{"id":60185,"date":"2006-04-28T00:00:00","date_gmt":"2006-04-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-marimuthu-vs-the-deputy-registrar-of-on-28-april-2006"},"modified":"2018-03-17T01:35:46","modified_gmt":"2018-03-16T20:05:46","slug":"s-marimuthu-vs-the-deputy-registrar-of-on-28-april-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-marimuthu-vs-the-deputy-registrar-of-on-28-april-2006","title":{"rendered":"S.Marimuthu vs The Deputy Registrar Of on 28 April, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
S.Marimuthu vs The Deputy Registrar Of on 28 April, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT\n\n\nDATED : 28\/04\/2006\n\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE P.JYOTHIMANI\n\n\nW.P.No.1064 of 2004,\nW.P.No.1065 of 2004\nand\nW.P.M.P.Nos.1052 and 1053 of 2004\n\n\nS.Marimuthu\t\t...\tPetitioner in W.P.No.1064 of 2004\n\nI.Jeyaraman\t\t...\tPetitioner in W.P.No.1065 of 2004\n\n\n\nVs.\n\n\n1.The Deputy Registrar of\n  Co-operative Societies(Housing),\n  Madurai Circle,\n  Madurai - 20.\n\n2.The Special Officer,\n  2591, Madura Coats and other\n  Public Service Co-op. Housing\n  Society Ltd.,\n  7\/28, Theni Main Road,\n  P.P.Chavadi,\n  Madurai.\t\t...\tRespondents  in both  the W.Ps.\n\n\nPRAYER\n\n\nWrit Petition filed under Article 226 of the Constitution of India\npraying for the issuance of a Writ of  Certiorari, to call for the records\nrelating to the order made in Tha.Va.No.53\/2003-2004\/Pa.Tho. dated 14.07.2004 on\nthe file of the first respondent quash the same in so far as the petitioner is\nconcerned.\n\n\n!For Petitioners   \t....\tMr.R.Singaravelan for\t\t\t\t\n\t\t\t \tMr.K.Samydurai\n\n^For 1st Respondent \t....\tMr.K.V.Vijayakumar,\t\t\t\t\n\t\t    \t\tSpecial Government Pleader.\n\nFor 2nd Respondent \t....\tMr.S.Seenivasagam\n\t\t\t\t\n\n:ORDER\n<\/pre>\n
\tHeard the learned counsel appearing for the petitioners and the learned
\nSpecial Government Pleader for the respondents.\n<\/p>\n
\t2. In these two writ petitions, the petitioners have chosen to challenge
\nthe order of the first respondent dated 14.07.2004 insofar as it relates to the
\npetitioners under the impugned order of the second respondent purported to have
\nbeen issued under Section 87 of the Tamil Nadu Co-operative Societies Act. The
\nfirst respondent has issued surcharge proceedings against the petitioner in
\nW.P.No.1064 of 2004(S.Marimuthu) for the recovery of the amount due to loss to
\nthe second respondent to the extent of Rs.1,17,213\/-.  Likewise, in respect of
\nthe petitioner in W.P.No.1065 of 2004 (I.Jeyaraman) for having caused loss to
\nthe second respondent society an amount of Rs.3,82,551\/- along with interest at
\nthe rate of 18% was directed to be paid jointly along with other persons.\n<\/p>\n
\t3. The writ petitioners while working as Special Officer of the second
\nrespondent Co-opearative society have paid salary to one Mrs.K.R.Latha. Her
\nappointment was subsequently terminated as illegal and audit objections were
\nraised.  It was fixing the responsibility on the petitioners that she was
\nappointed illegally, the above said impugned proceedings came to be passed.  The
\nsaid impugned order is challenged by the petitioners on various grounds
\nincluding that when a vacancy of a typist arose in the second respondent society
\none Mrs. K.R.Latha who was then working as a typist in Pandiyan Roadways
\nCorporation Workers Co-operative Stores Limited, Madurai, has applied for the
\npost and after obtaining concurrence from the said Workers Co-operative Stores
\nLimited and no objection, a resolution of the second respondent was passed and
