HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.16955 OF 2009 Dt.24.8.2009 Between: A.Ramulu … Petitioner and 1. The Medak Cooperative Central Bank Ltd at Sangareddy, rep.by its General Manager and two others … Respondents HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.16955 OF 2009 O R D E R: The matter is coming up for admission. Heard Sri M.Venkatram Reddy, the learned counsel representing petitioner. Sri K.Ravinder Reddy, the learned Standing Counsel representing R-1 and the learned Assistant Government Pleader for Co-operation representing R-2 and R-3. The matter came up for admission on 20.8.2009 and on the request made by the learned Asst.Govt.Pleader for Co-operation to get instructions, the matter was adjourned. The learned Asst.Govt.Pleader for Co-operation had placed instructions before this Court. Sri M.Venkatram Reddy, the learned counsel representing petitioner had taken this Court through the order under challenge and would maintain that, without supplying enquiry report, proceeding with the further enquiry is bad in law. The learned counsel placed strong reliance on the decision of the Division Bench of this Court in Challa Sanyasinaidu v Deputy Registrar of Co-operative Society, Srikakulam[1]. While elaborating the submissions, the counsel also placed strong reliance on the decision of the Apex Court in G.M.Tank v State of Gujarat and others[2] and would maintain that in the light of the acquittal recorded in a criminal case it may not be just and proper to proceed further with the enquiry or to inflict any kind of punishment under the departmental enquiry whatsoever. The written instructions are placed before this Court. The writ petition is filed for a writ of Mandamus to set aside the proceedings Rc.No.1898/02-C, dated 5.7.2009 on the file of the 3rd respondent by declaring the same as illegal and consequently direct the respondents to reinstate the petitioner in to service forthwith with all consequential benefits and to pass such other suitable orders. It is stated that the first respondent issued proceedings on 05.7.2009 and on 15.7.2009, a show cause notice was issued by the 1st respondent. On 22.7.2002, in pursuance of the said notice, the petitioner attended before the Sub-Divisional Co-operative Officer. It is also stated that, on 19.9.2008, Judicial First Class Magistrate, Medak recorded acquittal in C.C.No.248 of 2004. In the instructions placed before this Court, it is stated that Judicial First Class Magistrate in C.C.No.248 of 2004 acquitted the petitioner by giving benefit of doubt, since material witnesses were not examined by the prosecution. Further stand had been taken that the mere acquittal of criminal charges and giving benefit of doubt cannot be said to be a bar for the continuation of the proceedings under the A.P.Co-operative Societies Act, 1964. Further it was stated in his letter in Rc.No.1898/2002-C dated 18.8.2009 that the petitioner was requested to go through the enquiry report furnished and further indicate the documents and material the petitioner would like to verify immediately and the petitioner was given a time of 15 days to furnish the reply as regards the documents and material record which the petitioner wish to verify and the next date of hearing will be fixed after the reply is received or 15 days from now. In G.M.Tank v State of Gujarat and others (2) supra it was held that acquittal recorded in a criminal trial on departmental enquiry in criminal proceedings based on same set of facts, charges, evidence and witnesses as well and no evidence against the employee to hold him guilty. In the light of the honourable acquittal recorded by the criminal Court during pendency of proceedings challenging dismissal finding to the contrary recorded in departmental proceedings in such a case, was held to be unjust unfair and oppressive. Further reliance was also placed on the decision of the Division Bench of this Court in Challa Sanyasinaidu v Deputy Registrar of Co- operative Society, Srikakulam (1) supra, wherein at para 10 observed thus: In the course of inspection under Section 52 of the Act, the Registrar may cause the inspection of Books of the Society with a view to find out the irregularities, acts of omission and commission. This enquiry is only administrative in nature, and if the Registrar prima facie is satisfied of the irregularities on the basis of the report of the enquiry Officer, he may initiate surcharge proceedings under Section 60. That report may form the basis for the Registrar to proceed under Section 60 and issue a surcharge order eventually. The person against whom a report is sent under Section 52 has no opportunity to squarely meet the allegations against him at that stage. He is not allowed to cross examine the witnesses from whom statements are recorded implicating his involvement. He cannot also adduce rebuttal evidence. That is not the stage where a demand can be made against him to pay back the sum or liability fastened to him as per the report of the enquiry officer. On the contrary, Section 60 clearly contemplates an opportunity being given to the delinquent by making a representation. In our view, this is the proper occasion where the officer or the servant has to be given an opportunity of explaining his stand and allow him to participate in the enquiry before a final order is passed. This is a valuable right given to the delinquent which cannot be brushed aside in a routine manner. After the show-cause-notice is served and an explanation is called for, an opportunity should be given to the affected person to cross-examine the witnesses examined in the course of enquiry under Section 52 or permit him to examine his witnesses to rebut their evidence. Until this is done the spirit of making a representation, as contemplated under Section 60, cannot be fulfilled. Although Section 60 does not prescribe any particular procedure before passing surcharge order, nonetheless, it is mandatory that principles of natural justice shall be followed in the enquiry. Evidence recorded behind the back of the defaulter cannot be relied upon to fasten the liability on him without giving him an opportunity to cross- examine the witnesses. The Registrar in his surcharge proceedings is a Court whose order can very well form the subject-matter of judicial review under Article 226 of the Constitution of India. Therefore, it is in the fitness of things that an opportunity like supply of copy of enquiry report, statements of witnesses recorded during the said enquiry, and also an opportunity to cross examine those witnesses, or permit him to examine his own witnesses by the delinquent by way of rebuttal should be allowed before an order under Section 60 is passed. Therefore, we respectfully agree with the view taken by the learned Judge in S.Rama Subba Rao v President, Kaikuluru Irrigation and Power Department Sub-Divisional Employees Co- Operative Credit Society Limited (Supra). Even in Co-operative Societies, Vikarabad and others (supra) the learned Judge has rightly observed that the proviso to Section 60 mandates adequate opportunity before passing the order, and the issuance of notice proposing to fix the liability under Section 60 is imperative and as such there is no breach of principles of natural justice. Having said so, the learned Judge went on observing that Section 60 is an immediate and necessary consequence of enquiry and audit and inspection and the enquiry for the second round is considered to be superfluous and the affected person is not prejudicided or disadvantaged as the enquiry is done in anterior proceedings. These later observations of the learned Judge appear to strike a contrary note, and we do not therefore subscribe to the same. However, in the light of what had been specified in Rc.No.1898/2002- C dated 18.8.2009 placed before this Court, this Court is of the considered opinion that the writ petition be disposed of giving opportunity to the petitioner to putforth his grievance for supply of further documents, if any before the 3rd respondent and let the 3rd respondent look into his grievance by furnishing such material and to further fix a date giving him further opportunity to file further explanation, if any, and to further proceed with the enquiry in the light of the decisions referred to supra. The Writ Petition is accordingly disposed of. No order as to costs. _________________ P.S.NARAYANA,J 24th August, 2009. Note: Issue CC in three days. B/o PNV HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.16955 OF 2009 Dt.24.8.2009 [1] 1998(1) ALD 455 (DB) [2] 2006(5) SCC 446