IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.10.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.1412 of 2001 N.Sekar .. Petitioner vs. 1. The Principal District Judge Cum Co-operative Tribunal Thanjavur 2. The Deputy Registrar of Co-operative Societies Railway Station Road Kumbakonam 3. Z.827, Ammapettai Primary Agricultural Co-op. Bank Limited represented by its Secretary Durga Line, Ammapet Papanasam Taluk, Kumbakonam .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records of the first respondent relating to the award passed in C.M.A.No.38 of 1998, dated 30.8.2000 by upholding the surcharge and recovery proceedings initiated under Section 87 of TNCS Act, 1983 by the second respondent in S.C.No.4 of 1995 dated 29.10.1996 directing the petitioner to pay a sum of Rs.57,720/- only with 19% interest from the date of the loss caused to the Bank and quash the same. For petitioner : Mr.E.Raja For Respondents : Mr.T.Seenivasan Additional Government Pleader for R1 and R2 Mr.D.Srinivasan for R3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard the learned counsel appearing for the parties concerned. The brief facts of the case are as follows: 2. The petitioner had been appointed as a clerk in the third respondent Bank. While so, he was kept under suspension, along with some other employees of the third respondent Bank, based on the charge of creating false documents, with regard to the jewels pledged in the third respondent Bank and for causing a loss of Rs.67,000/- to the third respondent Bank. 3. It had been alleged that the petitioner had committed theft of the jewels pledged with the third respondent Bank, by replacing the original jewels with jewels with gold covering thereby, causing a loss of Rs.2,30,880/-. Penal action had been initiated against the petitioner and three others on the basis of the enquiry report submitted, under Section 81 of the Tamil Nadu Co-operative Societies Act, 1983, (hereinafter referred to as "the Act"). 4. It has also been stated that when the Secretary of the third respondent Bank was on leave, the second key of the jewel locker with No.3205 had been handed over to the petitioner during the period from 5.6.1993 to 6.8.1993. The Secretary, P.Murugesan, had the key of the jewel locker and the locker was under the double lock system. The petitioner had told the authorities that he had no personal knowledge about the quality and standard of gold used for making the jewels pledged with the third respondent Bank and that he had nothing to do with the transactions. 5. It has also been stated that by a plain reading of the surcharge order passed by the second respondent in S.C.No.4 of 1995, dated 29.10.1996, it would be clear that the petitioner was in no way concerned with the transactions, except for the fact that the second key of the jewel locker was with him between 5.6.1993 and 6.8.1993. 6. The petitioner has further stated that the surcharge proceedings, under Section 87 of the Act had been initiated on the basis of the report submitted, under Section 81 of the Act. The petitioner had not been informed about the enquiry, under Section 81 of the Act and he was not allowed to participate therein. The second respondent had not conducted the enquiry, properly, even though the petitioner had attended all the hearings before him. The second respondent, had not recorded the statements of the petitioner nor had he accepted the documentary evidence filed by the petitioner in support of his case. The second respondent had passed the impugned proceedings, under Section 87 of the Act, without conducting a full- https://hcservices.ecourts.gov.in/hcservices/ fledged enquiry and without furnishing the report of the enquiry conducted under Section 81 of the Act. 7. It has been further stated that the criminal proceedings initiated against the petitioner had ended in his favour, as sufficient evidence was not available to prove the charges against him. Aggrieved by the order of the second respondent, issued under Section 87 of the Act, the petitioner had preferred an appeal before the first respondent Tribunal, in C.M.A.No.38 of 1998. The first respondent Tribunal had dismissed the appeal filed by the petitioner, without considering the merits of the case. 8. In the counter affidavit filed on behalf of the second respondent, it has been stated that the petitioner was working as a clerk on daily wages at the time of the passing of the surcharge order. The petitioner was jointly responsible, along with three other persons, as the petitioner was having one of the keys for the jewel loan locker. Spurious gold jewels had been kept in the locker, with the knowledge of the petitioner, replacing the original gold jewels. The Jewel Locker could not have been opened without using the jewel locker key. The petitioner had conspired with the others in creating loss to the assets of the Bank. 9. It has also been stated that the surcharge order had been passed only on the findings of the enquiry report conducted in accordance with Section 81 of the Act. The petitioner had been issued a show cause notice and the necessary summons before the passing of the said surcharge order. The petitioner had deposed before the second respondent. After following all the legal procedures, the surcharge order had been passed by the second respondent, under Section 87 of the Act. The petitioner, at the time of the deposition before the second respondent, had not asked for the enquiry report. It has been proved that the petitioner was incharge of the second key even after an inspection had been conducted by the Field Officer, as admitted in the affidavit filed by the petitioner. The petitioner has been holding the jewel locker key till 6.9.1993. Since the jewel locker could be opened only by using both the keys as it was under a double lock system, the petitioner is also held liable for the loss caused to the assets of the third respondent Bank. Sufficient opportunity has been given to the petitioner, during the enquiry, to put forth his case and to defend himself. The said fact has been accepted by the petitioner in his deposition. The second respondent had passed the surcharge order following all the procedures prescribed by the relevant provisions of the Act and the Rules framed thereunder. 