\nsent to the Registrar of Co-opertive Societies who issued order through the
\nfirst respondent to appoint the said Latha as a typist in the second respondent
\nsociety and therefore, there was no justification in fixing the responsibility
\non the petitioners.  The petitioners have only appointed as per the orders of
\nthe Registrar under the Tamil Nadu Co-operative Societies Act and there was no
\nnegligence on their part.\n<\/p>\n
\t4. Moreover, the petitioners have challenged the impugned proceedings also
\non the ground of laches or delay namely that when the appointment was made in
\nrespect of said Latha on 08.09.1996, the show cause notice came to be issued on
\n17.01.2004 after 7 years.\n<\/p>\n
\t5. The writ petitioner in W.P.No.1064 of 2004 has infact appeared before
\nthe Appellate Authority under the Tamil Nadu Shops and Establishments Act appeal
\nfiled by the said K.R.Latha and given evidence as R.W.I and fairly defended the
\nsecond respondent.  Infact, as against the order of the Appellate Authority
\nunder the Tamil Nadu Shops and Establishments Act, a legal opinion was given by
\nthe Government Pleader from the High Court, Madras stating that it is not a fit
\ncase for further filing of any writ petitions against the order of the Appellate
\nAuthority under the provisions of Tamil Nadu Shops and Establishments Act.  \t6.
\nThat apart, the petitioners have not in their individual capacity made the
\nappointment of the said Latha and they have only implemented the orders of the
\nRegistrar of Co-operative Societies.  It is the further case of the petitioners
\nthat when once the said petitioner in W.P.No.1064 of 2004 has taken effective
\nsteps to defend the second respondent imputing motive on the Appellant Authority
\nnamely quasi judicial authority is degrading the integrity of an officer
\nappointed under law.  It is the further case of the petitioners that even
\nassuming that any irregularities in the appointment of the said Latha is there
\nit does not attract Section 87 of the Tamil Nadu Co-operative Societies Act. In
\nfact, when a proposal to take disciplinary action against the petitioner in
\nW.P.No.1065 of 2004 was sought to be made, the Government by G.O.(T)No.170 dated
\n30.06.2003 has decided not to be proceed with the disciplinary proceedings after
\nconsidering explanation submitted by him.  Whileso, the impugned proceedings of
\nthe first respondent against him under Section 87 of the Tamil Nadu Co-operative
\nSocieties Act for surcharge is unsustainable.\n<\/p>\n
\t7. On the other hand, it is the case of the second respondent who has
\nfiled the counter affidavit that as per the decision of the Full Bench of this
\nCourt, no writ petition lies against the co-operative institution as a matter of
\ncourse.  Further it is the case of the second respondent that the impugned order
\nis appealable under Section 152 of the Tamil Nadu Co-operative Societies Act and
\ntherefore, this writ petition is not maintainable.  It is the further case of
\nthe second respondent that when the petitioners were holding the post of
\nsupervising the co-operative society as Sub Registrar, the proposal for
\nappointment of Latha, her initial appointment was not proper since she was not
\nworked as typist 10 years and her services were not regularised in the society
\nwhere she was working and in such circumstances, both the societies have not
\npassed resolution for relieving her and also taking her and therefore, the
\nproceeding becomes void ab initio.  The appointment of said Latha cannot be
\ntreated as an appointment by transfer by prior approval but a fresh appointment.
