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2014 Supreme(AP) 236
High Court of Andhra Pradesh
A.V. SESHA SAI, J.
S. Ramu
Versus
The A.P. Cooperative Tribunal, Visakhapatnam & Others
W.P. No. 17226 of 2009
Decided On: 18-02-2014
For the Petitioner:V.V.N. Narayana Rao, Advocate.
For the Respondents: G.P. for Cooperation.
For the Respondents No. 5: A. Giridhar Rao
Headnote:
Andhra Pradesh Cooperative Societies Act, 1964 - Section 52 - Cooperative Credit Society - Joint Registrar/District - Sub-Divisional Cooperative - Petitioner assails order Proceedings in issued by Deputy Registrar of Cooperative Societies - Petitioner was functioning as a Secretary of into affairs of said society on objections submitted by rival members of society - Respondent was appointed as Enquiry Officer and on his requisition entire records were handed over to him proper acknowledgement and instead of inspecting books conducted enquiry by taking sworn statement from members who made complaint against petitioner - Enquiry Officer lost entire books handed over to him which would be evident from complaint made by him to Station House Officer Police Station and same was registered as FIR - Enquiry Officer without giving any opportunity and without verifying record and in violation of principles of natural justice - Petitioner to submit explanation and said notice was received with a request to grant days time for submission of explanation in view of his sons illness and further requested to intimate next date of hearing so as to enable him to submit his explanation - Petitioner got issued telegram – Held, It is to be noted that proceedings of Act are independent in nature and they are original proceedings and it is duty of the officer authorized said Section to consider entire material available on record independently by duly observing the principles of natural justice also - Tribunal in instant case completely lost sight of basic reality that it was dealing with proceedings having civil consequences - A reading of order of Tribunal clearly and manifestly shows that Tribunal did not take into consideration principles laid down by this Court in above referred judgments and very object and intention of legislature behind of Act - Non appreciation of the issue involved in case would be Writ large on face of order of Tribunal while dealing with point of jurisdiction raised by petitioner held that same is a technical one - In fact said aspect touches the very root of matter if it is tested in light of ratio laid down by this Court in judgment in when it is categorical case of petitioner that provisions of Act cannot be pressed into service based on complaint/petition made by members of society and Tribunal ought to have considered said aspect and ought to have recorded a finding on same by taking into consideration principle laid down by this Court in above referred judgment - Petition allowed (Para 19)
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 affidavit,
