1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 3/8/2011 C O R A M THE HONOURABLE Mr. JUSTICE S.MANIKUMAR Writ Petition (MD)No.8447 of 2011 P.Chellamuthu ..Petitioner Vs 1. The Commissioner of Agriculture/The Registrar Agriculture Engineering Service, Department of Agriculture Chepauk, Chennai 600 005. 2. The Deputy Registrar Agriculture Engineering Service, Department of Agriculture Chepauk, Chennai 600 005. 3. The Senior Co-operative Sub-Registrar/Enquiry Officer Agriculture Engineering Service, Department of Agriculture Chepauk, Chennai 600 005. ...Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified mandamus to call for the enquiry report in Na.Ka.No.80681/11/AES 4 dated 18/3/2011 on the file of the third respondent and quash the same and consequently forbearing the second respondent from enforcing the surcharge proceedings on the basis of the impugned enquiry report dated 18/3/2011 passed by the third respondent. For Petitioner : Mr.K.S.Sankhar Murali For Respondents : Mr.S.Chandrasekar, GA O R D E R Seeking to quash the enquiry report dated 18/3/2011 under Section 81 of the Tamil Nadu Co-operative Societies Act, 1973 and for a consequential prayer forbearing the Deputy Registrar, Agriculture Engineering Service, Department of Agriculture, Chepauk, Chennai, from enforcing the surcharge proceedings based on the said report, the petitioner has sought for a writ of certiorarified mandamus. 2. Pleadings disclose that an enquiry has been ordered under Section 81 of the Tamil Nadu Co-operative Societies Act, 1973, for certain irregularities alleged to have been committed by the petitioner. He was also suspended by the Joint Director of Agriculture on 12/8/2010 for the alleged mismanagement. 3. It is the grievance of the petitioner that certain documents for effective defence was not furnished to him and therefore, he has filed W.P.21598 of 2010 and by an order dated 22/9/2010, this Court directed the petitioner to make a representation before the Enquiry Officer. When the documents required by him were not furnished, he also made an application https://hcservices.ecourts.gov.in/hcservices/ 2 under the Right to Information Act. By an order dated 30/11/2010, The Deputy Registrar, Agriculture Engineering Service Department of Agriculture, Chepauk, Chennai 600 005, the second respondent herein informed the petitioner that the information sought for could not be disclosed under Section 8 (1) (h) of the Right to Information Act, 2005. In these circumstances, when the Enquiry Officer, directed the petitioner to appear for an enquiry on 21/2/2011, the petitioner made a representation to the Enquiry Officer to adjourn the enquiry, on the ground that the directions issued in W.P.No.26002 of 2010 dated 15/11/2010 had not been complied with. 4. In the meanwhile, on 17/5/2011, the petitioner was arrested by the Inspector of Police, CCIW CBCID, Karur and remanded to judicial custody. Thereafter, he was enlarged on bail and released on 7/6/2011. The petitioner was under the bonafide belief that his representation dated 15/10/2010 would be considered and that the information sought for by the petitioner would be furnished to facilitate him, to disprove the charges and submit his explanation. 5. At this juncture, the petitioner received a show cause notice dated 15/7/2011 along with the copy of the enquiry report dated 18/3/2011 passed by the third respondent. On the above said pleadings, Mr.K.S.Sankhar Murali, counsel appearing for the petitioner assailing the correctness of the report, submitted that the Deputy Registrar, Agriculture Engineering Service Department of Agriculture, Chepauk, Chennai 600 005 ought not to have drawn up the enquiry report, without giving him an opportunity to effectively defend the case. It is his further contention that when the directions issued in W.P.No.26002 of 2010 dated 15/11/2010 has not been complied with, the Enquiry Officer has failed to comply with the directions of this Court in letter and spirit and thus, a fair and reasonable opportunity has been denied to the writ petitioner to put forth his defence in the enquiry ordered under Section 81 of the Tamil Nadu Co- operative Societies Act, 1973. 6. It is his further submission that the respondents 1 and 2 ought to have furnished the information sought for by the writ petitioner which are not exempted under Right to Information Act. 7. Heard the learned counsel appearing for the petitioner and perused the materials available on record. 