\nSince it is an illegal appointment by payment of salary to her the second
\nrespondent had to incur huge loss. It is proved on the part of the petitioners
\nthat they have wrongly recommended the proposal for transfer based on false
\nparticulars and it was based on the audit objection, the proceedings under
\nSection 87 of the Tamil Nadu Co-operative Societies Act was initiated.  The
\nperiod of limitation mentioned in Section 87(1) of the Act namely, 7 years for
\nthe purpose of initiating action should be taken from the date of knowledge
\nwhich came to the lime light only after the audit report.  The audit objection
\nwas received in October 2003 and it was only based on the said objection the
\nsecond respondent came to know about the irregularities committed by the
\npetitioners.  Therefore, according to the second respondent, the cause of action
\nfor invoking powers under Section 87 of the Act is the source of information
\nunder Sections 80, 81,82,83 and 84 of the Act which is based on inspection and
\ninvestigation of books etc.,<\/p>\n
\t8.Mr.R.Singaravelan, learned counsel appearing for the petitioner would
\nsubmit that apart from the fact that for the action to be initiated under
\nSection 87 of the Act a fraudulent intention or wilful negligence must be the
\nbasic requirement. In the present case, it was not as if the petitioners have
\nmade appointment of said Latha but it was based on the resolution passed by the
\nsecond respondent itself as approved by the first respondent as per the
\ndirection of the Registrar of the Co-operative Societies  as a Special Officer,
\nperforming supervisory function, she was appointed and the petitioners cannot
\nindependently make any decision.  Therefore, according to the learned counsel
\nfor the petitioner there is no wilful or deliberate misconduct or negligence.
\nHe would rely upon the judgment of this Court in  B.S.Somasundaram Vs.The
\nThanjavur District Co-operative Supply Market Society Ltd., represented by the
\nLiquidator, Tiruvarur and others reported in 1983 (II) MLJ 523 by referring to
\nthe corresponding section 71 of the old Act of 1961 which is equivalent to the
\npresent Section 87 of the new Act to say that it is not merely negligence that
\nattracts the surcharge proceedings but it must be proved to be a wilful or
\ndeliberate conduct.  He has placed reliance on another judgment reported under
\nthe said old Act in Sathyamangalam Co-operative Urban Bank Limited Vs.The Deputy
\nRegistrar of Co-operative Society and another reported in 1980 (II) MLJ 17 for
\nthe same proposition.\n<\/p>\n
\t9. Reliance has also been placed on a judgment of the Division Bench of
\nthis Court by referring to the said act particularly Section 71 in Karuppiah.P.
\nVs. The Deputy Registrar of Co-operative Societies and another reported in 1989
\nW.L.R 272.  Further reliance has also been placed on the judgment of this Court
\nin P.N.Chockappan and others Vs. The Special Tribunal for Co-operative Cases,
\nHigh Court Campus, Madras and others reported in 1999 (I) MLJ 587 for the same
\nproposition. To show that the negligence under Section 71 of the old Act should
\nbe wilful negligence he has also relied upon another judgment in M.Sambandam Vs.
\nThe Deputy Registrar (Credit) Co-operative Societies, Mylapore, Madras and
\nothers reported in 1999 (3) MLJ 310.   The learned counsel would also submit
\nthat inasmuch as the impugned proceedings are without jurisdiction, availability
\nof alternative remedy of filing of appeal under Section 152 of the Tamil Nadu
\nCo-operative Societies Act is not a bar for invoking the jurisdiction of this
\nCourt under Article 226 of the Constitution of India.  For that proposition he
\nhas also placed reliance on the judgment of the Supreme Court in State of
\nHimachal Pradesh, Vs. Raja Mahendra Pal and others reported in 1999 (S.C.) 1786.
