Andhra HC (Pre-Telangana)
A.D.S. Sarma vs Deputy Registrar Of Co-Operative ... on 30 July, 2002
Equivalent citations: 2002(5)ALD520
ORDER V.V.S. Rao, J.
1. The petitioner, at the relevant lime, was Paid Secretary of Gollavalli Primary Agricultural Co-operative Society (hereafter called as "PACS"). Alleging breach of trust, the first respondent initiated proceedings under Section 60 of the A.P. Co-operative Societies Act, 1964 (for short "(he Act"), The proceedings culminated in passing three surcharge orders dated 12-5-1986 against the petitioner as well as two former Presidents of the PACS. It appears that the two former Presidents challenged the surcharge orders before the appellate authority, namely, the Court of Principal District Munsif, Amalapuram in C.T.A.No.5 of 1986. The said appellate authority allowed the appeals and set aside the surcharge orders.
2. After surcharge orders were set aside by the appellate authority against two former Presidents, the first respondent again issued notice to the petitioner in February, 1998 and passed surcharge orders on 21-3-1998. Aggrieved by the same, the petitioner filed three writ petitions, being W.P. Nos.27498, 27478 and 27483 of 1998 in September, 1998. These writ petitions were dismissed by this Court on 10-2-1998 giving liberty to the petitioner to avail the remedy of appeal under Section 76(1) of the Act, whereupon the petitioner filed three appeals before the Co-operative Tribunal, being C.T.A. Nos. 44 of 1999. The learned Tribunal by an order dated 7-4-2001 dismissed the appeals upholding the orders of surcharge. Be it also noted that while the surcharge proceedings were pending at the instance of the society, a criminal case being CC No.46 of 1991 under Section 408 IPC, was filed before the Court of Judicial First Class Magistrate, Amalapuram and the said criminal Court by a judgment dated 22-6-1996 acquitted the petitioner finding the petitioner not guilty for the offence under Section 408 IPC.
3. Assailing the three orders passed by the Co-operative Tribunal on 7-4-2001 the following writ petitions are filed:
4. In WP No.26486 of 2001 the amount of surcharge involved is Rs. 1,808/-and in W.P. No.26491 of 2001 the amount involved is 24,298/- and in W.P No. 26501 of 2001 the amount involved is Rs.5,992/-. It is also stated across the Bar that during the pendency of the proceedings, the petitioner paid an amount of Rs. 1,000/-, 12,000/- and 3,000/- respectively, in the three writ petitions.
5. Sri G. V. Shivaji, learned Counsel for the petitioner submits that the members of the society those availed loans, who were examined as witnesses, categorically stated before the criminal Court that they borrowed certain amounts from the PACS and repaid the said amounts to the President one Vishnumurthy in the presence of the accused. Therefore, the provisions of Section 60 of the Act are not attracted for initiating surcharge proceedings. He would also submit that in the grounds of appeal before the Co-operative Tribunal it was urged that the criminal Court has acquitted the petitioner rendering the allegation of misappropriation false, but the learned Tribunal failed to consider the same. He would urge that the impugned order of the Tribunal is, therefore, vitiated by error.
6. Learned Government Pleader for Co-operation, Smt. Vijayalakshmi and Sri D. Sudershan Reddy Counsel for PACS submit that even if the petitioner is acquitted by the criminal Court, it is not a bar for initiating proceedings under Section 60 of the Act. Therefore, they contend that non-consideration of judgment of the criminal Court would not vitiate the orders passed by the Tribunal. Reliance is placed on the judgment reported in M.N. Narsamma v. H.C.M. Society, 1998 (2) ALT 248.
