A. Kumar vs The Joint Registrar Of ...
2021 Latest Caselaw 17846 Mad

                                 IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED 01.09.2021

                                                     CORAM:

                                 THE HON'BLE MR.JUSTICE N.ANAND VENKATESH

                                              W.P.No.15568 of 2021
                                             WMP No.16492 of 2021


                      A. Kumar                            ...Petitioner


                                                            Vs

                      1. The Joint registrar of Co-operative Societies,
                         Tirupur Region,
                         Tirupur.

                      2. Selampalayam Primary Agricultural
                         Co-operative Credit Society AA -314,
                         Rep by its Secretary,
                         Selampalayam -638672
                         Tirupur district.                        .....Respondents


                      Prayer: Writ petition filed under Article 226 of the Constitution of

                      India praying for issuance of a writ of Mandamus or any other

                      appropriate writ, order or direction calling for the records relating to

                      the impugned order in Na.Ka. No. 1270/ 2021/ Pa.2 dated 09.07.2021

                      passed by the 1st respondent, quash the same and consequently direct

                      the 1st respondent not to interfere with petitioners right to continue
http://www.judis.nic.in
                      as the Elected president of the 2nd respondent society, by considering

                      the petitioners representation dated 14.07.2021.




                                    For Petitioner   : N. Manokaran

                                    For Respondents       : Mr. A.Selvendiran for R1
                                               Mr. V.P.R.Ilamparthi for R2

                                                     ORDER

This writ petition has been filed challenging the

impunged notice issued by the first respondent dated 09.07.2021,

wherein the order of suspension passed under Section 76 (A) of the

Tamil Nadu Corporative Societies Act, has been put to challenge.

2. When the writ petition was admitted, this Court passed

the following order on 02.08.2021 :-

Mr.A.Selvendiran, learned Government Advocate,

takes notice for 1st respondent.

Mr.V.P.R.Ilamparthi, learned counsel takes notice

for 2nd respondent. Post this case after four

weeks. In the meantime, the respondents are

directed to file their counter affidavit.

http://www.judis.nic.in

2. The subject matter of challenge in this

writ petition is the impugned notice issued by the

1st respondent dated 09.07.2021, wherein an

order of suspension has been passed under Section

76(A)of the Tamil Nadu Co-operative Societies Act.

3. The petitioner is the president of the

elected board and he took charge in the year 2018

and his tenure is for a period of five years. One

Kathirvel was appointed as the in-charge

Secretary in the year 2013 and there were certain

complaints against him with regard to serious

irregularities that were pointed out in the audit

report for the year 2015-2016. It is an admitted

case that the petitioner took charge as the

President only in the year 2018. Proceedings were

initiated by the 1st respondent against the

delinquent Secretary in the year 2019 and the

Secretary approached this Court and filed WP http://www.judis.nic.in No.22573 of 2019 challenging the proceedings.

Initially, an order of status quo was granted on

08.08.2019 and ultimately, the writ petition itself

was disposed of by issuing certain directions by an

order dated 21.10.2019.

4. The impugned proceedings against the

petitioner has been passed on the ground that the

petitioner did not place the delinquent Secretary

under suspension, when an enquiry has been

ordered under Section 82 of the Tamil Nadu Co-

operative Societies Act. The fact remains that the

delinquent Secretary could have been placed

under suspension even by the 1st respondent and

there was no necessity for the 1st respondent to

rely upon the petitioner to pass such an order. On

the materials placed on record, this Court is prima

facie satisfied that the requirements of Section

76(A) of the Tamil Nadu Co-operative Societies Act

may not be attracted. Since a prima facie case has http://www.judis.nic.in been made out, there shall be an order of stay of

the proceedings of the 1st respondent, pending

disposal of this writ petition.

3. Heard the learned counsel for the petitioner and

Mr.A.Selvendiran, learned counsel for 1st respondent and

MR.V.P.R.Iamparthi, for 2nd respondent.

4. A careful reading of the impugned order passed by the

first respondent shows that the order has been passed pending an

inspection / investigation under Section 82 of the Tamil Nadu

Cooperative Societies Act. It is seen from the order that except for

the ipse dixit of the first respondent that the petitioner may

interfere with the inspection / investigation, there are absolutely no

materials or reasonings as to how the first respondent came to such a

conclusion.

5. In any case, the present writ petition is squarelly covered

by the earlier order passed by this Court in WP No. 12476 and 12894

of 2021, dated 10.8.2021. The relevant portions in the order are

extracted hereunder:-

http://www.judis.nic.in

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 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, http://www.judis.nic.in 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 http://www.judis.nic.in 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 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 http://www.judis.nic.in jurisdiction.

6. It is clear from the above order that a mere prima-facie

case will not do to invoke section 76 (A) of the Act, without satisfying

the requirements of Section 76 (A) of the Act. This power cannot be

invoked in every case where an enquiry or inspection / investigation

is initiated. This power has to be excercised sparingly and cannot be

invoked mechanically in every case. Such invocation of power will

cause serious hardship to an elected office bearer.

7. In view of the above discussion, impugned proceedings of

the first respondent dated 09.07.2021, is hereby quashed. However,

it is made clear that the inspection / investigation under Section 82

of the Act, can go on and report shall be submitted by the enquiry

officer within a period of eight weeks from the date of receipt a copy

of this order. Needless to say that further action on the report shall

proceed strictly in accordance with law.

8. In the result, the above writ petition is allowed on the

aforesaid terms. No costs. Consequently, the connected

miscellaneous petition is closed.

http://www.judis.nic.in 01.09.2021

sha/rka Index : Yes Internet :Yes

N.ANAND VENKATESH.,J sha

To

1. The Joint registrar of Co-operative Societies, Tirupur Region, http://www.judis.nic.in Tirupur.

2. Selampalayam Primary Agricultural Co-operative Credit Society AA -314, Rep by its Secretary, Selampalayam -638672 Tirupur district.

3. The Deputy Superintendent of Police Vigilance and Anticorruption office Sornapuri, Salem District

4. Selliyampalayam Agricultural Co-operative Credit Society Rep. By its President, Selliyamplayam Post, Attur Taluk, Salem District.,

W.P.No.15568 of 2021

01.09.2021

http://www.judis.nic.in