operative Society should have done an actionable wrong either by commission or omission in a deliberate and reprehensible manner with reckless callousness and with a supine indifference without taking due care and caution ordinarily expected from a reasonable and prudent man under the existing circumstances. In the absence of such categorical finding, it is not possible to mulct the employees with the loss caused to the society."
19. In the circular No.79/88, dated 25.10.1988, issued by the Registrar of Co-operative Societies, Madras, in regard to the disposal of surcharge cases under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983, it is among other things mentioned as follows:
"Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 which corresponds to Section 71 of the erstwhile Tamil Nadu Co-operative Societies Act, 1961 deals with surcharge. The three important aspects of Section 87 are:-
a)The pre-requisites for initiating surcharge action under that section.
b)The persons against whom such surcharge orders under Section 87 can be passed.
c)The circumstances under which action under Section 87 can be instituted.
2.The above three aspects are discussed below:
A.PRE-REQUISITES:
There should be:
i)an audit under Section 80 or
ii)an inquiry under Section 81 and
iii)an inspection or investigation under Section 82 or
iv)an inspection of books by financing bank under Section 83 or
v)the winding up of a society.
The pre-requisite for initiating surcharge actions under Section 87 is complied with, if there was an audit or inquiry inspections etc., at some time previous to the action taken under that section, though not immediately before proceeding such action and the results of the audit or inquiry or inspection as the case may be, was constituted as required in the relevant sections. Matters appearing in interim report of audit or inquiry or inspection are not excluded from the provisions of this section in view of the expression "where is the source of"
used at the beginning of sub section(1).
B.THE PERSONS AGAINST WHOM THE SURCHARGE ORDER PASSED:
i)Any persons who is or was entrusted with the organisation or management of the society.
ii)Any past or present officer of the society
iii)Any past or present servant of the society.
C.THE CIRCUMSTANCES UNDER WHICH ACTION UNDER SECTION 87 CAN BE INSTITUTED:
i)MISAPPROPRIATION OF MONEY OR PROPERTY:
The offence of criminal misappropriation consists in dishonest misappropriation by a person or conversion to his own use of any movable property.
ii)FRADULENT RETENTION OF MONEY OR OTHER PROPERTY:
According to Section 25 of the I.P.C a person is said to do a thing fraudulently, if he does the thing with intent to defraud implies that the money or property though still intact has been dishonestly kept back the person or officer or servant.
iii)GUILTY BREACH OF TRUST IN RELATION TO THE SOCIETY:
According to Section 405 of I.P.C "whoever, being in any manner entrusted with property, or with dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violence of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
For invoking Section 87 breach of trust need not necessarily be criminal breach of trust. Every act of omission or commission amounting to a breach of duty in the case of an officer(as defined in Section 2(19) of the Tamil Nadu Co- operative Societies Act, 1983) of a co-operative society in a fiduciary relationship to the society will amount to breach of trust.
iv)CAUSING ANY DEFICIENCY IN THE ASSETS OF THE SOCIETY BY BREACH OF TRUST OR WILFUL NEGLIGENCE:
The General loss sustained in the normal course of business of the society or the loss suffered on account of sale goods in good faith by reduction in price to avoid further loss may not come under the purview of Section 87. The fact that an institution has incurred business loss by itself cannot form the basis for initiating action under Section 87 of the Act. Only the deficiency to the assets of the society caused by breach of trust or wilful negligence by the members of the board, officers or servant of the society will come under the purview of the Section 87."
20. In the proceedings of the second respondent dated 08.08.1996, addressed to the Assistant Director, Sericulture, Trichy, it is mentioned that in respect of the year 1993-94, the deduction of 6.25% has been approved by the General Body for which the resolution copy and the silk thread production and business details concerned are required to be furnished.
21. Further, in the proceedings of the second respondent dated 26.09.1997 addressed to the Assistant Director, Sericulture, Trichy, it is mentioned that in respect of the fifth respondent/Society in respect of the year 1993-94, final audit defects, on verification of the said defects, the part defect No.4 has been dismissed, etc. The surcharge proceedings dated 29.08.2002 issued by the Surcharge Officer/Regional Deputy Director, Sericulture, Trichy, shows that the petitioner has caused the loss of Rs.12,041.75 to the fifth respondent/Society and this has to be compensated by him.
