1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.7762 of 2011 And M.P.(MD).Nos. 1 & 2 of 2011 B.Indra ... Petitioner -Vs- 1. The Joint Registrar Theni Region Collectorate Complex Theni District 2. The Deputy Registrar LD Bank Building Uthamapalayam Theni District 3. Enquiry Officer Section 81 Kottakudi Primary Agricultural Co-operative Bank Bodinayakanur Theni District ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus calling for the records pertaining to the report of the third respondent dated 10.01.2011 and quash the same and consequently direct the second respondent to order a fresh Section 81 enquiry by replacing the third respondent. *** For Petitioner : Mr.V.O.S.Kalaiselvam For RR 1 & 2 : Mr.B.Pugalenthi Special Government Pleader For 3rd Respondent: Mr.T.S.Mohamed Mohideen Additional Government Pleader O R D E R The petitioner has challenged a report, dated 10.01.2011 of the Enquiry Officer, Kottakudi Primary Agricultural Cooperative Bank, Bodinayakanur, Theni District, the third respondent herein, appointed under Section 81 of the Tamil Nadu Co- operative Societies Act, contending inter alia that the Enquiry Officer has drawn up the report based on the statements received from the members of the Society in a biased manner. He has https://hcservices.ecourts.gov.in/hcservices/ 2 further submitted that the report has been obtained by coercion and intimidation and that the Enquiry Officer has recorded evidence as if petitioner has given statement, on her own accord. It is further submitted that the Enquiry Officer has also been influenced by the then Secretary of Kottakudi Primary Agricultural Co-operative Bank, and that he has paid a lump-sum amount to the Enquiry Officer. It is the further submission of the petitioner that the Enquiry Officer's report is not based on documentary evidence and that, the enquiry is farce. The petitioner has also contended that though a complaint, dated 24.02.2011, has been made to the President, Tamil Nadu Women Commission, alleging sexual harassment by the Enquiry Officer, no action has been taken. It is also submitted that as the Enquiry Officer was biased, a request was also made to change the Enquiry Officer and that there was no response by the Deputy Registrar, Theni District. 2. According to him, the enquiry under Section 81 of the Act, has been directed only against Mr.Sivakumar, the then Secretary of the Society and that therefore, the Enquiry Officer has erred in rendering a prima facie finding against the petitioner contrary to the facts and evidence. Lastly he submitted that if this Court is not inclined to entertain the Writ Petition, as the report under Section 81 of the Act is a decision made under the provision of the Tamil Nadu Co-operative Societies Act, the learned counsel for the petitioner, made a request to the Court, to permit the petitioner to prefer a Revision Petition under Section 153 of the Tamil Nadu Co- operative Societies Act. 3. Heard the learned counsel for the petitioner and perused the materials available on record. 4. Pleadings and material on record shows that certain complaints have been received against the Secretary of Kottakudi Primary Agricultural Co-operative Bank and after examining the same, the Deputy Registrar of Co-operative Society, Uthamapalayam, by his proceedings in R.C.No.38614/09 SF 2(1), dated 06.03.2009, has ordered an enquiry under Section 81 of the Tamil Nadu Co-operative Societies Act. 5. Pursuant to the directions stated supra, the Enquiry Officer, the third respondent herein, has submitted the inquiry report under Section 81 of the Act, with the specific finding regarding the financial irregularities, alleged to have been committed in the Society, which includes misappropriation of the funds of a Society. Enquiry under Section 81 of the Act is ordered when there is a dispute regarding constitution, working and financial conditions of a registered society or any alleged misappropriation, fraudulent retention of any money or property, breach of trust, corrupt practice, or mis-management in relation to that society or into any particular aspect of the working of that society. 6. In the case on hand, though a detailed report has been submitted to the Deputy Registrar of the Co-opeartive Societies, Theni District, and there are no averments in the supporting affidavit, as to whether any action has been taken in pursuance of the report. https://hcservices.ecourts.gov.in/hcservices/ 3 7. Reading of the report also shows that there is a specific finding relating to financial irregularities like misappropriation, etc., said to have been committed by the petitioner and others. A report under Section 81 of the Act is only to enable the competent authority, to take appropriate departmental /criminal action, if required. The contention that signatures have been obtained by the Enquiry Officer, from the petitioner under threat is a matter to be proved by letting in evidence, if any action is taken under the provision of the Tamil Nadu Co-operative Societies Act or under the penal laws. It is premature to adjudicate the said contention. Allegations of misappropriation of banks fund and financial irregularities are prima facie reported by the Enquiry Officer, duly appointed under the provisions of the Tamil Nadu Co-operative Societies Act and it is not open to the writ petitioner to call upon this Court to render any finding, on mere averments, when the facts alleged, have to be proved by letting in oral and documentary evidence, before the competent authority. 