Failure by petitioner in discharge of duty cannot be termed as wilful default.

1. Aggrieved against the order of the third respondent dated 31.8.1989 the petitioner has approached this Court for quashing the said order on various grounds.

2. According to the petitioner, he was a President of the second respondent-Society in the year 1980 and continued the same position till April, 1988 when the second respondent superseded the Board and appointed a Special Officer. The second respondent Society alleged that during the tenure as a President of the said Society certain irregularities have taken place, consequently an enquiry under Sec.65 of the Tamil Nadu Act 53 of 1961 was conducted by the Special Investigation Squard of the Registrar of Co-operative Societies Office. A show-cause notice was issued to him and other members under Sec.71 on 11.11.1987. He gave a reply in person in the form of written explanation with 12 documents to substantiate the defence claim. No enquiry report was sent to him either along with the show-cause notice or later at any point of time. The first respondent has passed an order in his proceedings Na.Ka.6414/87 holding the petitioner ex parteand directed the petitioner and four other members to pay the surcharge of Rs.2,67,071.15 either jointly or severally. Against the order of the first respondent he preferred an appeal before the Special Tribunal for Co-operative Societies in S.T.C.A.No.94 of 1988, the third respondent herein. Before the tribunal the petitioner explained to the fact that he was not responsible for any of the commission or omission and also pointed out that there was no negligence on his part. It is also brought to the notice of the tribunal, the failure to supply enquiry report. Without considering all the material aspects, the third respondent by order dated 31.8.1989 confirmed the order of the first respondent and dismissed the appeal. Against which the petitioner filed the present writ petition.

3. The second respondent has filed a counter affidavit wherein it is stated that the petitioner was the Ex-President of the Society from July, 1980 to April, 1988. During the tenure of the office of the petitioner as President of the Society certain irregularities in the accounts and funds were noticed by the Department and an enquiry under Sec.65 of the Act was ordered. The enquiry revealed that a sum of Rs.2,67,017.15 was caused as loss to the Society. Based on the enquiry report, a notice under Sec.71 of the Act was issued to all the Directors of the Society including the petitioner as to why they should not be surcharged to that extent. None of them have submitted their representation, accordingly the third respondent in his order dated 17.3.1988 has passed final orders directing them to make good the amount mentioned. Aggrieved by the surcharge proceedings the petitioner preferred an appeal before the third respondent tribunal and the same has been rightly confirmed. It is also stated that copy of the enquiry report was not furnished to the petitioner, since he has not demanded the same. It is also contended that, in as much as the surcharge order was passed by the Deputy Registrar on the basis of the records and confirmed by the tribunal the third respondent herein, there is no merit in the writ petition and prayed for dismissal of the same.

4. In the light of the above factual position, I have heard the learned counsel appearing for the petitioner as well as the learned Government Advocate for respondent 1 and 3.

5. Mrs.N.Mala, learned counsel appearing for the petitioner after taking me through the orders passed by the respondent 1 and 3 has raised the following contentions:

(i) The first respondent fails to furnish a copy of the claim petition and enquiry report, accordingly the ultimate order passed by the first respondent dated 17.3.1988 is vitiated;

(ii) In the absence of any allegation or breach of trust or misappropriation of the funds of the Society, mere negligence would not attract Sec.71 of the Tamil Nadu Co-operative Societies Act (T