IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRD DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.20405 OF 2000 Between: Rendla Indrasena Reddy ..... PETITIONER AND The Primary Agricultural Cooperative Society, Pedda Pendyala Village, Warangal District and another .....RESPONDENTS The Court made the following : THE HON'BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.20405 OF 2000 ORDER: Assailing the order made in C.T.A.No.467/96 dated 29.06.2000 on the file of Cooperative Tribunal, Hyderabad, which confirmed the orders of the Deputy Registrar of Cooperative Societies, Warangal - 2nd respondent herein made in Rc.No.2437/83-D dated 23.11.1990, this writ petition is filed. The petitioner was the President of the Primary Agricultural Cooperative Society, Pedda Pendyala Village, Warangal District (for brevity ‘Society’) from 1977-78 to 1980-81. An enquiry was conducted into the affairs of the Society and during the course of enquiry the petitioner was found to have committed certain irregularities. It is alleged that certain old loans were converted and fresh loans were borrowed and in the process several lapses were committed, which were found to be detrimental to the Society. An enquiry report was submitted in which it was found that loan amounts were drawn twice in the name of the same person under different cheques and some benami loans were also granted to fictitious members. Based on the enquiry report, which was submitted under Section 51 of the Andhra Pradesh Cooperative Societies Act, 1964 (for short, ‘the Act’), surcharge proceedings were initiated under Section 60 of the Act against the petitioner. It may be noted that in the present writ petition the question whether the petitioner is guilty of the irregularities or other commissions and omissions alleged against him, being questions of fact, cannot be gone into. It may however be noted that surcharge proceedings were passed ex parte. Suffice it to state that a show cause notice was issued to the petitioner for his appearance on 04.10.1990. The petitioner received the said notice and engaged an advocate to defend his case. The counsel appeared before the 2nd respondent on the appointed date and sought for adjournment, which was conceded and the matter was posted to 16.10.1990 and further adjourned to 07.11.1990. On 07.11.1990 it appears that the counsel was not present, however the matter was adjourned to 23.11.1990 and the petitioner was put on notice. As neither the petitioner nor the counsel was present on 23.11.1990, the petitioner was set ex parte and orders were passed, in which the petitioner was found liable to pay an amount of Rs.1,20,425/-, inclusive of interest up to 30.11.1990 and with future interest at 18% per annum till the date of realization. Aggrieved by the aforesaid orders, passed ex parte, the petitioner availed the remedy of appeal in C.T.A.No.467 of 1996. The appellate Tribunal, on the ground that the petitioner did not participate, despite opportunity given to him, in the surcharge proceedings before the 2nd respondent, declined to interfere with the orders impugned therein. The petitioner since aggrieved by the aforesaid orders has approached this Court. Heard both parties. The learned counsel for the petitioner would contend that the petitioner was not afforded adequate opportunity to defend his case before the 2nd respondent. He would submit that the alleged irregularities relate to the period from 1977 to 1980 in respect of which the alleged enquiry was initiated long thereafter in the year 1990. He would further contend that the 2nd respondent solely relied on the report of the enquiry officer without further examining the matter with reference to the records of the Society. He submitted that the petitioner cannot be held to be guilty for his non-appearance on the schedule day on 23.11.1990. The petitioner was bonafide participating in the proceedings before the 2nd respondent and in fact engaged a counsel. He was in the process of collecting material to defend his case. Since the material was not immediately available to him on account of the long lapse of time from 1980 to 1990, the 2nd respondent ought not to have closed the proceedings. The learned counsel further submitted that the Appellate Tribunal ought to have taken these facts into consideration and in the interest of justice ought to have remanded the matter for fresh consideration to the 2nd respondent. Per contra, the learned Government Pleader would submit that the petitioner was given ample opportunity and he has no bona fides to seek any further relief in the matter. I have considered the matter with reference to the respective submissions. It may be noted that the irregularities, which are alleged to have been committed by the petitioner indisputably relate to the period of 1977 to 1980. The petitioner ceased to be the president of the Society ever since 1980 and the enquiry was initiated long thereafter in the year 1990. It may be noted that there would be insurmountable difficulties for the petitioner to collect information after such long lapse of time to effectively defend his case particularly with reference to the surcharge proceedings under Section 60 of the Act. It may also be further noted that for the first time the enquiry before the 2nd respondent was posted on 04.10.1990 and final orders were passed on 23.11.1990, barely within a month from the date of the first posting. It is true that on three occasions i.e. 04.10.1990, 16.10.1990 and 07.11.1990 the matter was posted for hearing. The surcharge proceedings fastened financial liability on the petitioner and in the view of this Court such a liability can be fastened only after affording reasonable opportunity. In my opinion the petitioner did not have adequate opportunity. In the interest of justice it is appropriate to provide an opportunity to the petitioner and therefore the matter is liable to go back for fresh consideration. Accordingly, the Writ Petition is allowed and the orders impugned are set aside. The matter is remanded to the 2nd respondent for conducting fresh enquiry after notice to the petitioner. There shall be no order as to costs. _______________ NOUSHAD ALI, J 3rd June 2010 Ivd