22. On 21.04.2004, the Sericulture Director and the Registrar of Co-
operative Societies, by his surcharge proceedings, has directed the petitioner to compensate a sum of Rs.56,793.60 to the Society for causing the loss to it. As against the order passed by the Sericulture Director and the Registrar of Co- operative Societies, on 21.04.2004, the petitioner has filed C.M.A.(CS)No.20 of 2005 and the first respondent/Tribunal has passed the judgment on 08.08.2007 directing the petitioner/appellant to pay a sum of Rs.26,752.05 and modified the surcharge order passed by the second respondent dated 31.12.2004 accordingly and allowed the appeal in part.
23. At this juncture, it is not out of place for this Court to make a significant mention that the first respondent/Tribunal in its judgment in C.M.A.(CS)No.20 of 2005 dated 08.08.2007, in paragraphs 6 to 11, has observed thus:
"6.The appellant has relied upon two proceedings of the Higher authorities dated 08.08.96 and 26.09.97. According to the appellant the arbitrator has not considered the above proceedings. It was also contended that regarding the wastage for the year 95-96 the General Body had ratified the loss in its annual general body meeting. It was argued by the respondent that though the wastage was ratified in the general body meeting it was not upheld by the Director and hence, the appellant is liable to pay Rs.22,576/- for 1995-96.
7.The appellant has not produced any document to show that the wastage for the period 1995-96 was approved by the Director for the year 1993-94 there was audit objection and the Director has agreed to waive the wastage. It was argued by the learned counsel for the appellant that since there was no audit objection the society has not approached the Director to confirm the wastage. According to the respondent on the basis of the General Body resolution this item of surcharge for the period 1995-96 should not be allowed. It was argued by the respondent that for the year 1993-94 the audit objection did not state anything regarding the wastage percentage and the charge number 1- includes surcharge amount for the year 1995-96 also, and that the surcharge amount for the year 1995-96 was not waived. The appellant has also stated that the surcharge amount of Rs.22,576/- for the year 95-96 was not waived by the Director. Hence, the appellant is liable to pay Rs.22,576.75 as surcharge for the year 1995-96 under the head of excess wastage.
8.Under the item No.2, towards difference in the prices sum of Rs.3,108/- is claimed. It was argued by the appellant that the appellant has relied upon the proceedings of the Director dt. 1.7.92 and it was not considered by the arbitrator. According to the appellant in the proceedings dated 1.7.92 the Director has written to the Federation stating that the Society makes purchases of raw silk from the Federation and when the raw silk was returned back due to defects at later point of time, the price difference is bound to have occurred. It is submitted by the appellant that there is no fault on the part of the Secretary and no surcharge can be claimed u/s.87 of the Societies Act.
9.It was submitted by the respondent that the appellant has failed to produce the permission letter issued by the Assistant Director and the surcharge amount of Rs.3,108/- is to be paid by the appellant. Since there is no permission letter from the Assistant Director, the price difference no stated in Item No.2 is liable to be paid by the appellant.
10.In respect of item number 3 the appellant has admitted that a sum of Rs.1,067.30 has been paid as difference in accounting. It was stated by the appellant that the appellant has already paid the amount and the auditor has not verified the accounts of the Society. The appellant has not produced the receipt for the payment of amount. The appellant has also stated that he is willing to pay the amount of Rs.1,067.30. Hence, the appellant is liable to pay Rs.1,067.30 towards item number 3 i.e towards difference in accounting.
