The court emphasized that participation in legal proceedings is essential for claiming natural justice, and failure to engage actively negates claims of prejudice.

ORDER :

(C.V. KARTHIKEYAN, J.)

This Writ Petition has been filed in the nature of a Certiorarified Mandamus seeking records relating to Surcharge Award No. Na.Ka.3262/2008.Sa.Pa passed on 15.05.2023 on the file of the 1^st respondent and to quash the same. The petitioners claim that the order had been passed violating the principles of natural justice against the provisions of Tamil Nadu Cooperative Societies Act, 1983 . The petitioners seek removal of attachment over the immovable properties of the petitioners.

2.In the affidavit filed in support of the writ petition, the petitioners who are the legal heirs of Annadurai who was the Secretary of the 2^nd respondent, Cooperative Society, have claimed that a report had been filed under Section 81 of the Tamil Nadu Cooperative Societies Act 1983, whereby, it had been found that the husband of the 1^st petitioner / father of the 2^nd and 3^rd petitioners and another individual one Ramasamy had been involved in misappropriation of the funds of the society. Surcharge proceedings under Section 87(1) of the Act was recommended to be initiated. Apart from that, criminal proceedings were also initiated against the said Annadurai / husband of the 1^st petitioner, father of the 2^nd and 3^rd petitioners. It is therefore contended that Surcharge Proceedings under Section 87(1) of the Act had commenced by issuing notice.

3.The grievance raised by the learned counsel for the petitioners is that no sufficient opportunity had been granted to the petitioners. It had also been stated that witnesses whose statements had been relied in the enquiry were not examined during the Surcharge Proceedings. It is also contended that therefore, the petitioners did not have an opportunity to cross-examine the witnesses. It is therefore contended that, if opportunity is granted, the petitioners would be able to make out a case during the Surcharge Proceedings.

4.In this connection, the learned counsel for the petitioners placed reliance on the order of a learned Single reported in 2014 (2) CWC 615 , D.Sathyamoorthy Vs. The Deputy Registrar of Cooperative Societies, Uthakamandalam and 2 others, wherein, the learned Single Judge had held as follows:

“8. Now comes the crucial provision contained in Section 87 of the Act. A plain reading of Section 87 would make it abundantly clear that a surcharge proceeding under Section 87 shall be initiated on the basis of audit under Section 80 or inquiry under Section 81, or inspection or investigation under Section 82, or inspection of books under Section 83 or winding up of the society. Therefore, it is crystal clear that for initiation of a surcharge proceeding under Section 87 of the Act, a report submitted under Section 80 or under Section 81 or under Section 82 or under Section 83 is the foundation. The actual adjudication happens only in the surcharge proceeding under Section 87 of the Act. That is the reason why, Section 87 makes it mandatory that before making an order in the surcharge proceeding a reasonable opportunity should be given to the persons concerned. It is only at this stage, witnesses are examined and documentary evidences are tendered and the persons against whom surcharge proceeding has been initiated is allowed to cross examine the witnesses if he so wishes and also to lead evidence on his side, both oral and documentary. Section 87(4) of the Act also makes it clear that the officer who conducts surcharge proceeding shall have all the powers of the civil court in respect of matters enumerated therein such as, summoning and enforcing attendance of any person and examine him on oath; requiring the discovery and production of any document; reception of evidence on affidavits; requisitioning any public record from any court or office; and issuing commission for examining of witnesses. Any award passed under Section 87 of the Act is appealable to the Cooperative Tribunal under Section 152 of the Act. The award could be executed like a civil court decree under Chapter