Judgment:
(Prayer: Writ Appeal filed under Clause 15 of Letters Patent Appeal against the order passed this Court in W.P.(MD) No.11820 of 2014 dated 11.09.2014.
Writ Appeal filed under Clause 15 of Letters Patent Appeal against the order passed this Court in M.P.(MD) No.1 of 2014 in W.P.S.R.(MD) No. 61985 of 2014 dated 13.10.2014.
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus forbearing the respondents, their men, 5 agents and officials from conducting any enquiry in respect of the similar nature of complaints which were already dropped by the fourth respondent by his report in Na.Ka.No.4731/A2/2011 dated 23.12.2011 on the complaint of P.Neela dated 13.11.2011 and the report dated 13.12.2011 in Na.Ka.No. 4732/A2/2011 on the complaint of G.Rathnakumar, dated 14.11.2011 and the report dated 13.12.2011 in Na.Ka.No.4752/A2/2011 on the complaint of R.Sivaprakasam dated 09.11.2011 also on the basis of the order passed by the fourth respondent in his Proc.Na.Ka.No.11649/A2/2001, dated 29.10.2004 and the order of the first respondent in his Proc.Pa.Mu.No. 3913/I1/2007 dated 02.05.2008.
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari calling for the records on the file of the second respondent in connection with the impugned Enquiry Report submitted by him in his proceedings Na.Ka.No.5041/A2/2014 dated 26.02.2015 and quash the same.)
Common Judgment
C.T. Selvam, J.
1. Appellant in W.A.(MD) No.1130 of 2014 is the Karanthai Tamil Sangam (hereinafter referred to as Sangam ). The Inspector General of Registration under proceedings No.32789/I3/2014 dated 15.07.2014 directed enquiry u/s.36(1) of the Tamil Nadu Societies Act by the Assistant Inspector General of Registration. Forwarding a copy thereof as also that of the original complaint received against the Sangam, the second respondent under proceedings in Na.Ka.No.5041/Aa2/2014 dated 17.07.2014 called for response from the Sangam, on 18.07.2015. Challenging the same, the Sangam preferred W.P.(MD) No.11820 of 2014 seeking quash of such proceedings. Such writ petition was dismissed under orders of the learned Single Judge dated 11.09.2014. Aggrieved, the Sangam has preferred W.A. (MD) No.1130 of 2014.
2. Informing the dismissal of W.P.(MD) No.11820 of 2014, that in the affidavit in support of such writ petition, the preference of false complaints, conduct of enquiry pursuant thereto and reports therein repeatedly having found no wrong doing on the part of the Sangam that the petitioners are members of the Sangam who had not been put on notice or been called for enquiry and that the second respondent inimically was disposed towards the Sangam and its members, W.P.(MD) No.19846 of 2014 stands filed seeking a writ of mandamus forbearing the respondents, their men, agents and officials from conducting any enquiry in respect of similar nature of complaints which were already dropped by the fourth respondent. Stay of the order under appeal was sought.
3. At the stage of admission in W.A.(MD) No.1130 of 2014, this Court had directed that the enquiry being conducted by second respondent shall go on and no final decision shall be taken by second (sic first) respondent till further orders are passed by this Court.
4. Upon being informed that the enquiry stood completed and report had been made ready, this Court had directed learned Additional Government Pleader to file a copy of the report in a sealed cover for purposes of court perusal. Under orders dated 21.12.2015, this Court inter alia directed the Deputy Inspector General of Registration to furnish copies of enquiry report upon the written request made by concerned parties, at their cost. The members of the Sangam/ petitioners in W.P.(MD) No.19846 of 2014 have preferred W.P.(MD) No.2717 of 2016 seeking quash of the Enquiry Report submitted by the Assistant Inspector General of Registration in his proceedings in Na.Ka.No.5041/A2/2014 dated 26.02.2015.
5. In preferring W.P.(MD)No.19846 of 2014, petitioners therein sought permission to join together and to file a single writ petition and the same came up for consideration in M.P.(MD)1 of 2014 in W.P.(MD)No.SR 61985 of 2014. The order therein dated 13.10.2014 reads thus:
MP (MD) No.1 of 2014 is ordered on payment of separate court fee.
