IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE NINTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.3756 of 2001 Between: R.Satyavathy W/o. Late R.V.B.Sudarsana RAo R/o. Opp.Ankitha Apartments, Ramavarappadu, Vijayawada, Krishna District. ..... PETITIONER AND 1 The Secretary The Andhra Pradesh Government Railway Police Co-operative Society Ltd.,, Purnandampet, Vijayawada. 2 the Deputy Registrar of Coop. Societies Vijayawada, Krishna District. 3 The District Coop. Officer Machilipatnam, Krishna District. 4 The A.P.Coop Tribunal, Vijayawada, rep by its Registrar. 5 The Superintendent of Railway Police Vijayawada Krishna District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the aﬃdavit ﬁled herein the High Court may be pleased to issue Writ order, direction more particularly one in the nature of Writ of Mandamus declare the proceedings R.C.No.6085/75, dt.17.4.1989 issued by the Deputy Registrar of Cooperative Societies, Vijayawada, as conﬁrmed in O.A.No.69/96, dt.26.10.1998 on the ﬁle of Cooperative Tribunal Vijayawada as illegal, arbitrary and set aside the same. Counsel for the Petitioner: MR.P.R.K.AMERANDRA KUMAR Counsel for the Respondent Nos.1 to 4: GP FOR COOPERATION The Court made the following : THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.3756 of 2001 ORDER: This writ petition is ﬁled for a Writ of Mandamus to set aside proceedings dated 17.04.1989 of respondent No.2, as conﬁrmed in order dated 26.10.1998 in O.A.No.69/96 of respondent No.4. Heard Sri P.R.K.Amarendra Kumar, learned counsel for the petitioner, and the learned Assistant Government Pleader for Cooperation for respondents 1 to 4, and perused the record. An enquiry under Section 51 of the Andhra Pradesh Cooperative Societies Act, 1964 (for short “the Act”) into the working and ﬁnancial condition of the Andhra Pradesh Railway Police Cooperative Society Limited (for short “the Society”) was held by the Taluk Cooperative Oﬃcer and he submitted his report on 26.07.1978. He pointed out several irregularities in the working of the Society, which included ﬁctitious creation of regular loans in the names of members of the Society and debiting cash book without bonds and vouchers, refund of share capital, suppression of cash balance by wrong totals, etc., and violation of bylaws on the part of Sri R.V.B.Sudarsana Rao, (for short, “the employee”), the husband of the petitioner, who was the Secretary of the Society. The enquiry oﬃcer quantiﬁed total sum said to have been misappropriated at Rs.48,212.25 ps. On the basis of the enquiry report, a criminal complaint was given against the employee, which was taken on ﬁle as C.C.No.50 of 1980 in the Court of V Additional Judicial Magistrate of I Class, Vijayawada. Simultaneously, surcharge proceedings under Section 60(1) of the Act were initiated. The employee has not oﬀered his explanation, though time was taken on a number of occasions. While the surcharge proceedings were pending, criminal case ended in acquittal of the employee on 29.10.1986. Respondent No.2 passed order dated 17.04.1989 under Section 60(1) of the Act, wherein he held that the enquiry clearly established various omissions and commissions on the part of the employee and he directed that the employee shall make good the amount of Rs.28,088.25 ps with interest at 18% per annum from the date of the order, to the Society. This order of respondent No.2 was questioned by the employee before respondent No.4-Tribunal, which has taken the appeal on ﬁle as O.A.No.69 of 1996. By its order, dated 26.10.1998, respondent No.4 dismissed the said appeal. Assailing these orders, the petitioner, who is the wife of the employee, who died on 22.07.1999, filed this writ petition. At the hearing, Sri P.R.K.Amarendra Kumar, learned counsel for the petitioner, advanced the only contention, namely; that respondents 2 and 4 failed to take into consideration the judgment of the criminal court acquitting the husband of the petitioner. He submitted that since criminal and surcharge proceedings pertain to the same issue, the ﬁnding of the criminal court is binding on respondents 2 and 4. I have carefully considered the submission of the learned counsel for the petitioner. A perusal of order dated 17.04.1989 passed by respondent No.2 shows that the employee acknowledged show cause notice issued by respondent No.2 and requested for time to ﬁle his explanation, that he dragged on the case for several years on the pretext of perusal of records, that to the repeated notices issued to the employee, he was making requests to grant time and eventually, even after more than ten years, he failed to submit his explanation. It is noteworthy that while the criminal case ended on 29.10.1986, the employee failed to ﬁle his explanation for more than two and half years before respondent No.2 and there is nothing on record to show that he brought the fact of his acquittal to the notice of respondent No.2. The employee, having failed to submit his explanation to the show cause notice and make any eﬀort to convince respondent No.2 to drop surcharge proceedings, it is not open to the petitioner to raise the plea that the order passed by respondent No.2 is liable to be set aside in view of acquittal of the employee. In order to examine whether the criminal court gave speciﬁc ﬁndings on the innocence of the employee, I have carefully gone through the judgment of the criminal court in C.C.No.50 of 1980. The main plank on which the employee was acquitted was that the prosecution absolutely failed to take any interest and failed to examine the Superintendent of Police, Railways, who was the President of the Society at the relevant time, to speak about the entrustment of cash dealings to the employee and that his non-examination was fatal to the case of the prosecution. Thus, the acquittal of the employee was based on insuﬃciency of evidence and not on the ﬁnding that the employee has not committed the offence. In its order, respondent No.4 observed that the judgment of the criminal court was based on lack of evidence adduced by the prosecution and therefore, the same does not bind the Tribunal. I ﬁnd this reasoning of the Tribunal valid. Unless the employee was acquitted on the ﬁnding that he has not committed the oﬀence, his mere acquittal on the ground of prosecution failing to prove the guilt of the employee does not entitle him to exoneration in the surcharge proceedings. The surcharge order is based on the detailed inspection report of the enquiry oﬃcer and in the absence of the employee pointing out the ﬂaws in the ﬁnding of the enquiry oﬃcer in his report, the surcharge order is not liable to be interfered with. For the abovementioned reasons, I do not ﬁnd reason to interfere with the orders passed by respondents 2 and 4. Learned counsel for the petitioner submitted that in view of passing of the surcharge order, the retirement beneﬁts of the employee have not been paid to the petitioner. He fairly stated that the petitioner is willing for adjustment of surcharge amount from out of the retirement beneﬁts payable to the petitioner. I ﬁnd this submission reasonable. Accordingly, respondent No.5 is directed to adjust the liability of the husband of the petitioner, arising under order dated 17.04.1989 passed by respondent No.2, from out of the retiral beneﬁts receivable by the petitioner on behalf of her husband, and pay the balance amount to the petitioner after such adjustment within a period of eight weeks from the date of receipt of a copy of this order. Subject to the above observations, the writ petition is dismissed. ________________________ C.V.NAGARJUNA REDDY, J September 9,2008. sh