2007 Supreme(Guj) 68

Gujarat High Court
Judgename :D.A.MEHTA
JAYANTIBHAI DAHYABHAI PATEL - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 1039 Of 2007
Decided On : 02/05/2007

Headnote:Point in Issue :

       Whether expenditure made beyond sanctioned amount is required to recompense the union by members of committee who travelled in the said trip?

       Head Note :

       Gujarat Co-operative Societies Act, 1961 (Guj. Act 10 of 1962) - Sections 84, 86, 87, 110 and 93 - Expenditure - Beyond sanctioned amount - Order to recompense the union - Sustainability - Finding of - Member Directors of Managing Committee were to participate in Leadership Development programme for 8 days at Delhi for which a sum of Rs. 73,500/- was sanctioned by resolution No. 10 of the Committee - However, Director travelled for 16 days alongwith their family member and incurred additional expenses of Rs. 50,531.75 - The Inquiry Officer appointed by Registrar by its order dated 17.09.2001 held Director liable to pay the same, as same being an act of misfeasance on their part - On appeal Tribunal has also concurrently found that the petitioner and other members who participated in the trip had acted beyond the resolution of the Managing Committee - The contention that petitioner and other members borne the expenses for additional days has not been accepted by Enquiry Officer and rightly so in absence of any such averment either in memorandum of appeal before Tribunal or even in written statement filed before Tribunal - The Tribunal has worked out per head liability and in the circumstances it is not possible to hold that Tribunal has committed any error contention that entire action by Registrar was due to political consideration and mala fide has no basis in view of the facts brought on record - In the facts and evidence on record and in the light of legal position it cannot be accepted that impugned orders of Tribunal suffer from any legal infirmity so as to call for any intervention by the Court.

       Held :

       The facts found by the Inquiry Officer and the Tribunal reveal that the Managing Committee passed Resolution No. 10 on 31.03.1998 whereby all the members/directors constituting the Managing Committee were to attend the Leadership Development Programme to be conducted by National Cooperative Union of India from 22.04.1998 to 24.04.1998. Admittedly NCUI had only extended invitation for the aforesaid period of three days and Resolution No. 10 of the Managing Committee permitted the total expenditure that may be incurred for a period of eight days considering the period required for travelling to and fro from Nadiad to Delhi. Quotation received from Patel Travels was for a sum of Rs. 73,500/- for the said period of eight days which was inclusive of travelling expenses as well as expenses towards meals etc. The resolution nowhere provided that the study tour could be extended beyond the permitted period of eight days so as to travel to other places i.e. other than going upto New Delhi and returning, nor did the resolution provide for sight seeing either enroute or beyond New Delhi. The Tribunal has found that a sum of Rs. 73,500/- was paid to Patel Travels; seven committee members travelled, accompanied by their family members; books of account of the Union record payment of Rs. 73,500/- rejmel (cash book) of Patel Travels also reflects the contra entry and Patel Travels has passed a receipt for a sum of Rs. 73,500/- only. The Executive Officer of the Union has placed on record details of various places like Hardwar, Ayodhya, Kathmandu, Banaras, Allahabad and Agra etc. which were visited by 23 persons in all. Amongst these 23 persons 4 persons are found to be the staff members who accompanied the Managing Committee members. [Para 14]

       The Tribunal has come to the conclusion that neither does the invitation letter of NCUT refer to any other place of visit, nor does the invitation refer to family members accompanying the authorised persons of the Union; viz., family members of the 7 committee members in the present case. It is in the aforesaid circumstances, the facts and evidence on record that the Tribunal has found that the tour for a total period of 16 days accompanied by family members violates the sanction which was granted vide Resolution No. 10, as the said resolution only permitted a trip for eight days for travelling from Nadiad to New Delhi and back, and that too only for the Managing Committee Members. Therefore, both the Inquiry Officer and the Tribunal have concurrently found that the petitioner and other persons who participated in the trip had acted beyond the resolution of the Managing Committee. The contention, that the petitioner and other members of the Committee who travelled have borne the expenses for the additional days and their family members, has not been accepted by the Inquiry Officer in absence of any evidence. The said contention does not find place in the Memorandum of Appeal before the Tribunal or even in the written submissions filed before the Tribunal. Therefore, on this count also it is not possible to state that the orders of the Tribunal suffer from any infirmity so as to call for any intervention by this Court. The Tribunal primarily was called upon to decide the validity and correctness of the order made by the Inquiry Officer and unless and until a specific contention is raised before the Tribunal, it is not possible to expect the Tribunal to undertake an inquiry into facts and evidence on record on its own, if it comes to the conclusion that the order of the Inquiry Officer against which Appeal is before the Tribunal is correct on facts and evidence on record. [Para 15]

       Both the Inquiry Officer and the Tribunal have concurrently found that except for Rs. 73,500/-, no other sum had been paid by the Union or the petitioner and other persons who undertook the trip and therefore they have worked out the liability per head after apportioning the amount amongst the total number of persons who travelled. The Inquiry Officer worked out the per head liability on the basis of total number of persons who travelled as being 25 and deducting therefrom the amount relatable to 10 Managing Committee members. However, the Tribunal has taken into consideration the fact that actually only 23 persons had travelled, out of which 4 were staff members and though the resolution had been passed by 10 committee members, in fact only 7 committee members had undertaken the trip. That is how the Tribunal has reworked the per head liability. In the aforesaid circumstances, it is not possible to state that the Tribunal has committed any error. Once the entire issue was at large before the Tribunal viz., whether any liability for misfeasance arose so as to entitle the Union to effect any recovery from the committee members who had undertaken the trip, as a natural corollary while determining and ascertaining as to who in fact had travelled, the Tribunal was required to determine the total expenses incurred, the total number of persons who had travelled and the liability per head to make payment to the Union, considering the requirement of provisions of Section 93 of the Act, viz., making recovery from the persons who are in the management of the affairs of the society. Therefore, the Tribunal has rightly excluded the staff members while computing per head liability.

        [Para 17]

       Law Laid Down :

       Once an act of misappropriation is proved there is no question of showing uncalled for sympathy.

       Case Law Analysis :

       Nagendra Nath Bora & Anr. vs. Commissioner of Hills Division, AIR 1958 SC 398 [Para 5];; Surya Dev Rai vs. Ram Chander Rai & Ors., 2003 (6) SCC 675 [Para 5];; Commissioner of Customs & Ors. vs. Vasant Maganlal Chokshi & Ors., 2007 (1) GCD 37 (SC) [Para 9];; Official Liquidator, Supreme Bank Ltd. vs. P.A. Tendolkar, AIR 1973 SC 1104 [Para 13.1];; The Official Liquidator vs. Raghava Desikachar & Ors., AIR 1974 SC 2069 [Para 13.2];; Official Liquidator of Dhavalgiri Paper Mills Pvt. Ltd. vs. Chinubhai Khilachand & Ors., 2002 (39) GLR 2738 [Para 13.3];; The State of Punjab & Ors. vs. Ram Singh Constable, JT 1992 (4) SC 253 [Para 19.1];; Janatha Bazar (South Kanara Central Cooperative Wholesale Stores Ltd.) & Ors. vs. Secretary, Sahakari Noukarara Sangha & Ors., 2007 (7) SCC 517 [Para 19.2];; Karnataka State Road Transport Corporation vs. B.S. Hullikatti, AIR 2001 SC 930 [Para 19.3].-Relied on

       Conclusion :

       Having come to finding that petitioner has committed an act of misfeasance he is bound to repay the loss to the society.

       Decided in Favour of :

       Respondent

       Petition Rejected