IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.M. SHAFFIQUE MONDAY,THE 15TH DAY OF JULY2013/24TH ASHADHA, 1935 WP(C). No. 9919 of 2012 (L) --------------------------- PETITIONER: ------------------ A.V. RAVEENDRAN NAIR, AGED 6 YEARS SANNIDHANAM, THANNEERMUKKOM P.O., CHERTHALA ALAPPUZHA DISTRICT. BY ADV. SRI. P.N. MOHANAN RESPONDENTS: ---------------------- 1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) ALAPPUZHA DISTRICT-688 001.
2. SECRETARY TO GOVERNMENT CO-OPERATIVE DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695 001.
3. THE KAINADY SERVICE CO-OPERATIVE BANK LTD. NO.3814, REPRESENTED BY SECRETARY ALAPPUZHA DISTRICT-688 001.
4. PRINCIPAL AGRICULTURAL OFFICER OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICE ALAPPUZHA-688 001. BY ADV. SRI. P.C. SASIDHARAN BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-07-2013 ALONG WITH WP(C) NO. 25475 OF 2012.THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C). No. 9919 of 2012 (L) APPENDIX PETITIONER'S EXHIBITS:- EXT. P1 - COPY OF THE NOTICE DATED 06 02.2001 OF THE 4TH RESPONDENT. EXT. P2 - COPY OF THE COMMUNICATION DATED 26 08.2008 OF THE STATISTIC DEPARTMENT OBTAINED UNDER RIGHT TO INFORMATION ACT REGARDING THE MARKET PRICE OF PADDY. EXT. P3 - COPY OF OF THE PAPER NOTIFICATION PUBLISHED IN MALAYALA MANORAMA DAILY DATED 05 07.2011. EXT. P4 - COPY OF THE NOTIFICATION DATED 06 01.2001 OF THE GOVERNMENT PUBLISHED IN THE GAZETTE. EXT. P5 - COPY OF THE COMMUNICATION DATED 06 06.2003 OF THE DISTRICT COLLECTOR, ALAPPUZHA. EXT. P6 - COPY OF THE NOTICE DATED 21 02.2004 OF THE JOINT REGISTRAR. EXT. P7 - COPY OF THE NOTICE DATED 07 06.2005 ORDERING SECTION 6 ENQUIRY. EXT. P8 - COPY OF THE NOTICE DATED 06 09.2005 OF THE ENQUIRY OFFICER. EXT. P9 - COPY OF THE EXPLANATION OF SMT. AMBIKAKUMARI. EXT. P10 - COPY OF THE REPORT OF THE ENQUIRY OFFICER DATED 31 10.2005. EXT. P11 - COPY OF THE NOTICE DATED 29 12.2005. EXT. P12 - COPY OF THE NOTIE DATED 03 04.2007. EXT. P13 - COPY OF THE LETTER DATED 16 04.2007 WITH ACKNOWLEDGMENT RECEIPT. EXT. P14 - COPY OF THE ORDER DATED 28 12.2007 OF THE JOINT REGISTRAR. EXT. P15 - COPY OF THE NOTICE DATED 24 03.2008 OF THE JOINT REGISTRAR. EXT. P16 - COPY OF THE LETTER DATED 21 04.2008 ALONG WITH ACKNOWLEDGMENT DUE. (CONTD........) WP(C). No. 9919 of 2012 (L) 2 EXT. P17 - COPY OF THE ORDER DATED 10 02.2012 OF THE JOINT REGISTRAR. EXT. P18 - COPY OF THE REPORT DATED 23 01.2003 OF THE 4TH RESPONDENT. EXT. P19 - COPY OF THE AUDIT REPORT OF THE YEAR 2005 2006. EXT. P20 - COPY OF THE ORDER DATED 04 02.2010 IN APPEAL. RESPONDENTS' EXHIBITS:- NIL //TRUE COPY// P.A. TO JUDGE sp A.M.SHAFFIQUE, J * * * * * * * * * * * * * W.P.C.No.9919 of 2012 and 25475 of 2012 ---------------------------------------- Dated this the 15th day of July 2013 JUDGMENT
Petitioner is one of the legal heirs of Smt.N.S.AmbikaKumari who died on 19/04/2006 while working as Secretary of the Kainady Service Co-operative Bank. Writ petitions are filed challenging the surcharge proceedings taken against her by way of Exts.P14 and P17. In fact, Ext.P14 had been set aside by an order passed by the Lok Ayuktha and fresh orders were passed as per Ext.P17. By the impugned order, the Joint Registrar had confirmed the demand made in terms of Ext.P14 and an order had been passed to impose surcharge on the office bearers of the Managing Committee as well as the Secretary of the Bank, Smt.Ambika Kumari during the relevant time. The amount imposed as surcharge on Smt.Ambika Kumari is Rs.59,181.80/- and Rs.21,176.70/- with interest at the rate of W.P.C.No.9919 of 2012 and 25475 o”
2. 18% per annum from 31/03/2002.