8. Reading of the report further shows that the Enquiry Officer has considered both oral and documentary evidence, before arriving at a prima facie conclusion. The allegation that the Enquiry Officer has indulged in harassing the writ petitioner and that, she has made a complaint, dated 24.02.2011 to the President, Tamil Nadu Women Commission and therefore, he was biased, is no ground to seek for quashing of the report, under Section 81 of the Co-operative Societies Act. 9. Though the petitioner has averred that she has sent a complaint on 24.02.2011, she has pursued the same nor approached the said forum Court of law for any action. It is well settled that mere averments do not stand the test of proof and the allegations levelled against the Enquiry Officer, like bias, favoritism, receipt of bribe in rendering a finding against the petitioner, cannot be gone into under Article 226 of the Constitution of India as Writ Court cannot fit in over appeal over the fact finding authority's report. 10. The request of the learned counsel for the petitioner that the petitioner should be permitted to prefer a revision before the competent authority is rejected, considering the gravity of the alleged financial irregularities alleged to have been committed, in the bank. Section 87 of the Tamil Nadu Co- operative Societies Act states that where in the course of an audit under Section 80 or an inquiry under Section 81 or an inspection or investigation under Section 82 or inspection of books under Section 83 or the winding up of a society, it appears that any person who is or was entrusted with the organisation or management of the society or any past or present officer or servant of the society has misappropriated or fraudulently retained any money or other property or been guilty of breach of trust in relation to the society or has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has made any payment which is not in accordance with this Act, the Rules or the bye-laws, the Registrar, himself or any person specially authorised by him in this behalf, of his own motion or on the application of the board, liquidator or any creditor or contributor may frame https://hcservices.ecourts.gov.in/hcservices/ 4 charges against such person or officer or servant and after giving a reasonable opportunity to the person concerned and in the case of a deceased person, to the representative who inherits his estate, to answer the charges, make an order requiring him to repay or restore the money or property or any part thereof with interest at such rate as the Registrar or the person authorised as aforesaid thinks just or to contribute such sum to the assets of the society by way of compensation in respect of the misappropriation, mis-application of funds, fraudulent retainer, breach of trust or wilful negligence or payments which are not in accordance with this Act, the Rules or the bye-laws as the Registrar or the person authorised as aforesaid thinks just: 11. Admittedly, in furtherance of the report, no action has been taken so far, under Section 87 of the Act is taken against the petitioner, it is always open to the petitioner to submit her defence raising all the points, made in this Writ Petition. 12. Though the petitioner has claimed to have applied for change of Enquiry Officer, alleging bias, material on record shows that she had participated in the enquiry and let in evidence. It is well settled that after participating in the request for change of Enquiry Officer, cannot be granted. The contention of bias, favoritism allegation of receipt of bribe, etc., raises in this Writ Petition are all on facts and Writ Court, cannot delve into factual aspects. The Writ Petition seeking to quash the report, under Section 81 of the Act, cannot be entertained, and it is for the authority to examine the same and taken suitable action. 13. For the reasons stated supra, the Writ Petition is dismissed. Consequently, connected Miscellaneous Petitions are also dismissed. No costs. Sd/- Assistant Registrar(Records) /True Copy/ Sub-Assistant Registrar To 1. The Joint Registrar Theni Region, Collectorate Complex Theni District 2. The Deputy Registrar LD Bank Building Uthamapalayam, Theni District 3. Enquiry Officer, Section 81 Kottakudi Primary Agricultural Co-operative Bank Bodinayakanur, Theni District +One Cc To The Spl Govt. Pleader, SR.No.23132 vsg rl/5c – 25.7.2011 W.P.(MD).No.7762 of 2011 And M.P.(MD).Nos. 1 & 2 of 2011 14.07.2011 https://hcservices.ecourts.gov.in/hcservices/