IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22-01-2010 CORAM: THE HON'BLE MR.JUSTICE K.CHANDRU W.P.NOs.14827 to 14829 of 2001 The Administrator, Nadipissai Pulavar K.R.Ramasamy Cooperative Sugar Mills Limited ...Petitioner in all the W.Ps. Vs. 1.The Principal District Judge, Nagapattinam 2. The Joint Registrar/Administrator, M.R.K. Cooperative Sugar Mills Limited, Sethiyathoppu, Cuddalore District, Pin 608 702. 3. The Commissioner for Sugar Department, Tamil Nadu Sugar Department, 474, Anna Salai, Nandanam, Chennai-35. Respondents 1 to 3 in all W.Ps. P.Veerathamizhan ...4th Respondent in W.P.No.14827/2001 R.Rajmohan ...4th Respondent in W.P.No.14828/2001 T.Arulmani ..4th respondent in W.P.nO.14829/2001 Petitions filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records of the decree of the first respondent in CMA.No.22,23 and 24 of 2000 respectively dated 3-4-2001 and to quash the same. For Petitioner in all W.Ps.: Mr.R.Parthiban For Respondents 1 to 3: Mrs.C.K.Vishnupriya Additional Government Pleader For 4th respondent in all W.Ps.:Mr.N.Thiagarajan O R D E R Heard both sides. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner in all the three writ petitions is the Administrator of Nadipissai Pulavar K.R.Ramasamy Cooperative Sugar Mills Limited, Nagapattinam District. Aggrieved by the order made by the Co-operative Tribunal, Nagapattinam (The Principal District Judge, Nagapattinam, the first respondent herein made appeals in CMA.NOS.22,23 and 24 of 2000 dated 3.4.2001, the present writ petitions have been filed. 3.Though interim stay was sought for, this Court dismissed the stay application on the ground that since surcharge proceedings itself was reversed in the order made in the appeals, there is nothing to stay. Since the documents filed before the Tribunal were not filed along with the typed set, this Court directed the Registry to call for the entire original records from the Tribunal which were accordingly called for and circulated for perusal by this Court. This Court has gone through the original records. 4. The contesting respondents viz., 4th respondents in all the three writ petitions were surcharged under Section 87(1) of the Tamil Nadu Cooperative Societies Act(hereinafter referred to as the Act) for their commissions and omissions. Before initiating surcharge proceedings, there was an enquiry conducted under Section 81 of the Act. The copies of the said enquiry report was furnished to the contesting 4th respondents, as evidenced from the letter written by themselves dated 15.9.1999 and even the records relating to the surcharge proceedings were also furnished to them. Notwithstanding these facts, the petitioner, challenging the surcharge proceedings, filed appeals under Section 152 of the Co- operative Societies Act. The first respondent Tribunal took up those appeals as CMA.Nos.22,23 and 24 of 2000. 5. Before the Tribunal, the contesting respondents raised three major issues, as evidenced in the grounds of appeal and as recorded by the Tribunal. Firstly, the surcharge proceedings were barred by limitation, as no order was passed within six months from the date of initiation. Secondly, the petitioners were not given copies of enquiry report under Section 81 of the Act. Thirdly, they were not allowed to be defended by the counsel of their choice. The Tribunal, accepting these contentions, by its final order dated 3.4.2001, allowed all the appeals and set aside the surcharge proceedings. It is against which order, the petitioner, Co- operative Sugar Mills has come up by way of these three writ petitions. 6. Mr.R.Parthiban, learned counsel appearing for the petitioner contended that the Tribunal has committed grave error in putting the bar of limitation which is unsustainable and the decision relied on by the Tribunal is no longer good law. With https://hcservices.ecourts.gov.in/hcservices/ reference to non-furnishing of documents, learned counsel took the Court through a representations made by the contesting respondents themselves, wherein it is a clear admission that they were furnished with copies of enquiry report under Section 81 of the Act. With reference to not allowing them to engage a counsel, that is the matter the Deputy Registrar has to answer. In any event, the contesting respondents have ample opportunity of defending themselves by way of filing their objection statements and it is not as if the surcharge proceedings were bereft of any materials, as it was preceded by the statutory enquiry conducted by the authority. Therefore, he prayed for setting aside the order of the Tribunal. 7. Mr.N.Thiagarajan, learned counsel appearing for the contesting respondents also filed an additional counter affidavit dated 14.12.2009 as well as the written arguments along with the counter affidavit today. 