10. In the counter affidavit filed on behalf of the third respondent, it has been stated that the petitioner was responsible for the loss of the gold jewels kept in the jewel loan locker of the https://hcservices.ecourts.gov.in/hcservices/ third respondent Bank, along with the three other persons. The petitioner had used the key of the locker, which was with him during the relevant period. The petitioner is not correct in stating that the enquiry conducted, under Section 81 of the Act, was arbitrary and illegal. The petitioner had participated in the enquiry and he had deposed before the enquiry officer, on 3.11.1994. Apart from the disciplinary action initiated against the petitioner, criminal proceedings had also been initiated against him for the loss caused to the assets of the third respondent Bank. The petitioner, along with the others, who were found to be responsible for the illegal acts, had been terminated from service from 31.1.1997. Based on the enquiry report, the second respondent had issued the surcharge order, under Section 87 of the Act. The criminal proceedings initiated against the petitioner is pending on the file of the Judicial Magistrate, Papanasam, in C.C.No.102 of 1998. During the course of the surcharge proceedings, the petitioner had deposed before the second respondent that he was given sufficient opportunity to put forth his case. From the evidence available, it is clear that the petitioner was incharge of the second key of the jewel locker even after the inspection conducted by the Field Officer. Since the petitioner was having the key of the locker at the relevant point of time, he was held responsible for loss of the gold jewels. 11. The learned counsel appearing for the petitioner had submitted that the petitioner cannot be held responsible for the loss of the jewels kept in the jewel loan locker, since he had only one key of the locker, which was under the double lock system. The petitioner was incharge of the locker key only between 5.6.1993 and 6.9.1993. On 3.8.1993, 4.8.1993 and 5.8.1993, an inspection had been done by the Field Manager of the Supervising Bank, namely, the Central Co-operative Bank, Kumbakonam. During the said inspection, all the jewels, which were with the third respondent Bank, had been physically verified with the aid of an external appraiser. From 7.9.1993, the second key of the locker was in the possession of one Sukumaran. The first key of the jewel locker was in the custody of the Secretary, namely, Murugesan. Therefore, the petitioner cannot be held liable for the loss of the jewels kept in the jewel locker. 12. It has been further stated that the enquiry conducted, under Section 81 of the Act, is not proper as no opportunity had been given to the petitioner to defend his case. Further, the impugned surcharge order had been passed without giving the petitioner a copy of the enquiry report. The enquiry conducted, under Section 81 of the Act, and the surcharge proceedings issued by the second respondent, under Section 87 of the Act, are arbitrary, illegal and void. No materials were available to fix the responsibility on the petitioner for the loss of the gold jewels. https://hcservices.ecourts.gov.in/hcservices/ 13. The learned counsel appearing for the petitioner had also submitted that no notice had been given to the petitioner before the surcharge proceedings had been initiated against him. The enquiry report, the depositions and the other records connected with the enquiry had not been given to the petitioner, as prescribed by Rules 104 and 173 of the Tamil Nadu Cooperative Societies Rules, 1988. Further, the order passed by the first respondent Tribunal does not say anything about the non-furnishing of the enquiry report. In such circumstances, the impugned surcharge order, dated 29.10.1996, passed by the second respondent and the award of the first respondent, dated 30.8.2000, are arbitrary and void. 14. On the contrary, the learned counsel appearing for the respondents had submitted that the enquiry conducted under Section 81 of the Act was fair and proper and the petitioner had participated in the enquiry without any protest. He had also deposed before the enquiry officer and had submitted that he was given sufficient opportunity during the enquiry. Since the petitioner was found to be responsible for the loss caused to the assets of the third respondent, surcharge proceedings had been issued by the second respondent, under Section 87 of the Act. 15. It has also been submitted that no written request had been received from the petitioner by the second respondent asking for the enquiry report or for the other documents considered by the enquiry officer. The first respondent Tribunal had passed the order in the appeal filed by the petitioner confirming the surcharge order passed by the second respondent. The first respondent Tribunal had considered all the relevant materials and the contentions raised on behalf of the petitioner before passing the award, dated 30.8.2000, in C.M.A.No.38 of 1998. The criminal case relating to the matter is pending before the Judicial Magistrate, Papanasam, in C.C.No.102 of 1998. Based on the departmental enquiry conducted against the petitioner, he has been terminated from service, on 31.1.1997. 16. The learned counsel appearing for the respondents had relied on the deposition, dated 29.10.1996, submitted by the petitioner before the second respondent stating that he was given sufficient opportunity to put forth his case during the enquiry. 