AI Structured Summary
Not yet generated for this judgment
Judgment
K. Ravichandrabaabu, J.—C.R.P. (NPD) No. 3517 of 2009 is filed against an order made in C.M.A No. 9 of 2005 on the file of the
Principal District Judge (Co-operative Tribunal), Villupuram dismissing the appeal preferred u/s 152 of the Tamil Nadu Co-operative Societies Act
thereby confirming the order of the second respondent made u/s 87 of the Tamil Nadu Co-operative Societies Act. C.R.P. (NPD) No. 3518 of
2009 is filed against an order of attachment made by the second respondent herein, which is confirmed by the appellate Tribunal.
In both these Civil Revision Petitions, the petitioner is one and the same. As the Civil Revision Petition in C.R.P. (NPD) No. 3517 of 2009 is
filed challenging the surcharge proceedings, the same is to be considered first as the second C.R.P. arises out of a consequential proceedings, viz.,
the attachment order.
The petitioner was the President of the first respondent Co-operative Bank during the period from October 1996 to 24th May 2001. The
elected Board was abolished by the Government on 24.5.2001. The Deputy Registrar of Co-operative Societies, Tirukovilur ordered an enquiry
u/s 81 of the Tamil Nadu Co-operative Societies Act. Based on the enquiry report, a surcharge notice dated 1.9.2003 was issued to the petitioner
u/s 87(1) of the said Act. He submitted his explanation on 27.8.2004. The Deputy Registrar of Co-operative Societies passed the surcharge order
against the petitioner and 24 others for realising a sum of Rs. 17,37,437.17 with interest. Aggrieved against the said surcharge order, the petitioner
filed C.M.A. No. 9 of 2005 before the Co-operative Tribunal/District Judge. The appeal came to be dismissed on 30.1.2009. Aggrieved against
the same, the present Civil Revision Petition in C.R.P. (NPD) No. 3517 of 2009 was filed.
Mr. M.S. Palaniswamy, learned counsel appearing for the petitioner would submit that no misappropriation has been alleged against the
petitioner and others. The petitioner had paid only the salary to the employees in pursuant to the settlement that was arrived at between the parties
on 17.11.1998 u/s 18(1) of the Industrial Disputes Act. Therefore, such payment in pursuant to 18(1) settlement cannot be considered as a loss to
the society. Consequently, Section 87 of the said Act is not attracted especially when there is no wilful negligence either pleaded or proved against
the petitioner. It is also contended by him that promotions and payment of salary were made by the petitioner only in pursuant to the resolution
passed by the Board. If the settlement is not implemented, it would have attracted penal action u/s 29 of the Industrial Disputes Act. He also
submitted that the payment made to the employees in pursuant to the said settlement was ratified by the Government through proceedings dated
24.9.2010. He further submitted that except item Nos. 3 and 4 of the charges, all other items are payment of salary to the employees. Even in
respect of item No. 3, no wilful negligence was attributed on the part of the petitioner. He further submitted that the appellate authority has not
given any reasons for confirming the order of the original authority. The Tribunal has not given any finding on merits as well as with regard to the
mandatory requirement of wilful negligence to attract Section 87 of the said Act. He also submitted that no action has been taken against the other
employees to recover any money till this date and on the other hand all of them are working in the very same Society. In support of his
submissions, learned counsel relied on the decisions reported in S. Subramanian Vs. 1. The Deputy Registrar of Co-operative Societies (Housing),
Cuddalore, 2. Kumbakonam Town Co-operative Housing Society Limited Z-127 Special officer and Secretary, Kumbakonam and 3. (District
Judge) Special Tribunal for Co-operative cases, Madurai and 2009(4) MLJ 992 (K. Ajay Kumar Gosh and Others Vs. Tribunal for Co-operative
Cases (District Judge of Kanyakumari District) Nagercoil and Another) and an unreported decision of this Court made in C.R.P. (NPD) Nos.
1276 of 2009 and 940 of 2010 dated 24.6.2013.
Per contra, the learned counsel appearing for the first respondent would submit that the entire society was entrusted to the petitioner as the
President. Therefore, he should have acted with much more care and diligence. It is also submitted by him that the petitioner has admitted of having
issued the blank signed cheques to the Secretary. Therefore, he has acted with carelessness. Learned counsel admits that except item Nos. 3 and
4, all other items are regarding payment of salary to the employees only. He relied on the decision reported in A. Umarani Vs. Registrar,
Cooperative Societies and Others, The learned counsel, alternatively, submitted that if this Court comes to a conclusion that the appellate authority
has not given reasons, then the matter may be remitted back to the appellate authority for fresh consideration.