8. Mr.N.Thiagarajan, learned counsel appearing for the contesting respondents brought to the notice of this Court the order of the Tribunal under appeal. It has to be seen whether the Tribunal's order is to be interfered with by this Court. With reference to bar of limitation, the Tribunal has placed reliance upon the Judgment of this Court in T.V.EKAMBARAM VS. THE COOPERATIVE TRIBUNAL-CUM-DISTRICT JUDGE, MADURAI reported in 2000 (2) CTC 659 which cannot be any longer good law. This Court vide Judgment in G.PANNERSELVAM VS. DEPUTY REGISTRAR OF COPERATIVE SOCIETIES, DHARMAPURI reported in (2009) 2 MLJ 901 has held that the order to be passed under Section 87 of the Act is not mandatory and it is recommendatory and on that score no surcharge proceedings can be quashed. The said view taken by the learned Judge was upheld by the Division Bench presided over by the Hon'ble Chief Justice A.K.Ganguly(as he then was) and myself(K.Chandru.J) in A.Balaraman Vs.Deputy Registrar of Cooperative Societies, Cheyyar reported in (2009) 3 MLJ 1032. 9. Therefore, the Tribunal in Paragraph 8 of the said order has set aside the surcharge proceedings on the ground that there was a bar of limitation, cannot be found accepted by this Court and the order is liable to be interfered with, even on a short ground. The Tribunal also in Paragraph 7 held that the report under Section 81 of the Act was not furnished to the contesting respondents. This finding was not based upon any records. On the contrary, the respondents themselves have written in the letter dated 15.9.1999 acknowledging the receipt of the enquiry report. 10. Though Mr.N.Thiagarajan now argues on the basis of his written argument, what was furnished is not a complete report and Part 3 of the enquiry report was not furnished. Neither in the https://hcservices.ecourts.gov.in/hcservices/ letter referred to above nor in the grounds of appeal nor in the original counter affidavit, any such contention has been raised by the contesting respondents. Even otherwise, this Court has held that for completing Section 87 Surcharge Proceedings which is against the very individual is furnished, in the matter of procedure, if further details are required, it is for the affected individual to ask for such a report. 11. In the present case, as could be seen from the endorsement made by the Tribunal, the original records were summoned and they were made available at the time of hearing of the appeal and therefore after having an inspection, the petitioner should have made a specific plea with reference to either erroneous finding or the finding which is contrary to the records. Neither in the ground nor in the order, there is any such comment against the report made under Section 81 of the Act. The Tribunal conveniently recorded that the report itself was not furnished to the parties, which cannot be accepted by this Court. 12. The third contention that the respondents were not permitted to engage a lawyer during the surcharge proceedings, it must be noted that the rules framed under the Tamil nadu Cooperative Societies Act do not provide any specific permission. In the present case, the contesting respondents have not made out a sole grievance that they were handicapped by not allowing to represent through a lawyer. On the other hand, they had filed pleadings and made their statement in the written typed set before the authorities which was rejected by surcharge Officer. 13. A perusal of the entire proceedings clearly show that the loss was caused by one G.Rajendran, who is no more. The proceedings has to be initiated against him and after his death, it should be proceeded against his legal heirs and the contesting respondents should not be clutched with the liability. The contesting respondents failed to take note of the fact that the surcharge officer has fixed the liability both jointly and severally and it is open to the writ petitioner to proceed against all to recover the loss sustained by the society. In the absence of suitable ground being raised before the Tribunal, the attempt by the respondents to file a counter affidavit, additional counter and written arguments is only trying to invent new things which does not reflect either in the memorandum of grounds of appeal. Now in the order, which is impugned in these writ petitions as noted above, the Tribunal has grievously erred in setting aside the surcharge proceedings. https://hcservices.ecourts.gov.in/hcservices/ 14. In the light of the same, the writ petitions stand allowed. There will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar VJY To 1.The Principal District Judge, Nagapattinam 2. The Joint Registrar/Administrator, M.R.K. Cooperative Sugar Mills Limited, Sethiyathoppu, Cuddalore District, Pin 608 702. 3. The Commissioner for Sugar Department, Tamil Nadu Sugar Department, 474, Anna Salai, Nandanam, Chennai-35. 4.The Section Officer, VR Section, High Court,Madras. +1cc to Mr.R.Parthiban, Advocate Sr 4148 +3ccs to Mr.N.Thiagarajan, Advocate Sr 4175 +1cc to Govt. Pleader Sr 4222 KS(CO) km/9.2. W.P.NOs.14827 to 14829 of 2001 https://hcservices.ecourts.gov.in/hcservices/