Mandava Laxmana Rao Vs. Primary Agricultural Co-operative Society and ors. - Court Judgment

Excerpt:
- - 2. the first and fore-most important contention raised by sri movva chandrasekhara rao, learned counsel for the petitioner is that the initiation of the proceedings under section 51 of the andhra pradesh co-operative societies act vii of 1964 (the act) itself is bad, illegal and void in law as the said order was passed without satisfying any one of the ingredients of that section. so none of the grounds mentioned in section 51 of the act were satisfied making a ground to initiate the enquiry proceedings in question. in this view of mine, i feel that the proceedings were not properly conducted in accordance with the rules and also are in clear violation of the proviso appended to section 60(1) of the act, which clearly says that no order shall be passed against any person unless he has been given an opportunity of making his representation.y.v. narayana, j.1. challenging the legality and validity of the order of the deputy registrar, co-operative society, mahaboobabad (the third respondent herein) dated 17-10-1986 as confirmed by the order dated 30-12-1988 in c.t.a. no. 3 of 1986 by the appellate tribunal, narasampet (the learned munsif-magistrate, narasampet - the fourth respondent herein), mandava laxmana rao, the writ petitioner filed this writ petition to call for the records relating to and connected with rc. no. 1283 /85-c of the third respondent and quash the same, raising the following contentions.2. the first and fore-most important contention raised by sri movva chandrasekhara rao, learned counsel for the petitioner is that the initiation of the proceedings under section 51 of the andhra pradesh co-operative societies act vii of 1964 (the act) itself is bad, illegal and void in law as the said order was passed without satisfying any one of the ingredients of that section. to appreciate this contention it is necessary to read section 51 of the act, which is to the following effect.'the registrar may, of his own motion and shall, on the application of a society to which the society concerned is affiliated, or of not less than one- third of the members of the committee, or of not less than one-fifth of the total number of members of the society, hold an enquiry or direct some person authorised by him by an order in this behalf to hold an enquiry into the constitution, working and financial condition of a society. such enquiry shall be completed within a period of four months from the date of commencement of the enquiry and the report of enquiry along with the findings of the registrar thereon shall be placed before the next general meeting of the society:'as per the above section the inquiry may be held on the following grounds, viz., (1) the registrar's own motion i.e. suo motu; (2) on the application of a society to which the society concerned is affiliated or of not less than one-third of the members of the committee; (3) or of not less than one-fifth of the total number of members of the society. in the present case admittedly the inquiry proceedings were initiated basing on the application of one of the members of the first respondent society dated 23-6-1985 submitted to the hon. minister for co-operation requesting him to order an enquiry into the affairs of the first respondent society with special reference to the misappropriation of the funds of the said society by the petitioner herein, on which the hon. minister ordered enquiry, andthe special grade deputy registrar/district co-operative officer, warangal on the next day itself i.e. on 24-6-1985 authorised the deputy registrar/officer on special duty, district co-operative central bank ltd., warangal to conduct the enquiry in the said alleged misappropriation of funds of the first respondent society. so admittedly the inquiry proceedings were not initiated suo motu by the registrar as it was done under the directions of the hon. minister on the application. neither one-third of the members of the committee nor of not less than one-fifth of the total number of members of the society made an application to the registrar making allegations against the petitioner about the alleged misappropriation of the funds of the first respondent-society. so none of the grounds mentioned in section 51 of the act were satisfied making a ground to initiate the enquiry proceedings in question. i see some force in the contention of sri movva chandrasekhara rao, learned counsel for the petitioner that the initiation of the proceedings is ab initio void as no just or reasonable grounds are made out attracting the provisions of section 51 of the act.3. sri movva chandrasekhara rao, learned counsel next contended that the enquiry proceedings were not properly and validly conducted; hence it is irregular and improper and so the same has to be quashed. from the record it can be seen that the petitioner engaged an advocate and gave vakalat to him on 17-9-1986 and requested time for filing objections. the case was posted to 1-10-86 for filing objections. on 22-9-1986, after inspecting the documents, the learned counsel appearing for the petitioner before the enquiry officer filed an application to summon the paid secretary of the first respondent society and the supervisor of co-operative central bank, warangal for cross-examination. no orders were passed on that application. on 1-10-86 the learned counsel for the petitioner filed an application before the enquiry officer seeking adjournment as he was engaged in some other court. without granting time for filing the objections on behalf of the petitioner and without hearing the arguments of the counsel, the deputy registrar of co-operative societies passed the impugned surcharge order mechanically on 17-10-86, basing on the findings of the enquiry officer. it is to be noted that one akkala iyalaiah, one of the members of the first respondent society sent a representation on 23-6-1985 to the hon. minister for co-operation and the minister passed orders for enquiry and the special cadre deputy registrar, warangal passed orders on 24-6-1985 ordering enquiry under section 51 of the act. all this was done within 24 hours. it shows the personal interest and political rivalry of the hon. minister, who naturally will be very busy with his politics and administration of his port-folio ministry, in getting the orders of enquiry passed within such a short time of 24 hours, from the time of making the representation of one of the members of the first respondent-society against the petitioner alleging misappropriation of the society funds. the reason is also not known why the deputy registrar did not grant time for filing objections, though application was made seeking adjournment and without hearing the arguments of the counsel for the petitioner. in the enquiries, the delinquent has every right to peruse any relevant record or summon any person to be examined or cross- examined in order to get rid of the burden shouldered by him and to prove his innocence. here not passing any orders on the petition dated 22-9-1986 filed by the counsel for the petitioner to summon the paid secretary of the society and the supervisor of co-operative central bank, warangal for cross-examination and without giving an opportunity to file objections by the petitioner to the enquiry officer's report and without hearting the counsel for the petitioner and passing the ex parte orders on 17-10-86 ex facie is opposed to the principles of natural justice, audi-alteram principle and improper. in this view of mine, i feel that the proceedings were not properly conducted in accordance with the rules and also are in clear violation of the proviso appended to section 60(1) of the act, which clearly says that no order shall be passed against any person unless he has been given an opportunity of making his representation. the lower appellate tribunal while dealing with the question whether the enquiry was properly conducted or not, found that the enquiry was not properly conducted and the enquiry officer cannot fix up the responsibility on the petitioner-delinquent in respect of items 6 and 7. for all these reasons i hold that the enquiry was not conducted properly and it deserves to be quashed.4. since admittedly certain funds of the 1st respondent-society were misappropriated, i feel necessary enquiry has to be done to fix up the liability against the concerned person, either the petitioner herein or whoever may it be.5. hence i allow the writ petition setting aside the impugned proceedings without costs and direct the third respondent herein to conduct a regular enquiry into the matter afresh after giving reasonable opportunity to the petitioner and take necessary action against the concerned, completing all the process necessary within six months from the date of receipt of a copy of this order.6. till the enquiry is over and orders are passed by the quasi-judicial authority (3rd respondent), to safeguard the interests of the public funds, the petitioner is restrained from alienating the properties standing in his name.