17. The learned counsel appearing for the petitioner had relied on the decision of the Supreme Court in UNION OF INDIA Vs. MOHD. RAMZAN KHAN (AIR 1991 SC 471), wherein it has been held that a disciplinary enquiry is quasi-judicial in nature and therefore, it attracts the principles of natural justice. In a quasi-judicial matter, if the delinquent is being deprived of the knowledge of the material against him rules of natural justice would be violated. https://hcservices.ecourts.gov.in/hcservices/ 18. The learned counsel appearing for the petitioner had also relied on the decision of this Court in ARIGNAR ANNA WEAVERS CO-OP. SOCIETY LTD., Vs. STATE OF T.N. (AIR 1999 MADRAS 254), wherein, it has been held that from the provisions of Rule 104(9) and 173, it is clear that there is a duty cast on the Registrar to inform the affected person and also the Society about the result of the inquiry, with necessary details. If the authorities do not comply with the provisions of Section 82 and the Rules, they cannot initiate action under Section 88(1)(a)(i) of the Act for supersession of Managing Body of a Co-operative Society. 19. The learned counsel appearing for the petitioner had also relied on the decision of this Court in SAMBANDAM Vs. THE DEPUTY REGISTRAR (CREDIT) CO-OP. SOCIETIES, MYLAPORE, MADRAS (1999 III MLJ 310), wherein, it has been held that if surcharge proceedings are initiated, under Section 71 of the Tamil Nadu Co-operative Societies Act, 1961, the same has to be done in accordance with the said provision. If the proceedings are initiated, under Section 71 of the Tamil Nadu Co-operative Societies Act, 1961, the person concerned must be given an opportunity to putforth his claim. In the light of the second proviso to Section 71(1), in the absence of proof of furnishing of a copy of the enquiry report to the petitioner, further action taken by the first respondent, in pursuance of the enquiry report, cannot be sustained due to the violation of the statutory provisions and the principles of natural justice. 20. Per contra, the learned counsel appearing for the respondents had submitted that the decisions relied upon by the learned counsel appearing for the petitioner are not applicable to the facts and circumstances of the present case. It has been further stated that the petitioner had submitted in his deposition before the second respondent that he was given sufficient opportunity during the enquiry conducted under Section 81 of the Act. Further, there is no provision, under the Tamil Nadu Co-operative Societies Rules, 1983, making it mandatory for the enquiry officer to furnish a copy of the enquiry report to the delinquent employee. The petitioner had been given sufficient opportunity to putforth his case during the enquiry. Further, the petitioner was permitted to peruse all the relevant documents relied on by the enquiry officer during the enquiry proceedings. Since all the principles of natural justice were violated during the enquiry proceedings and before the passing of the surcharge order, under Section 87 of the Act, the contentions of the learned counsel appearing for the petitioner are not acceptable. 21. In view of the submissions made on behalf of the petitioner as well as the respondents and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to set aside the impugned order of the second respondent, dated 29.10.1996, in S.C.No.4 of 1995 and the https://hcservices.ecourts.gov.in/hcservices/ award of the first respondent passed in C.M.A.No.38 of 1998. There is nothing on record to show that the petitioner was not given sufficient opportunity to putforth his case during the enquiry proceedings initiated under Section 81 of the Act. Further, from the deposition submitted by the petitioner before the enquiry officer, on 29.10.1996, it is obvious that the petitioner was given sufficient opportunity to participate in the enquiry proceedings. 22. Further, the petitioner has not shown that he had asked for the copy of the enquiry proceedings, as claimed by him. The petitioner has not been in a position to point out the relevant provision of law, which makes it mandatory for the enquiry officer to furnish a copy of the enquiry report to the delinquent employee before initiating the surcharge proceedings under Section 87 of the Act. Rules 104 and 173 of the Tamil Nadu Cooperative Societies Rules, 1988, did not provide for the furnishing of a copy of the enquiry report. Since the petitioner was found to have been responsible, along with the some other persons, for the loss of gold jewels deposited in the jewel loan locker of the third respondent Bank, surcharge proceedings had been initiated against him, under Section 87 of the Act. The surcharge proceedings initiated against the petitioner was based on the findings of the enquiry report initiated in accordance with Section 81 of the Act. Further, the appeal filed by the petitioner against the surcharge proceedings before the first respondent Tribunal has also been dismissed by the award, dated 30.8.2000, confirming the order of the second respondent, dated 29.10.1996, made in S.C.No.4 of 1995. Since the first respondent Tribunal had passed the award, dated 30.8.2000, considering all the relevant materials available before it and by giving sufficient reasons, confirming the order of the second respondent, this Court is not inclined to grant the reliefs, as prayed for by the petitioner, in the present writ petition. Hence, the writ petition stands dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. lan https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Principal District Judge Cum Co-operative Tribunal Thanjavur 2. The Deputy Registrar of Co-operative Societies Railway Station Road Kumbakonam 3. The Secretary Z.827, Ammapettai Primary Agricultural Co-op. Bank Limited Durga Line, Ammapet Papanasam Taluk, Kumbakonam + 1 CC to Mr.E.Raja, Advocate, SR.No.58448 + 1 CC to the Government Pleader, SR.No.58956 + 1 CC to Mr.D.Sreenivasan,Advocate, SR.No. 58492 W.P.No.1412 of 2001 KU [CO] RB 3/11/2008 https://hcservices.ecourts.gov.in/hcservices/