IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SECOND DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No : 13095 of 2009 Between: B.Sita Rama Murthy S/o. Late B.Satyanandam O/o. The Visakhapatnam Cooperative Central Stores Ltd. Visakhapatnam. R/o. H.No. 22-62-1, Gjula Veedhi, Town Hall Road, Visakhapatnam-1. ..... PETITIONER AND 1 The Government of AP, Cooperative Department Rep. by its Principal Secretary to Government Secretariat, Hyderabad. 2 The commissioner For Cooperation and Registrar of Cooperative Societies, Andhra Pradesh, Hyderabad. 3 The Visakhapatnam Cooperative Central Stores Ltd., (Super Bazar ), Visakhapatnam, Rep. by its Additional Registrar / Managing Director. 4 The Joint Registrar / District Cooperative Officer, Visakhapatnam, Visakhapatnam District. 5 The District Cooperative Audit Officer and Enquiry Officer, The Visakhapatnam Cooperative Central Stores Ltd., ( Super Bazar ), Visakhapatnam .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, Order or direction more particularly one in the nature of writ of Mandamus to declare the proceedings Rc.No. 15380/2008-Cons-1, dated 23.03.2009 in appointing the 5th respondent as Enquiry Officer to conduct Enquiry under Section 51 of the violative of Article 14 and 21 of the Constitution of India and contrary to the provisions of the Andhra Pradesh Cooperative Societies Act and Rules made there under. Consequently set aside the proceedings Rc.No. 15380/2008--Cons- 1, dated 23.03.2009 and also direct the 2nd respondent to appoint an enquiry Officer who is superior to the Managing Director of the orders as it may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.L.V.S.NAGARAJU Counsel for the Respondent No.: GP FOR COOPERATION The Court at the stage of admission made the following O R D E R: The writ petitioner was a former Accounts Officer of The Visakhapatnam Co-operative Central Stores Limited, the 3rd respondent Society. He has since retired from service of the said Society. When it has come to the notice of the Registrar and Commissioner for Cooperation, Government of Andhra Pradesh that there are certain financial irregularities committed, while conducting the affairs of the 3rd respondent Society, to a tune of Rs.23 lacs, the Commissioner has ordered an enquiry, under Section 51 of the A.P. Co-operative Societies Act, 1964 (for short, ‘the 1964 Act’). Initially, he has appointed the Joint Registrar of Co-operative Societies-cum- District Co-operative Officer to conduct such an enquiry. Subsequently, by an order passed on 23rd March 2009, impugned in this Writ Petition, the Commissioner replaced the Joint Registrar- cum-District Co-operative Officer with the District Co-operative Audit Officer, Visakhapatnam to conduct the enquiry under Section 51 of the Act. Orders to this effect were communicated to the said Enquiry Officer, who, in turn, issued summons to the writ petitioner herein through his proceedings, dated 1st May 2009, directing him to appear before him on 22nd May 2009 at 11.00 A.M, for participating in the enquiry. The Writ Petitioner has not disclosed as to what had happened on 22nd May 2009, but however, in the present Writ Petition, orders of the Commissioner for Cooperation, dated 23rd March 2009 have been challenged only on the ground that the Managing Director of the 3rd respondent Society occupies the rank of Additional Registrar of Co-operative Societies and consequently, the District Co-operative Audit Officer, Visakhapatnam, the present Enquiry Officer is a junior level officer and hence, can be construed to be a subordinate to the Managing Director of the 3rd respondent Society and since the involvement of the Managing Director of the 3rd respondent Society is suspected for the financial irregularities said to have been committed, the writ petitioner does not expect an unbiased enquiry report from the 5th respondent Enquiry Officer. Therefore, the writ petitioner submits that only an officer, who occupies a superior rank than the Managing Director of the 3rd respondent Society, can conduct such an enquiry. Section 51 of the 1964 Act authorizes the Registrar either on his own motion, or upon an application of the Society to which the society concerned is affiliated, or upon a request made by one-third of the members of the Committee of any Society, or upon a request of one-fifth of the total number of members of a Society, to hold an enquiry or direct some person authorized by him to hold such an enquiry into the constitution, working and financial condition of a society. Section 51 further makes it clear that such an enquiry will have to be completed within a period of four months and the report of the enquiry along with the findings of the Registrar