IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 4.3.2010 CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL W.P.No.19137 of 2002 V.Sethuraman Petitioner vs. The Deputy Registrar of Co-operative Societies, Usilampatti at Thirumangalam. Respondent Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari calling for the records of the respondent in Na.Ka.1553 of 2001 Sa.Pa. Dated 23.4.2002 and quash the same as illegal, unlawful and without jurisdiction. For petitioner : T.S.Rajamohan For respondent : Mr.D.Srinivasan ORDER The writ petition is filed praying to issue a writ of certiorari to call for the records in Na.Ka.1553 of 2001 Sa.Pa. Dated 23.4.2002 and quash the same as illegal, unlawful and without jurisdiction. 2. The petitioner was elected as one of the Board of Directors of Usilampatti Agricultural Producers Co-operative Stores in the election that was conducted in the year 1996. He was also elected as President of Usilampatti Agricultural Producers Co-operative Stores by the office bearers. 3. Pursuant to the decision taken by the Government of Tamil Nadu, the elected Board was superseded throughout the State and thereafter, a Special Officer was appointed to discharge the day to day functions of the Co-operative Societies. 4. The respondent-Deputy Registrar of Co-operative Societies, Usilampatti initiated suo motu proceedings as against the petitioners and others under section 87 of the Tamil Nadu Co-operative Societies Act vide his proceedings in Na.Ka.1553 of 2001 Sa.Pa. Dated 23.4.2002 directing the petitioner and others to show cause as to why the loss occasioned to the Society should not be collected from the petitioner and others. In the charge memo slapped on the petitioner and others, the following allegations were found:- https://hcservices.ecourts.gov.in/hcservices/ (i) There was irregular appointment without associating the Employment Exchange. (ii) There was appointment of daily wagers against the spirit of the Circular issued by the Registrar and the resolution passed by the Society. (iii) Retention of money meant for procurement of PDS rice against the rules. (iv) Payment of excess salary to the employees against the spirit of the circular issued by the Registrar and also the resolution passed by the Society. (v) Digging up of bore-wells without calling for quotations as per the rules. (vi) The petitioner chose to spend money for organizing a function against the rules. (vii) Reimbursement of Dearness Allowance by the petitioner in his capacity as President of the Society without properly preparing the T.A.Bills and also without furnishing the required particulars to claim the Dearness Allowance. 5. The respondent initiated surcharge proceedings as against the petitioner and others based on the inspection conducted as per section 82 of the Tamil Nadu Co-operative Societies Act, 1983. The grievance of the petitioner is that surcharge proceedings were initiated by the respondent sans any jurisdiction without furnishing copy of the base inspection report. It is also contended by the petitioner that various statutory provisions contemplated under the Tamil Nadu Co-operative Societies Act, 1983 (hereinafter referred to as "the Act") as well as the rules framed thereunder were not strictly adhered to beforeever slapping the petitioner with the aforesaid show cause notice. 6. Learned counsel appearing for the petitioner would vehemently submit that the nature of inspection which was conducted by the respondent under section 82 was not detailed in the surcharge proceedings issued by him. Referring to section 82(5) of the said Act, he would submit that no step was taken by the respondent to remove the defects noted down by the respondent during the course of inspection embarked upon under section 82 of the Act. The provision under section 104(1) and 104(7) of the Tamil Nadu Co-operative Societies Rules, 1988 (hereinafter referred to as "the Rules) was not strictly adhered to by the respondent while initiating surcharge proceedings as against the petitioner and others. The respondent has shown haste in initiating surcharge proceedings by jumping over the mandatory provisions contemplated under the Act as well as under the Rules. Referring to the decision of this court, he would submit that no proceedings under section 87 of the Act could be initiated by the respondent without serving a copy of the inspection report alleged to have been prepared under section 82 of the Act. It is further submitted that the employees appointed by the petitioner were subsequently regularized as per the orders of the court. Therefore, https://hcservices.ecourts.gov.in/hcservices/ there can be no charge that there was irregularity in appointment of the employees. Flimsy charges were levelled as against the petitioner and others. Without giving a chance to the Society to rectify the defects noted by the respondent, surcharge proceedings under section 87 of the Act was initiated by the respondent, it is further submitted. 7. Learned Government Advocate would submit that the copy of the inspection report need not be annexed alongwith the surcharge proceedings issued as against the petitioner and others invoking the provision under section 87 of the Act. The inspection report and other documents that would be relied upon by the respondent during the course of surcharge proceedings would be definitely served on the petitioner. It is his further submission that there is no provision under the Tamil Nadu Co-operative Societies Act or the Tamil Nadu Co- operative Societies Rules which mandates the annexure of the inspection report which was the basis for issuing the surcharge proceedings. It is his further submission that regularization of service of the employees appointed by the petitioner during his tenure would not absolve the irregularities charged as against the petitioner and others. Therefore, he would submit that the writ petition deserves dismissal. 