Madras High Court
S.Sulochana vs The Joint Registrar Of ... on 26 August, 2021
W.P.No.17856 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.08.2021
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
W.P.No.17856 of 2021
and W.M.P.No.19060 of 2021
S.Sulochana ... Petitioner
Vs.
1.The Joint Registrar of Co-operative Societies,
Vellore Region,
Vellore.
2.The Deputy Registrar of Co-operative Societies,
Vellore. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, calling for the records of the
1st respondent impugned order dated 13/08/2021 made in
Na.Ka.No.4651/2021/ m2 issued as against the petitioner and quash the
same.
For Petitioner : Mr.L.P.Shanmugasundaram
For Respondents : Mr.A.Selvendiran
Government Counsel
1/6
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W.P.No.17856 of 2021
ORDER
On consent given by either side, the main writ petition itself is taken
up for final hearing.
2.The present writ petition challenges the proceedings of the 1st
respondent dated 13.08.2021 wherein the 1st respondent has passed an
order under Section 76(A) of the Tamil Nadu Co-operative Societies Act
(herein after called as “Act”) and suspended the petitioner who is the
President of the Society pending inspection and investigation initiated
under Section 82 of the Act.
3.Heard Mr.L.P.Shanmugasundaram, learned counsel appearing on
behalf of the petitioner and Mr.A.Selvendiran, learned Government Counsel
appearing on behalf of the respondents.
4.The petitioner is the elected President of Thiruvalam Primary
Agriculture Co-operative Credit Society Ltd., and she has assumed charge
in the year 2018. Based on certain irregularities that came to the notice of
the 2nd respondent, an inspection/investigation was ordered under Section
82 of the Act. Pending the same, the 1st respondent has proceeded to pass
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W.P.No.17856 of 2021
the impugned order dated 13.08.2021, suspending the petitioner on the
ground that the continuation of the petitioner to function as the President
pending the enquiry will cause disruption to the inspection/investigation.
5.This Court has carefully gone through the impugned order passed
by the 1st respondent. The order basically lists down various irregularities
that have been complained against the Society. After doing so, the 1st
respondent has straight away proceeded to pass the order of the
suspension of the petitioner pending the inspection/investigation.
6.This Court had an occasion to deal with the scope of Section 76(A)
of the Act in detail in W.P.No.12476 of 2021 and an order was passed in the
writ petition on 10.08.2021. The principles that were enunciated in the said
judgement will squarely apply to the facts of the present case. For proper
appreciation, the relevant portions in the judgement are extracted
hereunder:
24.Whether the suspension of elected officer bearers is
warranted pending an inquiry, depends upon the facts and
circumstances of each case. As pointed out, supra, the
requirement of Section 76-A is not merely the existence of
prima facie material. The Registrar must return a finding on the
basis of such material that an order of suspension was
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W.P.No.17856 of 2021
necessary in public interest or in the interests of the society. In
other words, the Registrar must satisfy himself that if such
suspension is not made, there is scope for the office bearers to
interfere with theinquiry and/or tamper with the evidence. In
the absence of the any such apprehension, there will be no
requirement for suspension and the inquiry can go on.
25.Section 76-A is a drastic power which interferes with
the rights of the elected members who have been voted to
office, and must, therefore, be exercised very sparingly and
only in the clearest cases where there is objective material to
show that the continuation of office would interfere and impede
a free and fair inquiry under Section 81. Otherwise, persons
who have lost the election can always take control through a
back door by getting the Registrar pass an order suspending
the office bearers on the basis of external influence. Such a
course is expressly forbidden in the light of the judgment of the
Supreme Court in State of M.P. v. Sanjay Nagayach reported
in (2013 7 SCC 25).
26.In the present case, things have moved very swiftly
from 20.05.2021 to 1.06.2021 and by the time an inquiry officer
was appointed, the impugned proceedings suspending the
petitioners came to be issued on 01.06.2021.The present case
only involves scrutiny of documents which are already available
and taking statements from the petitioners and others. There is
no scope for any serious tampering of evidence since the
documents are already available with the respondents. There is
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W.P.No.17856 of 2021
absolutely no material on record to conclude that the
suspension was warranted in public interest or in the interests
of the society. There is nothing on record to show how the
Registrar had apprehended that the continuation of the
petitioner’s in office would impede the course of a fair and
impartial inquiry. In other words, the Registrar has, quite
evidently, acted on surmises and conjectures.
27.As has been pointed out, supra, a mere prima facie
case will not do to invoke Section 76-A. The jurisdictional
requirement of Section 76-A has, thus, not been met in this
case. Ex-consequenti, the exercise of power by the first
respondent to pass the impugned orders dated 01.06.2021
under Section 76-A is clearly without jurisdiction.
7.It is clear from the above that a mere prima facie case is not
enough to invoke Section 76(A) and there must be specific reasoning in the
order itself to show that there are sufficient materials to infer that the
office bearers will interfere with the enquiry or tamper with the evidence.
In the absence of any such apprehension, there will be no requirement for
suspension pending the inspection/investigation.
8.In view of the above, the impugned proceedings of the 1 st
respondent dated 13.08.2021 is hereby quashed. However, it is made
clear
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W.P.No.17856 of 2021
N. ANAND VENKATESH, J.
ssr
that the inspection/investigation under Section 82 of the Act can go on and
a report shall be submitted by the concerned Officer, within a period of
eight weeks from the date of receipt of copy of this order. Needless to say
that the further action on the report shall proceed strictly in accordance
with law.
9.In the result, this writ petition stands allowed. No Costs.
Consequently, connected miscellaneous petition is closed.
26.08.2021
Internet : Yes
Index : Yes/No
Speaking Order / Non Speaking Order
ssr
To
1.The Joint Registrar of Co-operative Societies,
Vellore Region, Vellore.
2.The Deputy Registrar of Co-operative Societies,
Vellore.
W.P.No.17856 of 2021
and W.M.P.No.19060 of 2021
http://www.judis.nic.in