2. Mr.R.Singgaravelan, learned counsel for the petitioners fairly submitted before this court that the petitioners have no hesitation or grievance to face any enquiry whatsoever, if the scope of subsequent enquiry is not related to the previous enquiry, upon which three enquiry reports dated 23.12.2011 respectively, have already been made in favour of the petitioners. The said submission is recorded. However, he has again stated that the impugned notice without carrying any specific allegation should not be allowed to remain, as the respondents under the guise of enquiry, are again going to put the petitioners in embarrassment, inconvenience, mental agony etc.
3. A perusal of the impugned notice does not reflect on what charge and allegation, the respondents have proceeded to hold enquiry. Therefore, this Court is inclined to direct the respondents to maintain status-quo, since the enquiry reports mentioned supra have clearly indicated that there is no room for enquiry. Hence, the respondents are directed to maintain status-quo as on today, until further orders.
4. Notice to the respondents returnable in three weeks. Private notice is permitted.
W.A.(MD) No.1428 of 2014 is preferred against such order.
6. We have heard Mr.M.Ajmal Khan, learned senior counsel appearing on behalf of counsel for the Sangam, Mr.K.Chellapandian, learned Additional Advocate General assisted by Mr.A.K.Bhaskarapandian, learned Special Government Pleader for the State and Mr.G.Thalaimutharasu, learned counsel for respondents 1 to 10 in W.A.(MD) No.1428 of 2014 and Mr.D.Selvanayagam, learned counsel for petitioners in W.P.(MD) Nos.19846 of 2014 and 2717 of 2016.
7. Mr.M.Ajmal Khan, learned senior counsel, submitted that though the proceedings of first respondent in No.32789/I3/2014 dated 15.07.2014 informed of his taking suo motu action, the position was otherwise. The same was in response to a complaint of the same date from one Arivudai Nambi. The Sangam had been put to much harassment by complaints of similar nature. Earlier complaints had resulted in four enquiries in 2011 which in turn had resulted in findings that there was no wrong doing in the activities of the Sangam. Section 36 of the Tamil Nadu Societies Registration Act (hereinafter referred to as 'Act') permitted causing of an enquiry only by the Registrar. Section 37 thereof deals with cancellation of registration by the Registrar. Learned senior counsel contended that the first respondent is required to act in keeping with and in the manner informed in sections 36 and 37 of the Act. He has acted at the instance of an office bearer of the ruling party and the proceedings are informed to be 'suo motu' only as a camouflage. The exercise of power u/s.36 of the Act was quasi judicial in nature. A bare perusal of the proceedings in No.32789/I3/2014 dated 15.07.2014 reveals that the same had been embarked upon without subjective satisfaction of the first respondent. In the absence of any material having been placed before him, the order suffers from nonapplication of mind. The initiation of proceedings is illegal.
8. Learned senior counsel relied on the decision in Mohan Sharma v. The District Registrar (Administration), The South Indian Film Chamber of Commerce and another [2009 (4) CTC 652] to submit that therein it had been held that the 'Registrar ought not to have acted on the representation made by the third respondent since Section 36 of the Act enumerates that the Registrar may, of his own motion, or on the Application of the majority of the members of the committee or on the Application not less than one-third of the members of the society, is empowered to hold or direct some other authorised person to hold an enquiry into the constitution, working and financial condition of the society.'
9. Learned senior counsel referred to decision in The Chennai Kancheepuram Thiruvallur Districts Film Distributors Association represented by its Secretary v. The District Registrar, Central Madras and othrs [MANU//TN/0787/2008], wherein the observation that for the Registrar holding an enquiry on his own, some information must come to his possession either from the external or from the internal sources, which on an object appraisal, may necessitate an enquiry as statutorily prescribed, is made.
10. Learned senior counsel relied on the decision in Barium Chemicals Ltd. and another v. Company Law Board and others [AIR 1967 SC 295] to submit that a Constitutional Bench of the Supreme Court had held that where an authority exercises statutory power without applying his mind, such act would not be bonafide exercise of power.
11. Learned senior counsel submitted that through the counter and documents filed in a typed set, the respondents sought to inform reasons for sustaining the order under challenge. Learned senior counsel referred to the decision in Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others [1978 (1) SCC 405], wherein the Supreme Court has held thus:
8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Commissioner of Police, Bombay v. Gordhandas Bhanji [AIR 1952 SC 16]:
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older.
12. Learned senior counsel contended that in the impugned order, the first respondent had spoken of pendency of enquiries and cases relating to putting of buildings by the Sangam on poramboke land. Such cannot be a reason for initiation of proceedings under section 36 of the Act as the same empowered a Registrar to hold an enquiry only in respect of the constitution, working and financial condition of a registered society. Contending that the reason informed for initiation of proceedings was not germane to the issue, learned senior counsel referred to the decision in Somesh Tiwari v. Union of India and others [2009 (2) SCC 592], wherein the Supreme Court has held thus:
16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.
