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2014 Supreme(AP) 234
HIGH COURT OF ANDHRA PRADESH
A.V. SESHA SAI, J.
S. Ramu
Versus
The A.P. Cooperative Tribunal, Rep. by its Registrar & Others
W.P.No.17226 of 2009
Decided On : 18-02-2014
Advocate Appeared:
For the Petitioner:V.V.N. Narayana Rao, Advocate.
For the Respondents: G.P. for Cooperation.
No one can be condemned unheard and no order prejudicially affecting any person can be passed by a public authority without affording him reasonable opportunity to defend himself or represent his cause.
Headnote:(A) Andhra Pradesh Cooperative Societies Act, 1964---Sections 52 and 60-Surcharge proceeding-Section 60 of Act contemplates, in clear terms, an opportunity to the delinquent for making a representation---Said right to file representation is a valuable one given to the person likely to be affected and said right cannot be brushed aside in a routine and mechanical manner---After issuance of show-cause notice and service of the same and after calling for the explanation and after submission of the same by the delinquent, the delinquent is entitled to cross-examine the witnesses examined in the course of enquiry under Section 52 of the Act and also entitled to examine his witnesses to rebut their evidence. Unless and until the same is done, the spirit of making a representation as contemplated under Section 60 of the Act cannot be said to be fulfilled---Principles of natural justice have to be read into the provisions of Section 60 of the Act.
(B) Natural Justice---As a general rule, the authority entrusted with the task of deciding the lis between the parties or empowered to make an order which prejudicially affects the rights of any individual or visits him with civil consequences, is duty bound to act in consonance with the basic rules of natural justice including the one that material sought to be used against the person concerned must be disclosed to him and he should be given an opportunity to explain his position---This unwritten right of hearing is fundamental to a just decision which forms an integral part of concept of rule of law. This right has its roots in the notion of fair procedure. It draws attention of the authorities concerned to the imperative necessity of not overlooking the cause which may be shown by the other side before coming to its decision.
Result-Writ Petition allowed.
1. In the present writ petition, the petitioner herein assails the order dated 13.07.2009 passed by the Andhra Pradesh Cooperative Tribunal, Visakhapatnam, in O.A.50/2007 and the Proceedings in Rc.No.297/2003-B, dated 28.06.2003, issued by the Deputy Registrar of Cooperative Societies, third respondent herein.
2. Briefly stated, the case of the petitioner herein as per the pleadings in the affidavit filed in support of the writ petition is as under:-
i. When the petitioner was functioning as a Secretary of the Golugonda Mandal Teachers Cooperative Credit Society Limited, the Joint Registrar/District Cooperative Officer, Visakhapatnam, second respondent herein, vide proceedings in Rc.No.706/2002-C (Coop.), dated 08.03.2002, ordered inspection under Section 52 of the Andhra Pradesh Cooperative Societies Act, 1964 (hereinafter called ‘ the Act’) into the affairs of the said society on the objections submitted by the rival members of the society.
ii. Pursuant to the said orders, the Sub-Divisional Cooperative Officer, Narsipatnam, Visakhapatnam District, fourth respondent herein, was appointed as Enquiry Officer, and on his requisition, the entire records were handed over to him under proper acknowledgement and in stead of inspecting the books, he conducted enquiry by taking sworn statement from the members, who made complaint against the petitioner. The Enquiry Officer lost the entire books handed over to him, which would be evident from the complaint made by him to the Station House Officer, Anakapalli Police Station and the same was registered as FIR.No.111/2002.
iii. The Enquiry Officer without giving any opportunity and without verifying record and in violation of principles of natural justice, submitted the enquiry report to the third respondent/Deputy Registrar of Cooperative Societies, fastening the liability to the petitioner and basing on the said report, the third respondent issued surcharge notice dated 07.03.2003 and asked the petitioner to submit explanation and the said notice was received by the petitioner on 14.03.2003.
iv. Petitioner got issued telegram dated 26.03.2003 to the fourth respondent/Sub-Divisional Cooperative Officer, Narsipatnam, with a request to grant 20 days time for submission of explanation in view of his son’s illness and further requested to intimate the next date of hearing so as to enable him to submit his explanation. The fourth respondent without giving any further notice and opportunity and without furnishing the documents as requested for cross examining the witnesses to defend his case, passed the surcharge order dated 28.06.2003 for realisation of the alleged amount of Rs.6,50,353/-. Assailing the said surcharge proceedings, petitioner filed W.P.No.17915/2003 before this Court and this Court initially admitted the writ petition and after filing counter by the respondents, the said writ petition was disposed of on 13.12.2006 with a direction to file appeal before the appellate authority under Section 76 of the Act. In pursuance of the same, the petitioner herein filed O.A.No.50/2007 before the Cooperative Tribunal and also filed M.A.No.26/2007 for stay of all further proceedings and the Tribunal initially was pleased to grant stay on 02.07.2007 and the same was in force till the disposal of the appeal.
v. Respondents 2 to 5 did not file their counters and there was no representation on behalf of respondents 2, 3 and 4. But, however fifth respondent was represented by a counsel. Without considering the contentions advanced by the petitioner herein before the first respondent and without there being any proper appreciation, the Tribunal vide Judgement dated 13.07.2009 dismissed the said O.A.50/2007 filed by the petitioner. Assailing the said order dated 13.07.2009 passed by the Tribunal dismissing the application filed by the petitioner and the surcharge order dated 28.06.2003 passed by the third respondent herein, the present writ petition has been filed.
3. A counter affida
