Civil Writ Petition No.13341 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:- 7.2.2011 Baldev Singh son of Kehar Singh ....Petitioner Versus The Punjab State Cooperative Supply & Marketing Federation Ltd., Chandigarh (MARKFED) and others ....Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.R.K.Sharma, Advocate for the petitioner. Mr.Harit Sharma, Advocate for respondent No.1. Mr.Sartaj Singh Gill, Deputy Advocate General, Punjab for respondent Nos.2 to 4. M ehinder S ingh S ullar , J. (Oral) The symposium of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, is that petitioner Baldev Singh was working as Field Supervisor with the Punjab State Cooperative Supply & Marketing Federation Ltd., Chandigarh (respondent No.1) (for brevity “Markfed”). It is governed by the provisions of The Punjab Cooperative Societies Act, 1961 (hereinafter to be referred as “the Act”). Petitioner was stated to have prepared the false bills of tea leaves, D-control clothes, forged the cash and proceeding books and other record of the Markfed, in order to conceal the misappropriated amount. In this manner, the Markfed claimed that as the petitioner has misappropriated the amount of more than ` 3,13,000/-, therefore, it (Markfed) raised the dispute in this context. The matter was referred to the arbitrator. The arbitrator held the petitioner guilty and directed him to pay a sum of ` 3,13,728-69 P as principal alongwith interest at the rate of 18% per annum, by virtue of award dated 17.4.1995 (Annexure P1). 2. Aggrieved by the award (Annexure P1), the appeal filed by the petitioner was dismissed as well, by the appellate authority, by way of order dated Civil Writ Petition No.13341 of 2009 2 8.1.1996. In the wake of revision petition filed by the petitioner under section 69 of the Act, the matter was remanded back by the Special Secretary Cooperation (A), Punjab for deciding it afresh, by means of order dated 2.11.1999 (Annexure P2). 3. Sequelly, the Joint Registrar (Appellate Authority) (respondent No.3) again decided the case after hearing both the parties and dismissed the appeal of the petitioner, vide order dated 12.12.2003 (Annexure P3). The revision petition (Annexure P4) filed by the petitioner was dismissed as well, by the Secretary Cooperation, Punjab (respondent No.2), by means of impugned order dated 2.9.2008 (Annexure P6). 4. The petitioner still did not feel satisfied and instituted the instant writ petition, challenging the impugned order (Annexure P6), invoking the provisions of Article 226 of the Constitution of India. 5. The case set up by the petitioner, in brief in so far as relevant, was that the award (Annexure P1) was passed without affording any opportunity of being heard to him. The appellate and revisional authorities did not consider the documents and written arguments produced by him. The impugned order thus is stated to be illegal, arbitrary, non-speaking and against the provisions of the Act. On the basis of aforesaid allegations, the petitioner only sought the quashment of impugned order (Annexure P6), in the manner indicated here-in-above. 6. The respondents contested the claim of the petitioner. Respondent No.1 filed its separate written statement, while the remaining respondent Nos.2 to 4 filed their joint written statement, inter-alia pleading certain preliminary objections of, maintainability of the petition, locus standi and cause of action of the petitioner. It was pleaded that since the petitioner did not challenge the award (Annexure P1) and order (Annexure P3) and has only challenged the impugned order (Annexure P6), so, the present writ petition is not maintainable. The respondents claimed that the show cause notice was duly issued to him. His Civil Writ Petition No.13341 of 2009 3 counsel appeared, considerably delayed the matter and sought many adjournments. Ultimately, as neither any body appeared nor any reply was filed on behalf of petitioner, therefore, the arbitrator has rightly decided the case. It was claimed that all the authorities below provided more than sufficient opportunities to the petitioner, but he did not dare to contest the proceedings. It will not be out of place to mention here that the respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. 7. Controverting the allegations contained in the written statements and reiterating the pleas raised in the writ petition, the petitioner filed the replications. That is how I am seized of the matter. 8. Assailing the impugned order (Annexure P6), the learned counsel vehemently argued that as no opportunity of being heard was provided to the petitioner, therefore, the impugned orders are illegal and against the statutory provisions of the Act. The impugned orders were stated to be non-speaking orders. In support of his contention, he has placed reliance on the judgments of Hon'ble Apex Court in cases S.N.Mukherjee v. Union of India 1990 (2) Recent Services Judgments 808; MMRDA Officers Association v. Mumbai Metropolitan Regional Development Authority & another 2005(2) Recent Services Judgments 362 and of this Court in case The Uksi Cooperative Agricultural Service Societies, Uksi v. The Assistant Registrar, Cooperative Socieites, Package Programme, Ludhiana 1985 Recent Revenue Reports 545. 9. On the contrary, hailing the impugned order, the learned counsel for the respondents urged that more than sufficient opportunities were granted to the petitioner. He was served and his counsel appeared and sought various adjournments. Thereafter, since no body appeared on his behalf, so, the arbitrator passed the award (Annexure P1) in accordance with law, which was subsequently, upheld by the appellate and revisional authorities and no interference is warranted in this context. Civil Writ Petition No.13341 of 2009 4 10. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant writ petition. 