2. W.P.C.No.25475 of 2012 is filed claiming the amounts legally due to Smt.Ambikakumari as the same was not paid after a lapse of 6= years from the date of her death.
3. As far as surcharge proceedings are concerned, the reason for imposing surcharge was to compensate the loss suffered by the bank on account of procurement of paddy during the year 2001-2002. An enquiry was conducted under Section 65 of the Co-operative Societies Act and it was found that due to the negligence or failure on the part of the Managing Committee members and the Secretary, huge loss had been caused to the bank. It was found that the paddy procured were kept in a private godown without any insurance coverage and sufficient protection was not provided. As a result, due to flood during monsoon season, the paddy became damaged and it could be sold only at a lesser rate than the procured rate. It is W.P.C.No.9919 of 2012 and 25475 o”
3. found that if the paddy procured was sold in time, no loss would have been caused and no steps were taken to ensure the protection of paddy on account of such calamities.
4. Respondents 1 and 3 have filed counter affidavit supporting the stand taken by the departmental authorities. According to them, it is after conducting a proper enquiry into the matter that the surcharge proceedings were initiated and the findings had been arrived at after giving necessary opportunity to all concerned. It is also contended that this Court cannot adjudicate on such issues by invoking the jurisdiction under Article 226 of the Constitution of India.
5. In regard to the claim for the benefits that Smt.Ambikakumari was entitled for, there is dispute between the parties regarding the actual amount payable as evident from the statement annexed along with the counter affidavit filed in that case. It is not in dispute that the amounts legally due to the legal heirs of Smt.Ambikakumari has not been paid so far. According to the counter affidavit W.P.C.No.9919 of 2012 and 25475 o”
4. filed by respondents 1 and 2, as against Rs.5,37,923/- payable as terminal benefits the total liability is Rs.4,89,955.50/-. In the counter affidavit filed by the Assistant Registrar of Co-operative Societies it is stated that the petitioner's eligibility was for Rs.5,27,261/- and the liabilities would come to Rs.3,87,398.50/- and only the balance amount of Rs.1,39,862.50/- is due to the legal heirs of Smt.Ambikakumari. Apparently, there is dispute between the parties in relation to the amounts actually payable.
6. If W.P.C.No.9919 of 2012 is disposed of, the issue regarding surcharge obligation would become final. The surcharge proceedings was taken in respect of procurement of paddy in the year 2001-2002. The petitioner's wife died on 19/04/2006. The surcharge proceedings were initiated only as per Ext.P6 notice dated 21/02/2004. Ext.P7 is the notice dated 07/06/2005 ordering proceedings under Section 68 of the Co-operative Societies Act. Ext.P9 is the reply given by Smt.Ambikakumari. Even before finalisation of the W.P.C.No.9919 of 2012 and 25475 o”
5. proceedings she died due to cardiac arrest on 19/04/2006. Thereafter the proceedings continued as against the petitioner. The main contention urged by the petitioner is that similar loss was suffered by six other co-operative banks. It is the policy of the Government to procure paddy during the relevant time and all the banks had paid a higher price. In respect of the other banks the loss suffered are written off and only in respect of the 3rd respondent that surcharge proceedings had been initiated.
7. Though an appellate remedy is available, according to the petitioner, since the Managing Committee had filed an appeal which came to be rejected no useful purpose will be served in filing a statutory appeal. The fact that loss had been suffered due to flood, according to the petitioner, cannot be disputed. Enough space was not available in approved godowns for procuring paddy and therefore paddy had to be stored in private godowns for which the insurance company was not willing to provide W.P.C.No.9919 of 2012 and 25475 o”
6. necessary coverage. There was no other portion for the Secretary or any other person involved other than to procure and store paddy in private godowns.
8. In that view of the matter, it was contended that there was no reason to impose any surcharge on the Secretary who is only an Executive Officer. At any rate, it was contended that the claim for interest at the rate of 18% is fabulous and there is no rationale in charging interest on the said surcharge especially when the proceedings were taken at a very late stage and the delay, if any, had occurred only on the part of the department.
9. Having regard to the fact that the surcharge proceedings were initiated on the basis of an enquiry conducted by the Assistant Registrar and the authority has passed the order after hearing the petitioner and earlier by considering the objection raised by his wife, I do not think that there is any justifiable reason to interfere with the surcharge imposed on the petitioner's wife. However, as W.P.C.No.9919 of 2012 and 25475 o”
7. regards the claim for interest, one has to verify whether there is any statutory obligation on the part of the petitioner to pay the interest. The surcharge proceedings were initiated as per notice Ext.P7 dated 07/06/2005 and the petitioner's wife expired on 19/04/2006. The incident which related to the surcharge proceedings happened during 2001- 2002. When Ext.P14 order came to be issued by the time Smt.Ambikakumari expired, the interest is charged from 31/03/2002 which had given rise to a fabulous claim.