Heard the learned counsel on either side.
Both the counsels filed a comparative chart showing the charges framed against the petitioner and his liability therein. From the perusal of the
said charges, it is seen that totally 27 charges were framed against the petitioner, out of which charge Nos. 1, 2, 5, 6, 7, 8, 18 and 19 were
dropped against him. As against the dropping of those charges, it appears that the Society has not filed any appeal. Thus, dropping of those
charges became final and conclusive.
In so far as the charge No. 3 is concerned, it is stated therein that the Secretary of the Society has misappropriated the fund to the tune of Rs.
3,61,002.90 to which the petitioner was held responsible. In so far as Charge No. 4 is concerned, here again, the Secretary was charged with loss
of fund to the Society to the tune of Rs. 2,01,442.25 to which the petitioner was held responsible. Item No. 3 is in respect of purchase of
stationery items from 21.11.1996 to 31.3.2001 whereas item No. 4 is in respect of hiring the car by the Secretary for collecting the loan amounts
from 31.3.1997 to 31.3.2001. While considering these two charges, the Tribunal except by reiterating the findings rendered by the original
authority, has not given any independent finding by a detailed discussion of the facts and circumstances as well as the grounds raised by the
appellant. The appellate authority has not considered the matter on merits except by reiterating those charges as found in its original order. The
same thing had happened in respect of other charges also. A bare perusal of the order of the Tribunal would show that the appellate authority has,
in fact, reiterated the findings rendered by the original authority and ultimately at paragraph No. 10 of the order has given a finding that notice in the
surcharge proceedings was issued to the petitioner and others and their objections had been considered by the original authority. Except by saying
so, the appellate authority has not considered the merits of the matter for each charge in detail and given a finding. Needless to say that the
appellate authority is also a fact finding authority and is expected to render its own finding after applying his mind independently to the facts,
charges and findings of the original authority.
In fact, the learned counsel for the first respondent has also admitted that the finding of the appellate authority is without discussion. Learned
counsel for the first respondent also pleaded that the matter may be remitted back to the appellate authority for considering the matter afresh.
Likewise one of the contentions of the learned counsel for the petitioner is that the appellate authority has not given any reasons for confirming the
order of original authority.
Therefore, without expressing any view on the merits and contentions of the rival parties, I am only remitting the matter back to the Tribunal
below by setting aside the impugned order for reconsidering the appeal afresh on merits and in accordance with law and pass orders on the same
by giving specific finding in respect of each charges levelled against the petitioner. Needless to say that the petitioner as well as the contesting
respondents are entitled to raise additional grounds, if required, to substantiate their contentions before the appellate authority. It is also made clear
that setting aside the order of the appellate authority and remitting the matter back to him for fresh consideration should not be construed as
accepting the contentions of the petitioner, as I have already said that the matter is remitted back without expressing any view on the merits and
contentions of rival parties. It is also to be noted that the appellate authority also being a fact finding authority is required to make a decision based
on sound reasons and findings. If no such reasons and findings are available, then the order passed by the appellate authority has to be treated as a
non-speaking order which cannot be sustained. As I am only remitting the matter back to the appellate authority for fresh consideration without
expressing any view on the merits and contentions of rival parties, I am not referring to the judgments cited by both sides.
Hence, the order of the appellate authority is set aside and the matter is remitted back to the appellate authority for fresh consideration and
disposal of the appeal within a period of three months from the date of receipt of copy of this order. With these observations, the Civil Revision
Petition in C.R.P. (NPD) No. 3517 of 2009 is allowed. Consequently, the connected M.Ps. are closed. No costs. Since C.R.P. (NPD) No. 3517
of 2009 is allowed and the matter is remitted back to the appellate authority, the order impugned in the other Civil Revision Petition in C.R.P.
(NPD) No. 3518 of 2009 arising out of the attachment proceedings is also set aside and the matter is remitted back to the appellate authority for
fresh consideration as stated above. The Civil Revision Petition in C.R.P. (NPD) No. 3518 of 2009 is allowed. Consequently, the connected M.P.
is closed. No costs.