8. The impugned surcharge proceedings as against the petitioner and others for various irregularities were initiated based on the inspection of the Society under section 82 of the Act. Under section 82, the Registrar is empowered to investigate into any alleged misappropriation, fraudulent retention of money or property, breach of trust, corrupt practice or mis-management in relation to the Society. Such an inspection or investigation can also be done by the Registrar based n the application submitted by a creditor of the registered Society. During the course of inspection or investigation embarked upon by the Registrar under section 82 of the Act, if it appears to the Registrar that some misappropriation has been done or fraudulent retention of money was committed or there was breach of trust in relation to the Society, the Registrar is empowered to issue surcharge proceedings as against the erring persons. In the surcharge proceedings, he is empowered to frame charges as against the erring officials. He is bound to give reasonable opportunity to the person concerned to answer the charges and thereafter he is empowered to make an order requiring the person concerned to repay or restore the money to the Society. 9. As rightly pointed out by the learned Government Advocate, neither section 82 nor section 87 of the Act contemplates furnishing of report of the inspection done by the Registrar before he initiates surcharge proceedings. 10. Let me now deal with Rule 104 of the Tamil Nadu Co-operative Societies Rule, 1988 which is banked upon by the learned counsel appearing for the petitioner to drive home the point that a copy of the inspection report shall be submitted by the Registrar. With due https://hcservices.ecourts.gov.in/hcservices/ respect, I may observe that Rule 104(1) and (2) of the Tamilnadu Co- operative Societies Rules, 1988 would apply only in a case where investigation is done by the Registrar based on the application submitted by one of the creditors of the Society. Rule 104 will not apply to a case where suo motu investigation or inspection is done by the Registrar. As per Rule 104(7) of the Rules, the result of the inspection or investigation shall be submitted by the Registrar to the Society concerned, the financing bank to which the Society is affiliated, the Federal Society concerned and also to the creditor concerned where the inspection or investigation was made on the basis of the application submitted by the creditor. At any rate, Rule 104(7) also does not mandate that the result of the inspection or investigation or the report of the inspection or investigation made by the Registrar under section 87 of the Act shall be served on the person who is charged with the surcharge proceedings under section 87 of the Act. 11. Of course, the inspection or investigation will have to be completed within a period of three months or within a period of six months if it has been extended by the higher authorities concerned as per section 82(4) of the Act. Further, if the Registrar is convinced that the defects noted during the inspection or investigation could be rectified by the Society, the Registrar, in his discretion, may direct the Society or any Officer of the Society concerned to remedy such defect as per section 82(5) of the Act. Such a discretion has been given under the aforesaid provision of law to the Registrar as it may be a case where some grave defects may not be curable. 12. It may be a case where inspection or investigation taken up by the Registrar was not completed within the time frame contemplated under section 82(4) of the Act. But, such a lapse on the part of the Registrar cannot be projected as a ground for quashing the entire proceedings initiated under section 87 of the Act. It is left to the person concerned who is slapped with the surcharge proceedings to take such a defence during the course of enquiry. He also cannot have a grievance that opportunity was not given to rectify the defect noted down by the Registrar during the course of inspection or investigation as a discretion has been given to the Registrar to send a communication to the Society or the Officer concerned of the Society to remedy the defects if any that could be rectified as per section 82(5) of the Act. 13. The learned counsel appearing for the petitioner would submit that a decision of this court in CHOCKAPPAN v. THE SPECIAL TRIBUNAL FOR CO-OPERATIVE CASES, MADRAS (1999 (1) MLJ 587). The ratio laid down by this court in VENKATARAMAN v. DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES ((1978) 1 MLJ 284) which reads as follows was followed by this court in the above decision:- "Undoubtedly if a liability was sought to be fastened to the petitioner on the basis of certain statements, he should be given an opportunity to cross-examine https://hcservices.ecourts.gov.in/hcservices/ those witnesses. But no such opportunity was ever afforded to the petitioner. Merely because the petitioner did not specify the documents which he wanted to peruse, it would not mean that it would cure the failure to afford an opportunity. So also, the fact that he had a remedy by way of appeal to the Co- operative Tribunal was not a substitute for not affording an opportunity since the same handicap which was prevailing before the original authority would continue to prevail. In the result, on the simple ground of violation of the principles of natural justice, the writ petition was liable to be allowed and the impugned order quashed." 