21. For appreciating the effect of such an order, we may also notice the order dated 19.10.2005 which has been reproduced by the High Court in its impugned judgment, the relevant portion whereof reads thus:
2. As per Para 9.1 of the New Transfer Policy, the Government may, if necessary in public interest, transfer or post any officer to any station or post. Para 9.2 of the policy stipulates that an officer against whom the CVC has recommended initiation of vigilance proceedings, should not normally be posted or remain posted at the station where the cause of the vigilance proceedings originated. He shall also not be posted on a 'sensitive' charge. This restriction will remain in operation till such time the vigilance matter is not closed.
3. In the case of Shri Tiwari, he belongs to Madhya Pradesh and on enquiry into complaint of working on caste biased ideology he was to be over dependent upon a set of officers, apparently giving an impression that he (is) working on caste biased ideology. These circumstances have necessitated his transfer from Bhopal Central Excise Commissionerate to Shillong Commissionerate.
No vigilance enquiry was initiated against him. The order of transfer was passed on material which was non-existent. The order, therefore, not only suffers from total non-application of mind on the part of authorities of Respondent 1, but also suffers from malice in law.
13. Towards impressing the need to inform reasons for a decision and the manner in which they are to be informed, learned senior counsel relied on the decision in Kranti Associates Private Limited and another v. Masood Ahmed Khan and others [2010 (9) SCC 496]:
47. Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasijudicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional goverance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinion these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to 18 demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or rubber-stamp reasons is not to be equated with a valid decision-making process.
(m)It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decisionmakers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [1987 (100) Harvard Law Review 731-37].
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Sain [1994 (19) EHRR 553], at 562 para 29 and Anya v. University of Oxford [2001 EWCA Civ 405 (CA)], wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, adequate and intelligent reasons must be given for judicial decisions .
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of due process .
14. Towards informing that the second respondent, who had been directed to conduct the enquiry, was inimically disposed towards the Sangam, the counter affidavit filed by him in W.P.(MD) No.11820 of 2014 was referred to and particularly, the following therein:
6. e) ... Apart from the allegations referred above, various irregularities in the administration, of the educational institutions like College, School and I.T.I. etc, financial misuse by way of tampering of records, falsification of accounts, forgery, embezzlement and misappropriation of funds would be brought to light only if the Department is permitted to proceed the enquiry under Section 36(1) of the Act, in the interests of saving a prominent society and the various institutions besides the members.
8. It is further submitted that if the petitioner is with clean hands why he is shy to face an enquiry and why he is not willing to produce the book accounts and other documents for the perusal of the Enquiry Officer. If the present Secretary is having a good track record and not swindled the money of the Society he can very well participate in the enquiry and prove his innocence very well. Having his own doubt, the present Secretary filed the present writ petition to avoid the possible enquiry which may brought many more swindling and siphoning money from the Society.
15. Mr.K.Chellapandian, learned Additional Advocate General, took this Court through Section 36 of the Act to explain the eventualities in which a Registrar could cause an enquiry thereunder. Referring to a huge typed set of papers which contain newspaper reports, pamphlets and posters of agitations, learned Additional Advocate General submitted that much was wrong with the affairs of the Sangam and very many had been wronged thereby. He contended that where the Registrar acted suo motu, it was not open to anyone to require him to produce material in support of his decision. The entire funds of the Sangam had been misappropriated by the Secretary. The entire control thereof is held by him and his family members and the Sangam is being run as a private concern. This Court had permitted the enquiry to go on which now stood concluded. It was for the first respondent to decide thereon, in keeping with Section 36 of the Act.
16. Learned Additional Advocate General contended that the appellants had not taken the ground of malice in W.P.No.11820 of 2014 nor made submissions before the learned Single Judge there regards. Hence, it would not be open for them to now urge malice against them. Learned Additional Advocate General further submitted that despite finding of wrong doing in an earlier enquiry, particularly, that accounts had not been submitted to the General Body, the enquiry officer under report dated 23.12.2011 had observed that the wrong doings were minor in nature towards setting right of which directions could be issued. Learned Additional Advocate General submitted that enquiry stands conducted. In such circumstances, W.A.No.1130 of 2014 does not survive.