11. As is evident from the record, that the petitioner was stated to have misappropriated the amount of more than ` 3,13,000/-. He misappropriated the amount of ` 1406/-, vide bill No.48608 dated 8.2.93; clothes of ` 14800/- by virtue of Bill No.6430 dated 31.7.81; D-control clothes of ` 5283-90 P, ` 3975/-, ` 10,000/- by medium of bill Nos.47694 dated 11.4.83 & 48411 dated 23.6.88 and 4.10.1982 respectively; ` 17347.05, by way of bill No.48621 dated 16.2.1983 vide voucher No.31858 dated 18.11.82; ` 1840-95 through voucher No.639 dated 18.2.83; ` 162334-06 vide nine bilties; ` 3420/- vide bill No.282 dated 23.12.82; ` 9181-20 by means of credit note No.48535 dated 25.8.82; clothes amounting to ` 5133-08 vide Bill No.5654 dated 20.8.82 and ` 5092-41; Rs.17214/- on 9.8.82 and ` 27886.92 and again misappropriated the amount ` 37,314-89 by means of fraudulent transactions indicated in the impugned award (Annexure P1). 12. The initial cosmetic argument of the learned counsel that since no opportunity of being heard was provided to the petitioner, so, the impugned award/order (Annexure P1) is illegal and against the principles of natural justice, is not only devoid of merit but misplaced as well. 13. What is not disputed here is that the arbitrator issued notice to the petitioner. He was duly served, his counsel appeared before him on 23.1.1995 and sought adjournment. Consequently, the case was adjourned to 2.2.1995. On 2.2.1995, 22.2.1995 and 13.3.1995, the clerk of counsel for the petitioner appeared and sought adjournments. Thereafter, the case was adjourned to 3.4.1995 and then to 17.4.1995, but no body appeared on behalf of the petitioner to contest the claim of the Markfed. In that eventuality, it cannot possibly be saith that no opportunity of being heard was provided to the petitioner, as urged on his behalf. 14. Possibly, no one can dispute with regard to the observations of Civil Writ Petition No.13341 of 2009 5 Hon'ble Supreme Court in S.N.Mukherjee, MMRDA Officers Association and of this Court in The Uksi Cooperative Agricultural Service Societies's cases (supra) that an administrative authority, exercising the judicial or quasi judicial functions, should pass a speaking order, is required to record the reasons for its decision and failure to give reasons in the order amounts to denial of justice. The same would not come to the rescue of the petitioner in the instant controversy. The arbitrator, after considering the entire matter/cogent material on record, has recorded a finding of fact that petitioner has actually misappropriated the impugned amount and passed the reasoned and speaking order against the petitioner in this relevant connection. 15. Not only that, the matter was again re-examined by the appellate authority. The conduct of the petitioner as well as its counsel to delay the matter, remained the same even before the appellate authority as well. Ultimately, it dismissed the appeal, by virtue of detailed and speaking order (Annexure P3). 16. This is not the end of the matter, the petitioner again filed revision petition, which was also dismissed by the Secretary Cooperation, Punjab, by way of impugned order (Annexure P6), the operative part of which is as under:- “After hearing the arguments of the parties and perusing the impugned orders, it has been come out that the petitioner has challenged the award dated 17.4.1995 passed by the Deputy Registrar Cooperative Societies, Sangrur on two grounds. Firstly the Deputy Registrar did not give him an opportunity and passed ex-parte award by preponing the date of hearing from 24.4.1995 to 17.4.1995 without any notice to the petitioner. However, from the reading of the award it is clear that the Deputy Registrar has tried his level best but when the petitioner did not appear, he passed the award on the basis of record. From the record, it is clear that earlier also the Deputy Registrar ordered for hearing the case ex-parte. But on the request of the petitioner, the Deputy Registrar allowed him to defend his case on 10.2.1994. But thereafter the petitioner alongwith his counsel came present on 23.1.1995 before the Deputy Registrar, but thereafter neither he nor his counsel was present before the Deputy Registrar on 2.2.1995, 20.2.1995 and 13.3.1995 but the clerk of the counsel took the dates. On 3.4.1995 the next date was fixed as 17.4.1995 but when no body came present on behalf of the petitioner, the Deputy Registrar having no other option decided the case on the basis of the record. Civil Writ Petition No.13341 of 2009 6 Therefore, the plea of the petitioner that the Deputy Registrar did not give him proper opportunity of hearing is just an after thought idea and it shows that the petitioner only wants to delay the matter. The second ground of the petitioner is this that he was exonerated by the criminal courts for the same set off charges on the basis of which arbitration references were started. This is also not correct. From the perusal of the record, it is clear that the arbitrator even summoned the record from the Criminal courts and examined the same in presence of the petitioner. Moreover, the petitioner was convicted by the Judicial Magistrate Ist Class, Sangrur in Challan No.31, Challan No.26, Challan No.33 and Challan No.32 vide order dated 28.7.1993 and a sentence of one year in each case was imposed on the petitioner along with a fine of Rs.200/- and these facts were also mentioned by the Joint Registrar Cooperative Societies, Patiala in his order dated 12.12.2003 while deciding the appeal. Therefore, none of the grounds taken by the petitioner in this revision petition is sustainable. Therefore, the revision petition is without any merit and the same is dismissed.” 17. Meaning thereby, the Secretary Cooperation, Punjab (respondent No.2), in its impugned speaking order (Annexure P6) has taken a legal and pragmatic view of the matter, rightly decided the case on merits and recorded the valid reasons in this relevant direction. Such order containing valid reasons cannot legally be interfered with, in exercise of limited writ jurisdiction of this Court, unless and until, the same is perverse and without jurisdiction. As no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, therefore, the impugned order deserves to be and is hereby maintained in the obtaining circumstances of the case. 18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 19. In the light of the aforesaid reasons, as there is no merit, therefore, the instant writ petition is hereby dismissed as such. (Mehinder Singh Sullar) 7.2.2011 Judge AS Whether to be referred to reporter? Yes/No