\nIt is also submitted by the learned counsel for the petitioners that even
\notherwise after two years of filing of the writ petition, the petitioners cannot
\nbe denied the right in the writ petition on the basis of alternative remedy.\n<\/p>\n
\t10. On the other hand, Mr.Seenivasagam, learned counsel appearing for the
\nsecond respondent has placed reliance on the judgment of the Full Bench of this
\nCourt reported in 2000 4 CTC 556 wherein the Full Bench has held that filing of
\nthe writ petition against the order passed under the Co-operative Societies Act
\ncannot be entertained as a matter of course.  Therefore, according to the
\nlearned counsel, the writ petition is not maintainable especially in the
\ncircumstances that an appeal lies against the order under Section 87 of the Act
\nto the Appellate Authority under Section 152 to the Tribunal.  The learned
\ncounsel would submit that the 7 years period of limitation under Section 87 of
\nthe Tamil Nadu Co-operative Societies Act has to be construed from the date of
\nknowledge as per Section 80, 81, 82 and 83 and in the present case it was only
\nafter the audit report and enquiry report was filed in October 2003, the
\nproceedings under Section 87 were initiated and therefore, there is no delay on
\nthe part of the second respondent in having initiated the surcharge proceedings.
\nIt was only after the submission of such reports the proceedings were initiated
\nby the first respondent.  The receipt of the report under Section 82 of the
\nTamil Nadu Co-operative Societies Act was on 17.01.2004 and therefore, it can
\nnever be said that the proceedings initiated is barred by limitation.  The
\nlearned counsel would also submit that  as per rules framed under Section 149
\n(2) of the Act, the employment of the second respondent should be after
\nnotifying the employment exchange in such circumstances, the appointment of the
\nsaid Latha would amount of breach of Trust and against the norms and it should
\nbe treated as wilful negligence on the part of the petitioners.  The learned
\ncounsel contended that while the said Latha was terminated on 21.09.2002 the
\nappeal filed by her under Section 41(2) of the Tamil Nadu Shops and
\nEstablishments Act in which the petitioners in W.P.No.1064 of 2004 has given
\nevidence on behalf of the second respondent, an order has been passed by the
\nAppellate Authority under the said Act on 03.10.2002 which is within 12 days
\nfrom the date of termination of the said Latha and according to the learned
\ncounsel for the second respondent it speaks volume about the involvement of the
\npetitioners in colluding in the Shops and Establishments Appeal.\n<\/p>\n
\t11. I have heard the learned counsel for the petitioners as also the
\nrespondents and perused the entire records.\n<\/p>\n
\t12. At the outset, as rightly pointed out by the learned counsel for the
\npetitioners, the law is well settled. In any of the surcharge proceedings the
\ncondition precedentis that the liability can be fixed on the employees of the
\nco-operative societies when it is found that they were intentionally committing
\nsome mistake and negligence.  The judgments referred to by the learned counsel
\nfor the petitioners which relate to Section 71 of the Tamil Nadu Co-operative
\nSocieties Act 1961 which is in pari materia, the same as that of the Section 87
\nof the present Tamil Nadu Co-operative Societies Act, 1983, show categorically
\nthat in all those proceedings of surcharge the conditional precedentis that
\nthere must be a wilful negligence on the part of the co-operative employees.\n<\/p>\n
\t13. In view of the facts and circumstances of the case which show that by
\nmaking appointment of the said Latha who was admittedly not by the petitioners
\non their own accord but on the basis of the direction issued by the Registrar of
\nCo-operative Societies as seen from the letter of the first respondent himself
\nin his letter dated 09.08.1996, the petitioner cannot be held to be solely
\nresponsible for her appointment.\n<\/p>\n
\t14. A reference to the said letter dated 19.03.2001 written by the first
\nrespondent to the Special Officer by making a reference of a letter of the
\nRegistrar dated 26.08.1996 would show that the Registrar of Co-operative
\nSocieties has requested to inform the matter about the appointment of Latha as
\ntypist and therefore, it can never be said that the appointment of said Latha
\nwas directly done by the petitioners.\n<\/p>\n
\t15. Likewise, a reference about the proceedings of the second respondent