11.Though surcharge award was passed for Rs.3,67,946.35, after enquiry by adopting the rules and procedures final order was passed for surcharge award of Rs.56,793.60. After considering all the aspects submitted by the appellant, the respondent has submitted that the appellant is liable to pay a sum of Rs.22,576.75 towards excess wastage during 1995-96 Rs.3,108/- towards difference in price and Rs.1,067.30 towards difference in accounting. Thus the appellant is liable to pay Rs.26,752.05. The appellant is found liable to pay the said Rs.26,752.05 as surcharge. The surcharge proceedings of the second respondent is modified to the extent directing the appellant to pay Rs.26,752.05 as surcharge. The point is answered accordingly."
24. It is to be pointed out that the term 'surcharge' is not defined under the Tamil Nadu Co-operative Societies Act, 1983. However, the word 'surcharge' refers to an additional or extra charge or payment. In effect, 'surcharge' means a charge over and above the normal or current due. Generally, an order of surcharge can be passed in regard to an individual entrusted with the management of a Society, etc., of course, if he has committed an actionable wrong either by means of an act of omission or commission in a wanton manner without taking due care and caution.
25. It is to be borne in mind that Section 87 of the Tamil Nadu Co- operative Societies Act, 1983, confers power on the Registrar or any person authorised by him in this regard, to initiate surcharge proceedings against any individual for misappropriation, fraudulent retention of money, breach of trust or causing deficiency in the assets of the society, to frame charges against him and after giving him a reasonable opportunity to answer the charges, make an order requiring him to repay or restore the money or property or pay compensation in respect thereof in accordance with the Act, bye-laws and the Rules made thereunder.
26. According to the learned Counsel for the petitioner, the petitioner has been the Secretary of the fifth respondent/Society from the year 1992-98 and again, he has been taken back to the parent Department (Co-operative Department) and as a matter of fact, the wastage of 6.25% during the year 1993-94 has been ratified by the General Body and this aspect of the wastage of 6.25% during the year 1993-94 ought to have been taken up by his successor to the appropriate authority concerned, but the same has not been done in the instant case on hand. Further, it is the contention of the learned Counsel for the petitioner that in the surcharge order under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983, dated 21.04.2004 passed by the Assistant Director of Sericulture/Surcharge Enquiry Officer, it is mentioned that the petitioner is vicariously liable for purchasing good quality thread from TANSILK and in case of deficiency of quality of thread, the same will have to be handed over by the petitioner and this observation is not correct because of the fact that the thread has been supplied by the Head Office and at the time of purchasing it, it is for the authority to test it and the petitioner is not concerned with that. The petitioner has challenged the collection of a sum of Rs.56,793.60 or Rs.56,794/- from the petitioner as per the surcharge order and further, the said amount is ordered to be recovered at Rs.1,293.60 during the month of February' 2005 and from the month of March' 2005, a sum of Rs.1,500/- p.m is ordered to be recovered for 37 months, for which the cheque has to be sent to the third respondent's office by the petitioner.
27. It is not out of place for this Court to pertinently point out that the petitioner has not challenged the surcharge order dated 31.12.2004 passed by the Assistant Director/Surcharge Enquiry Officer, Sericulture, Erode. As per the surcharge order dated 31.12.2004, passed by the Assistant Director/Surcharge Enquiry Officer, Sericulture, Erode, the petitioner has to pay a sum of Rs.56,793.60 towards surcharge amount for causing the loss to the Society.
28. The learned Counsel for the petitioner submits that the writ petitioner is not liable to pay a sum of Rs.56,793.60 except item No.3 under charge No.1 and a contention is advanced on behalf of the petitioner that the first item pertains to the excess wastage for the period from 1993-94, 1994-95, 1995-96 and from 01.04.1996 to 30.06.1996 and indeed, the Society has claimed a sum of Rs.2,55,231.05 in respect of the above period and the Department has directed that 5% reduction ought to be allowed on the ground of pilferage and natural wastage of raw silk during twisting operations. Moreover, the arbitrator has also deducted 5% for each of the four years and declared the excess percentage of deficit.
29. That apart, it is the plea of the petitioner that in respect of the year 1994-95, 1996-97, the actual deficit has been found at 5% and 4.42% respectively and the arbitrator has accepted the petitioner's version and rejected the surcharge claimed for these two years. However, in respect of the year 1993-94, the fifth respondent/Society has calculated the percentage at 6.55% and for the excess of 1.55%, the appellant has been directed to pay a sum of Rs.30,041.55.