thereon shall be communicated to the Managing Committee of the Society and it shall be the responsibility of the Managing Committee to place the enquiry report before the General Body or Special General Body convened for its information, within a period of one month from the date of receipt of communication of the enquiry report by the Registrar. The Registrar shall be the competent authority to initiate action under the provisions of the 1964 Act, in case the committee fails to take action as aforesaid. It is, therefore, abundantly clear that the Registrar of Co-operative Societies either himself or through any other officer authorized by him can get the enquiry conducted into the constitution, working and financial affairs of a Society. The enquiry report is bound to be considered by the Registrar. Such an enquiry report is also bound to be transmitted to the Managing Committee of the Society concerned which, in turn, will place it for consideration before its General Body. Until and unless an enquiry is conducted, it will not be possible or feasible for anyone to know as to whether there are any financial irregularities committed with regard to the affairs of the Society or not and if any such financial irregularities are committed, as to who is responsible for such irregularities. Until such a finding is recorded, no individual responsibility can be fastened on to any of the employees or persons responsible for the financial irregularities of the Society. The apprehension of the writ petitioner that the Enquiry Officer, occupying a status inferior to that of the Managing Director of the 3rd respondent Society will not be acting with the necessary sense of impartiality, is a far-fetched contention. By the very nature of his occupation, the Commissioner and Registrar, being the only superior office than the 3rd respondent were asked to conduct every such inquiry under Section 51 of the Act, the process will seldom get concluded. The scope and content of Section 51 is in the nature of fact finding enquiry. For that purpose, rightly, the Statute has left the necessary discretion in the hands of the Registrar of Co-operative Soceities. The Enquiry Officer is bound to collect all such material that is available on record of the Society and in the process, he is also entitled to collect such material as is brought to his notice during the course of enquiry for which purpose, he has already issued summons to the writ petitioner to be present before him on 22nd May 2009 at 11.00 A.M. It is, therefore, for the petitioner and all such persons to whom similar notices have been issued to participate in the enquiry and demonstrate as to the nature of duties assigned and responsibilities performed by each individual employee and assist the Enquiry Officer to arrive at a correct conclusion. The writ petitioner is absolutely free to demonstrate as to how he is not responsible as an Accounts Officer of the 3rd respondent Society at the relevant point of time, for any financial irregularities said to have taken place in the 3rd respondent Society. The status of the Managing Director vis-à-vis the Enquiry Officer has no nexus as at present. If the material available with the Society indicates that it is the Managing Director of the 3rd respondent Society who alone or along with any other employee is responsible for any of the financial irregularities, I have no doubt in my mind that the Enquiry Officer will not fail in his report to advert to such material and draw appropriate conclusions there from. This apart, the Managing Committee of the Society as well as the General Body of the Society will have adequate opportunity to peruse the report of the Enquiry Officer as and when made available by the Registrar to them and in case, the enquiry report has failed to fix up properly the accountability on any other officer or agency of the Society including that of the Managing Director of the said Society, I have no doubt in my mind that they will not fail to bring it out during the course of consideration of the report of the Enquiry Officer. Hence, no prejudice will be caused to the case or claim of the writ petitioner. To my mind, the present Writ Petition is purely speculative in nature and it is obviously intended to ensure that the enquiry, which is liable to be concluded within a maximum period of four months, is stalled from being completed quickly. I, therefore, do not find that the writ petitioner has made out any ground for admission of this Writ Petition. Accordingly, the Writ Petition is dismissed at the stage of admission. No costs. ---------------------------------- (NOOTY RAMAMOHANA RAO, J) 2nd July 2009 ksld ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{KSRANI}