\ndated 20.08.1996 also refers about the Registrar’s direct letter dated
\n15.08.1996. Eventhough the said letter dated 20.08.2005 has been signed by the
\npetitioner in W.P.No.1065 of 2004 as Special Officer (Housing), the same is
\nstated to have passed based on the communication of the Registrar of Co-
\noperative Societies.\n<\/p>\n
\t16. In view of the same, I have no hesitation to come to the conclusion
\nthat the appointment of the said Latha is not by any stretch of imagination by
\nthe petitioners on their own accord.  In any event there are absolutely no
\nrecords to show that there was any wilful negligence on the part of the
\npetitioners.\n<\/p>\n
\t17. The contentions raised by the learned counsel for the second
\nrespondent imputing motive on the Appellate Authority under the Shops and
\nEstablishments Act which was initiated by K.R.Latha under Section 41(1) of the
\nsaid Act challenging her termination by the second respondent is not
\nappreciable.  The mere fact that the said Latha was terminated from service on
\n21.09.2002 and the Appellate Authority under the Shops and Establishments Act
\nhas passed orders in the appeal on 03.10.2002 setting aside the termination
\norder itself cannot be a ground to impute motive and in any event that can never
\nbe a ground for taking action against the petitioner in W.P.No.1064 of
\n2004(S.Marimuthu) who was Special Officer and has infact given evidence before
\nthe Appellate Authority as R.W.-I in support of the second respondent.  An
\nattempt made on behalf of the second respondent to impute such motive is
\nunbecoming of a public authority which cannot be appreciated or encouraged in
\nthe judicial parlour.\n<\/p>\n
\t18. There is one other situation that admittedly in respect of the writ
\npetitioner in W.P.No.1065 of 2004, the Government itself has dropped further
\ndepartmental action as seen in the G.O.(T)No.170 dated 30.06.2003.  Whileso, it
\nis not explained as to how the surcharge proceedings has been initiated against
\nthe said petitioner also.  This only shows that the respondents somehow or other
\nwant to implicate the petitioners in respect of certain act which was not
\nexclusively within the control of the petitioners.  While admittedly, the
\nappointment of the said Latha itself  was on 09.08.1996, the show cause notice
\nissued in respect of the conduct to the petitioners is on 17.01.2004 which is
\nclearly beyond the period of 7 years.\n<\/p>\n
\t19. A reference to the impugned order would show that the impugned
\nproceedings under Section 87 of the Tamil Nadu Co-operative Societies Act having
\ninitiated by the first respondent suo motto and there is absolutely no reference
\nabout any from audit report or enquiry report.  The counter filed by the second
\nrespondent now developing as if the enquiry report has subsequently revealed the
\nmisconduct is unacceptable for the simple reason that such report has not been
\nmentioned in the impugned order.\n<\/p>\n
\t20. In view of the reasons stated above, in my considered view that the
\nimpugned order passed by the first respondent insofar as it relates to the
\npetitioners is not sustainable.\n<\/p>\n
\t21. In view of the same, the impugned order passed by the first respondent
\ninsofar as it relates to the petitioners in these writ petitions is quashed and
\nthe writ petitions stand allowed.  There is no order as to costs.
\nConsequently, connected W.P.M.Ps. are also closed.\n<\/p>\n
sms<\/p>\n
To<\/p>\n
1.The Deputy Registrar of
\n  Co-operative Societies(Housing),
\n  Madurai Circle,
\n  Madurai – 20.\n<\/p>\n
2.The Special Officer,
\n  2591, Madura Coats and other
\n  Public Service Co-op. Housing
\n  Society Ltd.,
\n  7\/28, Theni Main Road,
\n  P.P.Chavadi,
\n  Madurai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S.Marimuthu vs The Deputy Registrar Of on 28 April, 2006 BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 28\/04\/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.1064 of 2004, W.P.No.1065 of 2004 and W.P.M.P.Nos.1052 and 1053 of 2004 S.Marimuthu … Petitioner in W.P.No.1064 of 2004 I.Jeyaraman … Petitioner in W.P.No.1065 of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-60185","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nS.Marimuthu vs The Deputy Registrar Of on 28 April, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/s-marimuthu-vs-the-deputy-registrar-of-on-28-april-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.Marimuthu vs The Deputy Registrar Of on 28 April, 2006 - 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