10. Having regard to the fact that the proceedings were initiated only after an enquiry conducted in terms of Ext.P6 dated 21/02/2004, I am of the view that the liability to pay interest can be limited from 21/02/2004 alone. That apart, the rate of interest claimed is at the rate of 18% per annum which is under the circumstances, unreasonable. Hence, I am inclined to reduce the interest charged as per Ext.P14 in respect of the petitioner at 12% per annum from 21/02/2004. But the liability to pay interest has to be W.P.C.No.9919 of 2012 and 25475 o”
8. confined only till the date of death of Smt.Ambikakumari that is on 19/04/2006, that is the date on which her legal heirs were entitled to receive the service benefits. But apparently the surcharge proceedings were pending and recovery could have been made only on the date of Ext.P14 that is 28/12/2007. Hence the liability to pay interest at the rate of 12% per annum is limited from 21/02/2004 till 28/12/2007. To that extent, Exts.P14 and P17 are liable to be interfered with.
11. In regard to the amounts payable to the petitioner as legal heirs of Smt.Ambikakumari, all such amounts were payable or adjusted as on 19/04/2006, the date of her death. But, apparently, it is on account of the pendency of the surcharge proceedings that the same has not been done. Therefore, the adjustment of accounts had to take place on the date of Ext.P14 that is 28/12/2007 the date on which legal heirs of Smt.Ambikakumari became entitled for the service benefits. The petitioner is therefore entitled for W.P.C.No.9919 of 2012 and 25475 o”
9. interest on the amounts payable at 12% per annum, starting from three months from 28/12/2007 i.e from 28/03/2007 till the date of actual payment.
12. The next question is regarding the amounts actually payable to the petitioner. The statement of accounts produced by the petitioner, respondents 1 and 2 bank and Government differs in certain respects. Having found that the bank is not entitled to recover the entire amount of interest as claimed in the surcharge proceedings the statement of account can be provisionally fixed as per the affidavit given by the 4th respondent as under: Surcharge amount (1) = Rs.59,181.80 Surcharge amount (2) = Rs.21,176.70 Interest on (1) and (2) at 12% per annum from = Rs.24,675.00 07/06/2005 till 28/12/2007 PF loan = Rs.75,000.00 Interest on PF loan = Rs.44,063.00 RD loan = Rs. 7,500.00 Interest on RD loan = Rs. 3,675.00 W.P.C.No.9919 of 2012 and 25475 o”
10. Treasury deposit omission as per audit report = Rs.10,000.00/- Interest on treasury deposit Omission = Rs. 6,300.00 ------------------------ Total = Rs.2,51,571.50 ========== 13. According to the Government, the total amount payable to the legal heirs is Rs.5,27,261/-. Hence the balance amount payable would come to Rs.2,75,689.50/- as on 28/12/2007.
14. Having regard to the aforesaid factual situation, I am of the view that without prejudice to the contentions regarding the various claims raised by he petitioner, the bank is liable to pay the aforesaid amount of Rs.2,75,689.50 with interest at 12% per annum from 28/03/2008 on admitted facts and on the basis of the finding in regard to the claim for interest on the surcharge amount and my findings in W.P.C.No.9919 of 2012. Accordingly, these writ petitions are disposed of as follows: W.P.C.No.9919 of 2012 and 25475 o”
11. i) In W.P.C.No.9919 of 2012 while upholding the surcharge imposed on the petitioner, the liability of interest is reduced to 12% per annum from 07/06/2005 till 28/12/2007. ii) W.P.C.No.25475 of 2012 is disposed of as follows: a) Respondents 1 and 2 bank shall pay the petitioner an amount of Rs.2,75,689.50/- (Rupees two lakhs seventy five thousand six hundred and eighty nine and paise fifty only) with interest at the rate of 12% per annum from 28/03/2008 till the date of actual payment. b) That if the petitioner has a case that the entitlement and liability stated by the Government in their counter affidavit which is stated above is not correct, it shall be open for them to approach the Arbitration Court for recovering any such amount which they are entitled to in excess of what is stated above. W.P.C.No.9919 of 2012 and 25475 o”
12. c) The aforesaid amount shall be paid by the respondent Bank within a period of one month from the date of receipt of a copy of this judgment. (sd/-) (A.M.SHAFFIQUE, JUDGE) jsr W.P.C.No.9919 of 2012 and 25475 o”
13. W.P.C.No.9919 of 2012 and 25475 o”
1.