7. A statutory Tribunal whether or not it is exercising original or appellate jurisdiction, being a final adjudicator of the facts, is required to eschew irrelevant facts and consider all relevant facts. If the relevant facts are eschewed and irrelevant facts are considered, the same is an error on the face of record, which would be visited with invalidation by a Court of judicial review, in Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 447, it was held:
The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals; these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or in excess of it or as a result of failure to exercise jurisdictions. A writ can similarly be issued wherein exercise of jurisdiction conferred on it the Court or Tribunal acts illegally or improperly, as for instance it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court,
8. Further expanding the concept of illegality the Supreme Court in Tata Cellular v. Union of India, , has observed as under:
It is open to the Court to review the decision-maker's evaluation of the facts. The Court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. Thus, in Emma Hotels Ltd. v. Secretary of the State of Environment, (1980) 41 P & CR 255, the Secretary of State referred to a number of factors which led him to the conclusion that a non-resident's bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. The Divisional Court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. Donaldson LJ said that he could not see on what basis the Secretary of State had reached his conclusion.
9. In this case, admittedly, the Tribunal ignored the fact that the criminal Court has acquitted the petitioner for the charge of misappropriation. This attracts doctrine of illegality. Be it noted that under Section 60 of the Act surcharge proceedings can be initiated against a person, who is entrusted with the affairs of the management of the society and in such capacity has misappropriated or fraudulently retained the money or has been guilty of breach of trust in relation to the society. Be it also noted that under Section 408 of IPC, the criminal breach of trust by a clerk or servant entrusted in such capacity of the property is liable for punishment with imprisonment, which may extend to seven years. Section 60 of the Act speaks of misappropriation or fraudulent retaining of money or criminal/guilty of breach of trust. All this gives rise to an offence of criminal breach of trust as defined under Section 408 IPC.
10. The submission that in spite of acquittal order by the criminal Court, still surcharge proceedings can be initiated cannot be countenanced in its entirety. When in the similar facts and in similar circumstances and based on similar evidence the criminal Court has acquitted the petitioner under Section 408 of IPC, it would be unreasonable and arbitrary to subject the petitioner to surcharge proceedings on the same charge that he has misappropriated money or has been found guilty of breach of trust in relation of the society. In this connection, a reference may also be made to M. Paul Anthony v. Bharat Gold Mines Ltd, , wherein the realm of service jurisprudence the Supreme Court considered the question whether the disciplinary action can be initiated or continued against an employee against whom a criminal case was filed, which ended in acquittal. The Apex Court answered the question in the negative. After referring to the entire case law in Delhi Cloth and General Mills Ltd. v. Kushal Bhan, , Tata Oil Mills Co. Ltd. v. Workmen, , Jang Bahadur Singh v. Baij Nath Tiwari, , Kusheshwar Dubey v. Bharat Coking Coal Ltd, , Nelson Motis v. Union of India, , Slate of Rajasthan v. B.K. Meena, , the Supreme Court deduced the following conclusions:
(i) The departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately;
(ii) If the departmental proceedings and the criminal cases are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) or (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the disciplinary proceedings, even if they were stayed on account of pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
It was yet again observed:
There is yet another reason for discarding (he whole of the case of the respondents. As pointed out earlier, the criminal case as also the disciplinary proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined, in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted, in this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex pane departmental proceedings to stand.
11. In the considered opinion of this Court, the second principle of this branch of law applies to the facts on hand and therefore it is incumbent on the part of the A.P. Co-operative Tribunal, Vijayawada to consider this aspect of the matter. The judgment of this Court rendered by his Lordship Hon'ble Sri Justice K. Ramaswamy (as his Lordship then was) in M.N. Narsamma's case does not decide the issue that arises for consideration in this case. It is an authority for the proposition that acquittal of an employee of a society by criminal Court is not a bar for initiating surcharges proceedings under Section 60 or 61 of the Act. It is one thing to say that the authorities cannot initiate proceedings under Section 60 or 61 of the Act. It is altogether another thing whether such authorities or Tribunal can ignore a judgment of a competent criminal Court basing on same set of evidence and same set of circumstances.
12. The writ petitions, for the aforesaid reasons, are accordingly allowed. The impugned orders in OA Nos. 44, 42 and 43 of 1999, dated 7-4-2001 are set aside and the matters/shall stand remitted to the Co-operative Tribunal, Vijayawada, which is requested to dispose of the matters within four weeks from the date of receipt of this order keeping in view the principles and observations made above.