17. On careful consideration of the rival submissions, our findings and reasons therefor are as hereunder:
(i) Learned Additional Advocate General has referred to very many press articles, reports and complaints against the functioning of the Sangam and the conduct of its affairs. We are not to be understood as saying that the order of the Registrar may be supplemented by fresh reasons through materials produced by learned Additional Advocate General as the decision in Mohinder Singh Gill's case informs that such course would be impermissible. However, it cannot be said with any definiteness that the Registrar was not aware of the same. If a question whether the same can arouse the concern of the Registrar towards directing an enquiry u/s.36 of the Act is raised, the answer would have to be in the affirmative. We would go to the extent of informing that if a Registrar was of the view that causing a suo motu enquiry on random basis in respect of one or more societies under his purview would be to the general benefit of proper functioning of the Societies there within, it should be open to him to enter upon such exercise. Where a Society to plead malice in such an Act of the Registrar, it would be for them to prove the same. Merely that a complaint of an individual has engaged the attention of the Registrar in his deciding upon an enquiry u/s.36 of the Act, would not make the decision any less suo motu.
(ii) We have perused the enquiry reports of the year 2011 pressed into service on behalf of petitioners for the prayer in W.P.(MD) No.19846 of 2014 seeking forbearance from conduct of enquiry in respect of 'similar nature of complaints' which had resulted in dropping of proceedings. We find no justification in the plea that matters earlier looked into are being probed again. W.P.(MD) No.19846 of 2014 would fail for the simple reason that if the prayer of omnibus forbearance from enquiry into 'complaints of similar nature' is to be granted, the same would amount to providing a shield against the very purpose of and laudable intent behind Section 36 of the Act of ensuring that Societies conduct themselves towards advancing the purpose for which they are formed and against indulging in wrong doing under a cloak of disguise. We are constrained to note that the observations made whilst considering the Section 2B application in M.P.(MD) No.1 of 2014 in W.P.S.R.(MD) No. 61985 of 2014 were not necessary at such stage.
(iii) We accept the submission of learned Additional Advocate General that the question of malice having not been pleaded or raised before the learned single Judge in W.P.No.11820 of 2014, cannot be permitted to be raised in W.A.No.1130 of 2014. We may refer to the submission of learned senior counsel for appellant that complaints against the Sangam of putting up constructions on poramboke land would not justify action of the Registrar u/s.36 of the Act since thereunder enquiry could ensue only in respect of constitution, working and financial condition of the registered society. It is to be noted that Section 38 of the Act provides for enquiries on unlawful activities with the notable distinction that while u/s.36 of the Act, a Registrar can delegate the power of enquiry, u/s.38 thereof, he cannot. In the facts of the instant case, we may, in fact, read lack of malice in the inaction of Registrar u/s.38 of the Act.
(iv) A perusal of the counter affidavit filed by second respondent reveals that he suffers a predilection to hold the petitioner Sangam guilty of much wrong doing. It is unbecoming of an enquiry officer to raise questions such as 'if the petitioner is with clean hands why he is shy to face an enquiry and why he is not willing to produce the book accounts and other documents for the perusal of the Enquiry Officer. If the present Secretary is having a good track record and not swindled the money of the Society he can very well participate in the enquiry and prove his innocence very well. Having his own doubt, the present Secretary filed the present writ petition to avoid the possible enquiry which may brought many more swindling and siphoning money from the Society.' Clearly, it would be unsafe to entrust enquiry ordered by the Registrar in his hands.
In view of the above reasoning, this Court would order as follows:
(i) W.A.(MD) No.1130 of 2014 shall stand dismissed.
(ii) W.A.(MD) No.1428 of 2014 shall stand allowed with the effect that the observations and order in paragraph No.3 in M.P.(MD) No.1 of 2014 in W.P.S.R.(MD) No.61985 of 2014 shall stand quashed.
(iii) W.P.(MD) No.19846 of 2014 shall stand dismissed.
(iv) W.P.(MD) No.2717 of 2016 shall stand allowed.
Consequently, a direction is issued to the Inspector General of Registration to appoint an enquiry officer afresh, pursuant to his suo motu action dated 15.07.2014. Such officer shall be required to conduct enquiry, complete the same and file his report within one month from the date of receipt of this order. The Sangam shall co-operate with the enquiry and by way of reiteration, this Court would inform the powers of the enquiry officer to act u/s.36 (6, 7 and 8) of the Act. No costs. Consequently, connected miscellaneous petitions are closed.