14. That was a case where a surcharge proceedings initiated as against the President and Ex-Vice President and Ex-Directors of the Co-operative Society ended against them and the appeal preferred by them was also dismissed by the Tribunal. In the said case, it appears that the Registrar chose to rely upon certain documents/materials against the President/Vice President and the Board of Directors against whom surcharge proceedings were initiated without furnishing copies of those documents and materials used as against them. Therefore, relying upon the decision of this court in VENKATARAMAN v. DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES ((1978) 1 MLJ 284), this court held that unless the parties facing surcharge proceedings were given proper and reasonable opportunity, the Registrar cannot pass an order in the surcharge proceedings as it would amount to denial of opportunity to the persons concerned. 15. In the instant case, the petitioner was slapped with the charge in the surcharge proceedings initiated by the respondent. During the course of surcharge proceedings, of course, the respondent is bound to serve copies of all the documents/materials relied upon by them to take a decision in the surcharge proceedings and the petitioner also is entitled to seek for production of the relevant document/material for the purpose of defending himself. In the considered opinion of this court, the present writ petition has been filed at a premature stage even before enquiry was embarked upon based on the charge memo issued on the petitioner. Therefore, the aforesaid decision will not have any application to the facts and circumstances of this case. 16. The learned counsel appearing for the petitioner also would refer to the decision of this court in SAMBANDAM v. THE DEPUTY REGISTRAR (CREDIT) CO-OPERATIVE SOCIETIES, MYLAPORE, MADRAS (1999 (III) MLJ 310) wherein it has been held as follows:- "Coming to the next aspect, it is stated that except the show-cause notice the petitioner was not provided with the claim made by the first respondent and the report of the enquiry Officer. In this regard, it is relevant to mention that if any surcharge proceeding is https://hcservices.ecourts.gov.in/hcservices/ initiated under Sec.71 of the Act the same has to be done in accordance with the said provision. The second proviso of Sec.71(1) makes it clear that, "No order shall be passed against any person referred to in this sub-section unless the person concerned has been given an opportunity of making his representations." The said provision makes it clear that if any proceeding is initiated under Sec.71, before passing final order, the person concerned must be given an opportunity to putforth his claim. In our case, even though an enquiry was conducted under Sec.65 of the Act, at the instance of the Registrar of Co-operative Societies the copy of the said enquiry report has not been furnished to the petitioner. The said position is clear even from the order of the third respondent. In the light of second proviso to Sec.71(1) in the absence of proof of furnishing copy of the enquiry report further action taken by the first respondent, in pursuance of the enquiry report cannot be sustained on the principles of violation of statutory provision as well as natural justice. Accordingly, I sustain the contention made by the learned counsel appearing for the petitioner." 17. That was a case where the President of the Society absented himself and invited an ex parte order as against him at the hands of the Registrar after submitting his reply in person in the form of written explanation alongwith 12 documents to substantiate his defence. Even before furnishing a copy of the enquiry report, the written explanation submitted by the President alongwith 12 documents was considered in absentia of the petitioner and an ex parte order was passed. Under such circumstances, this court held in the aforesaid decision that non-furnishing of copy of the enquiry report would amount to denial of an opportunity to make the representation of the President. 18. In the instant case, a direction very well can be given to the Registrar to furnish a copy of the inspection report so as to enable the petitioner herein to participate in the surcharge proceedings effectively. But, non-furnishing of copy of the inspection report, as the surcharge proceedings are at initial stage, cannot be a ground to quash the entire proceedings initiated by the respondent. 19. As serious irregularity has been pointed out by the Registrar during the course of inspection and the surcharge proceedings have been initiated based on the inspection made by the Registrar, it is premature to conclude that the allegations levelled by the respondent in the surcharge proceedings are baseless. 20. The petitioner has not made out a case for quashing the https://hcservices.ecourts.gov.in/hcservices/ proceedings as it is found that the respondent has initiated the surcharge proceedings rightly under section 87 of the Act and no statutory provisions have been violated while initiating such proceedings. Therefore, the writ petition stands dismissed. There is no order as to costs. The respondent shall serve a copy of the inspection/investigation report to the petitioner to enable him to submit his representation. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar ssk. To The Deputy Registrar of Co-operative Societies, Usilampatti at Thirumangalam. +1 C.C.to Government Pleader – SR No.15042 W.P.No.19137 of 2002 4.3.2010. https://hcservices.ecourts.gov.in/hcservices/