IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8032 of 2003 MATHURA PRASAD CHOUDHARY s/o late Chhathu Choudhary,at present posted as Branch Manager of Sakara Branch of Muzaffarpur Central Co-operative Bank Limited, Muzaffarpur. Versus 1. THE STATE OF BIHAR 2. Minister,Co-operation, Govt.of Registar,Bihar,Patna. 3. Registrar ,Co-operative Societies,Bihar,Patna. 4. Addl. Registrar,Co-operativeSocieties,Bihar,Patna. 5. Jt.Registrar,Co-operative Societies,Tirhut Division,Muzaffarpur. 6. Muzaffarpur Central Co-operative Bank Limited, Muzaffarpur through its Managing Director. 7. Managing Director,Muzaffapur Central Co-operative Bank Ltd.,Muzaffarpur. 8. Administrator,Muzaffarpur Central Co- operativeBankLtd.,Muzaffarpur. 9. District Audit Officer,Co-operative Societies Muzaffarpur. ----------- For the Petitioner : M/s Ishwari Singh and Kiran Kumari For the State : Mrs.Alka Verma,A.C to AAG IX For respondent nos. 6 and 7 : Mr.Nitiranjan Jha and Mr. Rakesh Kumar Jha. 8 02.07.2009 The petitioner challenges the order passed in a departmental proceeding by which he has been imposed surcharge in terms of Section 40 of the Bihar Co-operative Societies Act. The initial order was affirmed in revision and was affirmed by the Minister Incharge in appeal. A counter affidavit has been filed and pleadings are complete. The petitioner was a Manager of Gaighat Branch of Muzaffarpur Central Co-operative Bank, Muzaffarpur. It appears that in course of audit, certain discrepancies were found. The Auditor submitted his report. Without the petitioner being confronted with the said report or without the petitioner being asked to comment upon the said report, taking the said report to be sacrosanct truth , surcharge 2 proceeding was initiated against the petitioner in terms of Section 40 of the Co-operative Societies Act. The charge is contained in Annexure 1.The charge was specific. It is stated that as per audit report, the said Branch has received Rs. 1.50 lakhs for being distributed as loan to the various Primary Agriculture Credit Co- operative Societies(PACS). As against this the petitioner had withdrawn about Rs. 25 lakhs from various Saving Bank Accounts and distributed them as loan wrongly to persons who were ineligible to the same because most of them had not repaid their earliest loan either fully or at least to the extent of 40% . Thus causing loss to the Bank. The petitioner responded by clearly stating that the audit report was wrong. Petitioner did not violate any direction. Petitioner did not withdraw any amount from Savings Account to distribute as loan. It may be noted that there were several other officers who were also proceeded on similar charges. The surcharge proceeding was before the Joint Registrar. The Joint Registrar ,while exonerating all other persons, found petitioner guilty and liable to pay surcharge by his order dated 11.12.1995 (Annexure 3). A reference to that order would show that he has found that the petitioner diverted money from Savings Account to distribution as loan to persons who were ineligible and as such in the surcharge proceeding he ordered for recovery of the said amount of about Rs.25 lakhs along with interest from the petitioner. A reference to the order would show that no material has been found to substantiate the charge except so called audit report. No Bank 3 statements or Bank Accounts have at all been referred to . Petitioner then preferred remedy by way of revision , as provided under the Act , before the Registrar, Co-operative Societies. The Registrar having admitted the revision remitted the same for disposal to Additional Registrar, Co-operative Societies ,whose order dated 31.12.1998 is to be found in Annexure 4. This revisional order clearly notices all the contentions of the petitioner. It clearly notices the contention of the petitioner that the audit report is malafide and wrong, not supported by any record. He requested the authority to call for the Bank records and examine the same, as was done in the case of other persons, who were proceeded together with the petitioner. Petitioner then gives figures as to how the Bank had received over Rs.25 lakhs for distributing as loan, which falsify the stand that only Rs.1.50 lakhs were received for distribution as loan ,as against which petitioner allegedly withdrew Rs.25 lakhs from Savings Accounts of various Co-operative to distribution as loan . Petitioner specifically referred to Bank Accounts stating that those accounts would show that not a single paisa was withdrawn from Savings Accounts of any constituent to be disbursed as loan. These contentions are specifically noted in the revisional order dated 31.11.1998. Notwithstanding the said, revisional authority again merely referring to the order of the Additional Registrar and holding it to be sacrosanct without any further comprehension dismissed the revision application. Thus affirming the revisional order. Petitioner then preferred an appeal before the Minister Incharge Co-operative. The order of Minister Incharge is dated 14.7.2003 4 (Annexure 5).A reference to the order of the Minister Incharge ,which is a very laconic order finds the petitioner guilty and liable to pay surcharge but on a totally different ground. It is rightly submitted that the original charge was that as against Rs.1.50 given to the Branch as loan, petitioner being the Branch Manager had withdrawn from the Savings Accounts of constituent Rs.25 lakhs and given it as loan to persons who were ineligible for the same, causing loss to the Bank. The Minister, however, does not find this charge substantiated because he finds that though the money i.e about Rs.25 lakhs was available to the Bank, it was , in fact, available for being given for fertilizer loan .Instead of giving loan for fertilizer business, petitioner had given short term crop loan. Minister also notices that the entire loan amount stood fully recovered along with interest that was due on crop loan but he concluded the surcharge proceeding holding that instead of giving as loan for fertilizer business which could have got the Co-operative Bank interest at the rate of 18% .Petitioner gave crop loan, which got the Bank interest at the rate of 10% and thus the Bank suffered a loss of 8% interest on the said amount of loan given of about Rs.25 lakhs. Thus he dismisses the appeal making petitioner liable to pay the differential interest on the said amount as above. In view of the facts, as noted above, in my view,it has rightly submitted by the petitioner that the charge for which the petitioner was proceeded against was total given up at the appellate stage and what petitioner was found guilty of was of a conduct for 5 which he has not been charged, much less controverted with. In other words, it is rightly submitted that the charge, which was framed could not be established .What was established was never charged. In my view, the submission is correct and that itself rendered the entire surcharge proceeding as not maintainable. It is well established that in any such proceeding a charge must be framed and proved and only then a delinquent can be held guilty. He can never be held guilty on a charge that was never framed nor even proved as is in the present case. In that view of the matter, in view of the facts ,as noted above, and in view of the legal position, as noted above, I have no option but to set the impugned orders as contained in Annexures 3,4 and 5,being the original order of the Joint Registrar, the revisional order of Additional Registrar and the appellate order of the Minister in appeal in the Department of Co-operative. In the result, the writ petition is allowed. SINGH (Navaniti Prasad Singh, J.)