8. In W.P.No.21598 of 2010, the petitioner has sought for a writ of certiorari to quash the notice issued by the Senior Co-operative Sub- Registrar/Enquiry Officer, Agriculture Engineering Services Department of Agriculture, Chepauk, Chennai 600 005 issued under Section 81 of the Co- operative Societies Act. Rejecting the said prayer, this Court by an order dated 22/9/2010 has given liberty to the petitioner to make a representation before the Enquiry Officer as to the available records to prove his innocence, while appearing before the Enquiry Officer. An application dated 1/11/2010 has been made under the Right to Information Act for certain documents. The said request has been rejected by the Deputy Registrar, Agriculture Engineering Service Department of Agriculture, Chepauk, Chennai 600 005 vide R.C.No.149903/2010 AES4 dated 30/11/2010 stating that the information sought for, cannot be disclosed under Section 8 (4) of the Right to Information Act, 2005. https://hcservices.ecourts.gov.in/hcservices/ 3 9. The contention of the learned counsel for the petitioner that the respondents 1 and 2 ought to have furnished the documents sought for and that they are not exempted under the Right to Information Act, cannot be adjudicated in this writ petition for the reason that, there is an effective and alternative remedy of an appeal provided under the Right to Information Act, 2005. No materials are filed before this Court to show that the petitioner has filed any appeal. 10. Pleadings further disclose that though the petitioner was directed to appear on many occasions, he did not appear and on 21/2/2011, an ultimatum has been given to the petitioner to appear before the Enquiry Officer and since he has not appeared before the Enquiry Officer, on consideration of the records, the Enquiry Officer has come to a prima facie conclusion under Section 81 of the Tamil Nadu Co-operative Societies Act. 11. The materials available on record would further disclose that the petitioner has once again made a representation dated 31/3/2011 under the Right to Information Act and a reply in R.C.No.149903/2010 AES 4 dated 30/11/2010 has been given to the writ petitioner, stating that the information sought for cannot be disclosed under Section 8 (4) of the Right to Information Act, 2005. 12. This Court has already considered the above said aspect of non-furnishing of certain documents in the forthgoing paragraphs and hence it is not necessary to advert to the same. 13. Pleadings and materials on record would further disclose that pursuant to the enquiry report drawn up under Section 81 of the Tamil Nadu Co-operative Societies Act and proceedings in R.C.No.80681/11 Agriculture Department – 4 dated 8/7/2011 has been issued to the writ petitioner, calling upon him to explain as to why surcharge proceedings should not be initiated under Section 87 of the Act. When the proceedings under Section 87 of the Act has already been initiated calling upon the petitioner to offer his explanation, the writ petition to quash the order dated 18/3/2011 on the file of the third respondent cannot be entertained. The course open to the petitioner is to submit his explanation to the show cause notice issued under Section 81 of the Co-operative Societies Act and the correctness of the Enquiry report can always be agitated before the Deputy Registrar, Agriculture Engineering Service, Department of Agriculture the second respondent. If there is any violation of principles of natural justice in not furnishing certain documents, so as to enable the petitioner to effectively defend the proceedings under Section 81 of the Act can also be ventilated before the second respondent. As the proceedings under Section 87 of the Act had already been commenced, this Court is not inclined to set aside the report of the Enquiry Officer, to conduct an enquiry under Section 81 of the Tamil Nadu Co-operative Societies Act, 1973. As the Enquiry Officer/Deputy Registrar, Agriculture Engineering Service Department of Agriculture, Chepauk, Chennai 600 005, the third respondent herein is competent and acted as per the directions under Section 81 of the Tamil Nadu Co-operative Societies Act, the report cannot be interfered at this juncture by this Court. https://hcservices.ecourts.gov.in/hcservices/ 4 14. In the result, the writ petition stands dismissed. No costs. Consequently, the connected Miscellaneous Petition is also dismissed. SD DEPUTY REGISTRAR ( WRITS ) /TRUE COPY/ ASST REGISTRAR mvs. To 1. The Commissioner of Agriculture/ The Registrar, Agriculture Engineering Service Department of Agriculture, Chepauk, Chennai 5. 2. The Deputy Registrar, Agriculture Engineering Service, Department of Agriculture Chepauk, Chennai 600 005. 3. The Senior Co-operative Sub-Registrar/Enquiry Officer Agriculture Engineering Service Department of Agriculture, Chepauk, Chennai 5. 1CC TO THE SPL. GOVT PLEADER SR: 25911: DM:2011:AUGUST:05:: W.P.(MD) No.8447 of 2011 3/8/2011 4P:5C:: https://hcservices.ecourts.gov.in/hcservices/