IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 30..7..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 7211 of 2004 THE SPECIAL OFFICER AMBUR CO OPERATIVE SUGAR MILLS VADAPUDUPET, VELLORE DISTRICT [ PETITIONER ] Vs 1 THE PRESIDING OFFICER PRINCIPAL DISTRICT COURT VELLORE. 2 S.RAMADEVI JOINT COORDINATEOR (FINANCE & COMPANY SECRETARY) TAMIL NADU COOPERATION FOR DEVELOPMENT OF WOMEN LIMITED, NO.100 ANNA SALAI CHENNAI.32. 3 A.KABALI 4 V.SATHYAMURTHY [ RESPONDENT ] Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records of the first respondent culminating in the order dated 24.11.2003 made in CTA No. 11 of 2002 on the file of the first respondent and quash the same and confirm the order of the surcharge officer contained in SC No. 3 dated 03.11.2001. For Petitioner : Mrs. G. Thilakavathi For Respondent 2 : Mr. G. Sankaran For Respondent 4 : Mr. E. Kannadasan O R D E R Heard the arguments of the learned counsel for the parties and perused the records. https://hcservices.ecourts.gov.in/hcservices/ 2. Aggrieved by the order dated 24.11.2003 passed by the first respondent Principal District Court, Vellore, the Special Officer of the Ambur Co-operative Sugar Mills has filed the present writ petition. 3. The second respondent was a former Chief Accountant in the petitioner Sugar Mills and the duties of the Chief Accountant was prescribed by the Office Order dated 29.3.1982 which includes exercise of proper supervision and control over the work of the staff attached to the Accounts Department. Apart from several other duties, it is relevant to refer to item No. 23 viz., order payment of all bills duly passed by the Special Officer / Managing Director. 4. The Co-operative Sub-Registrar, who initiated an enquiry under Section 81(1) of the Tamil Nadu Co-operative Societies Act, 1983 [for short, 'Act'], found that there was a misappropriation to the tune of Rs.4,44,437.95 by one A. Kabali, who was a Selection Grade Assistant during the period from July 1993 to December 1995. In the course of the enquriy, responsibility was also fixed on the second respondent Chief Accountant. He had observed that if only the Chief Accountant had seen before sending the cheques for signatures and verified the records, this misappropriation would have been averted. He also found that without verifying the details of payment, on the basis of written cheques, the second respondent had signed on 02.11.1993, 06.12.1993 and 10.01.1994 for payments for Rs. 5000/- and Rs. 15,000/- to M/s Divya Lakshmi Finance and on 03.02.1994 to M.S. Investments for a sum of Rs. 9891/-. Based upon the enquiry under Section 81 of the Act, surcharge proceedings were initiated against the respondents 2 to 4 by the Special Officer. Under the surcharge proceedings dated 03.11.2001, liability was fixed on the respondents 2 and 3 as they were responsible for the misappropriation of the amount. 5. As against the said surcharge order, the second respondent alone preferred an appeal under Section 152 of the Act to the first respondent District Court. The said appeal was taken on file as CTA No. 11 of 2002. 6. The contention raised by the second respondent was that the order passed in the surcharge proceedings was not based upon evidence and she was denied principles of natural justice in the enquiry. During the proceedings, the second respondent went on a foreign service as a Company Secretary to another Government company and she has come back on the completion of the said turn and now she is in the services of the petitioner Mills. https://hcservices.ecourts.gov.in/hcservices/ 7. The first respondent held that principles of natural justice have been followed and no witnesses were examined in the surcharge proceedings and it was merely based upon the enquiry proceedings under Section 81 of the Act. In the light of the same, it set aside the surcharge proceedings. It also gave a finding that there was no wilful negligence on the part of the second respondent and she had signed only after the bills were prepared by others and she has not committed any wilful default. Therefore, the appeal was allowed with costs. It is against this order, the present writ petition has been filed. 8. Mrs. G. Thilakavathy, learned counsel for the petitioner submits that the list of duties given to the Chief Accountant by the Mills clearly shows that at every stage, the Chief Accountant was responsible for passing all the bills and the finding rendered by the first respondents was erroneous. Before the surcharge proceedings, the second respondent was given an opportunity and it was she, who failed to utilise the opportunity. They did not even cross-examine the witnesses and having failed to utilise the opportunity, they cannot make a grievance out of the same. The learned counsel also submitted that the other two respondents have not challenged the surcharge proceedings and the order order has become as against them. 9. Mr. G. Sankaran, learned counsel for the second respondent submitted that the order of the first respondent does not suffer from any infirmity and this Court, under the exercise of power under Article 226 of the Constitution, should not interfere with the same. 10. However, a careful perusal of the surcharge proceedings and the list of duties given to the second respondent will clearly show that at every stage, she has got a responsibility of protecting the interest of the society and she cannot escape from the liability by alleging that she has signed the bills on the dotted lines as it was prepared by her subordinates. The finding of the first respondent that there was no wilful default and that the list of duties did not include verification of records cannot be accepted. In any event, it was the second respondent, who has not utilised the opportunity before the surcharge proceedings. She refused to cross-examine the witnesses and she, having failed to utilise the opportunity, cannot complain of violation of principles of natural justice. 11. In the light of the above, the writ petition will stand allowed and the order of the first respondent in CTA No. 11 of 2002 will stand set aside. The order of surcharge proceedings will https://hcservices.ecourts.gov.in/hcservices/ stand restored. It is open to the petitioner society to proceed further in accordance with law. However, there will be no order as to costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar gri To 1) THE PRESIDING OFFICER PRINCIPAL DISTRICT COURT VELLORE. 2) THE SPECIAL OFFICER, AMBUR COOPERATIVE SUGAR MILLS, VADAPUDUPET – 635812, VELLORE DISTRICT. +1 cc to Mrs. G. Thilakavathi, Advocate, SR.No.41175 Order in W.P. No. 7211 of 2004 NM (CO) SMK/06.8.08 https://hcservices.ecourts.gov.in/hcservices/