HON'BLE MR JUSTICE GHULAM MOHAMMED WRIT PETITION NO. 3155 OF 2000 Between: Kunche Venkateswara Rao S/o late Narayana Murthy ………….Petitioner AND A.P. Cooperative Tribunal, Vijayawada and two others. ………….Respondents ORDER: This Writ Petition has been filed in the nature of writ of Certiorari calling for the records relating to order dated 23.11.1999 passed by the first respondent in O.A.No. 9 of 1999, wherein the Tribunal confirmed the orders of the second respondent dated 23.11.1999 passed in R.C.No. 1844/96-D, and quash the same as illegal. Brief facts of the case are that the petitioner herein is the President of the third respondent- Primary Agricultural Cooperative Society, Nayakampalli, (for short ‘the Society’) for the period from the year 1992-95. It is stated that during the course of final audit of the Society, the Senior Inspector/Auditor submitted a special report to the second respondent alleging misappropriation and mis-utilisation of funds in the Society and recommended for recovery of a sum of Rs. 26,840/- with interest @ 18% per annum from the petitioner herein and the second respondent herein passed an order dated 21.11.1998 asking the petitioner to repay the amount. Aggrieved by the same, the petitioner herein preferred an appeal before the first respondent and the first respondent confirmed the order passed by the second respondent. Aggrieved by the same, the present Writ Petition is filed. The learned counsel appearing for the petitioner submits that two irregularities viz., construction of iron pandal at the office of the society and the purchase of cash counter, cannot be proceeded with against the petitioner under Section 60 of the A.P. Cooperative Societies Act, 1964. On the other hand, the learned Government Pleader for Cooperative Societies appearing for the respondents submits that the order passed by the Tribunal is reasonable and there are no grounds to interfere with the order. Heard the learned counsel appearing for both sides and also perused the entire material made available on record. Out of four irregularities as alleged, two irregularities committed by the petitioner are for the welfare of the society. He spent amount for construction of pandal and cash counter. The main grievance of the respondent is that when the Society is running under losses the petitioner wasted the funds of the society by constructing the padal and cash counter. Under Section 60 of the Act, the petitioner is given an opportunity of making his representation. But in this Case the petitioner is deprived of giving an opportunity of making representation. For ready reference, Section 60 of the Act reads as under: “60. Surcharge: (1) Notwithstanding anything contained in any other law for the time being in force where in the course of an audit under Section 50 or an inquiry under Section 51 or an inspection under Section 52 or Section 53, or the winding up of a society, it appears that any person who is or was entrusted with the organisation, affairs or management of the society or any past or present officer or servant of the society has misappropriated or fraudulently retained any money or other property or has been guilty of breach of trust in relation to the society or has caused any deficiency in the assets of the society by breach of trust or willful negligence or has made any payment contrary to the provisions of this Act, the rules or the bye-laws , the Registrar himself, or nay person specially authorised by him in this behalf, of his own motion or on the application of the committee, liquidator or ay creditor or contributor may inquire into the conduct of such person or officer or servant and make an order requiring him to repay or restore the money or property or any part thereof with interest at such rate as the Registrar or the person authorised as aforesaid thinks just or to contribute such sum to the assets of the society by way of compensation in respect of the misappropriation, misapplication of funds, fraudulent retention, breach of trust, or wilful negligence as the Registrar or the person authorised as aforesaid thinks just: Provided that no order shall be passed against any person referred to in this sub-section unless the person concerned has been given an opportunity of making his representation. (2) Any sum ordered under this section to be repaid to a society or recovered as a contribution to its assets may be recovered on a requisition being made in this behalf by the Registrar to the Collector in the same manner as arrears of land revenue. (3) This section shall apply notwithstanding that such person or officer or servant may have incurred criminal liability by his act.” The learned counsel appearing for the petitioner also brought to the notice of this Court a decision of a Division Bench reported in CHALLA SANYASINAIDU VS. DEPUTY REGISTRAR OF COOPERATIVE SOCIETIES, SRIKAKULAM[1], wherein this Court observed as under: “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.” Plain reading of the above judgment it is evident that the delinquent should be given an opportunity of explaining his stand before final order is passed. In view of above, a seen form the record, in this particular case, before passing the order dated 21.11.1998, the second respondent either given any opportunity to the petitioner or ordered any inquiry into the matter. Even the Tribunal also without giving any opportunity to the petitioner confirmed the order passed by the second respondent. Therefore, the order passed by the Tribunal dated 23.11.1999 in O.A.No. 9 of 1999 confirming the order of the second respondent dated 21.11.1998 is liable to be set aside. Accordingly, the Writ Petition is allowed and the order passed by the second respondent dated 21.11.1998 and also the order dated 23.11.1999 passed by the Tribunal in O.A.No. 9 of 1999 are set aside. There shall be no order as to costs. ________________________ GHULAM MOHAMMED, J DATE: 02.12.2010 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies. a [1] 1998 (1) ALT 482 (D.B)