30. For the period 1995-96, to show that the wastage has been approved by the Director, no documentary evidence has been produced on the part of the writ petitioner. As far as for the year 1993-94 is concerned, there has been an audit objection and the Director has agreed to waive the wastage.
31. The contention of the respondents 2 to 5 is that merely on the premise of resolution of the General Body, the item of surcharge for the period 1995-96 ought not to be permitted. The surcharge of a sum of Rs.22,576/- (Rupees Twenty Two Thousand Five Hundred and Seventy Six only) for the year 1995-96 has not been waived by the Director and as such, the writ petitioner is liable to pay the said sum of Rs.22,576.75 as surcharge for the period 1995-96 under the caption of excess wastage.
32. In regard to the item No.2, an amount of Rs.3,108/- (Rupees Three Thousand One Hundred and Eight only) has been claimed as difference in price. At this juncture, the learned Counsel for the petitioner places reliance on the letter dated 01.07.1992 of the Director, Sericulture Department, Salem, addressed to the District Collector, in-charge, Kanchipuram, which speaks of the Society making purchase of raw silk from the federation and when the raw silk has been returned due to defects at subsequent point of time, the price difference is bound to take place. As such, the contention of the learned Counsel for the petitioner is that there is no mistake or fault on the part of the petitioner and therefore, no surcharge amount can be claimed in terms of Section 87 of the Tamil Nadu Co-operative Societies Act, 1983. In this regard, the petitioner has not furnished the permission letter issued by the Assistant Director and therefore, he is liable to pay a sum of Rs.3,108/- (Rupees Three Thousand One Hundred and Eight only).
33. Insofar as the third item is concerned, the petitioner has tacitly admitted that a sum of Rs.1,067.30 has been paid towards difference in accounting. The writ petitioner has not produced the receipt in regard to the payment of amount and moreover, he has also stated that he is willing to pay the said amount. As such, the petitioner is to pay a sum of Rs.1,067.30.
34. On a careful consideration of the respective contentions, in the light of the qualitative and quantitative discussions mentioned supra and also bearing in mind the facts and circumstances of the present case in a cumulative fashion, though the surcharge award dated 31.12.2004 has been passed by the Assistant Director/Surcharge Enquiry Officer, Sericulture, Erode, wherein the loss details are mentioned as Rs.3,67,946.35, the loss to the Society for which the amount to be payable by the petitioner is determined at Rs.56,793.60, this Court comes to an inevitable conclusion that the petitioner is bound to pay a sum of Rs.22,576.75 under the caption "excess wastage" in respect of the period 1995-96 and to pay a sum of Rs.3,108/- (Rupees Three Thousand One Hundred and Eight only) being the difference in price and also to pay a sum of Rs.1,067.30 relating to the difference in accounting and in all, the petitioner is bound to pay a sum of Rs.26,752.05 {Rs.22,576.75 + Rs.3,108/- + Rs.1,067.30/- = Rs.26,752.05} as surcharge amount (for causing deficiency in the assets of the fifth respondent/Society) and looking at from any angle, the judgment in C.M.A.(CS)No.20 of 2005 dated 08.08.2007 passed by the first respondent/Principal District Judge, Trichy, (Tribunal), does not suffer from any serious infirmity or material irregularity warranting interference in the hands of this Court. Consequently, the writ petition fails.
35. In the result, this writ petition is dismissed, leaving the parties to bear their own costs. Consequently, the connected Miscellaneous Petition is dismissed.
rsb To
1.The Principal District Court cum Co-operative Tribunal, Trichy.
2.The Commissioner/Registrar of Co-operative Societies, Sericulture, Salem.
3.The Assistant Director of Sericulture, Trichy.
4.The Assistant Director of Sericulture, Erode.
5.The Special Officer, Uraiyur Women Silk Reeling and Twisting Co-operative Society, Thevangar Weavers' Colony, Uraiyur, Trichy - 620 003.