Madras High Court
The Deputy Registrar Of vs N.Mayee on 10 August, 2023
W.A.(MD)No.129 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.08.2023
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A.(MD)No.129 of 2014
and
M.P.(MD)No.1 of 2014
1.The Deputy Registrar of
Co-operative Societies,
Usilampatti at Thirumangalam,
Madurai District.
2.The Special Officer,
MD (PVT).103, Kuppanampatti Primary
Agricultural Co-operative Bank,
Kuppanampatti Post,
Usilampatti Taluk,
Madurai District. ...Appellants
/Vs./
N.Mayee ...Respondent
PRAYER:- Writ Appeal - filed under Clause XV of Letters Patent Act, to
set aside the order passed by this Court dated 15.04.2010 in W.P.
(MD)No.5989 of 2009 on the file of this Court.
1/6
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.129 of 2014
For Appellants : Mr.C.G.Pethanaraj
For Respondent : Mr.S.Shaji Bino
Special Government Pleader
JUDGMENT
(Judgment of the Court was made by DR.ANITA SUMANTH, J.)
W.P.(MD)No.5989 of 2009 has been filed by the writ
petitioner, who was appointed as a Salesman in MD (PVT).103,
Kuppanampatti Primary Agricultural Co-operative Bank, (in short
'Bank'), on 02.01.1997.
2. There were certain misappropriations that had been detected
relating to the period 1998 – 1999 to 2000 – 2001 and based on the
enquiry conducted, the writ petitioner was placed under orders of
suspension on 22.06.2001. Enquiry under Section 81 of the TamilNadu
Cooperatives Act, 1983 (in short 'Act') was initiated. Thereafter, a show
cause notice was issued on 29.05.2009 as a precursor to the levy of
surcharge under Section 87 of the Act.
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W.A.(MD)No.129 of 2014
3. The writ petitioner challenged the show cause notice on the
ground that it was beyond the period of seven years provided for the
commencement of proceedings for levy of surcharge under the proviso to
Section 87 of the Act.
4. The learned Judge has allowed the writ petition by order
dated 15.04.2010 applying the decision in H.Rajasekar, G.Prabakaran
and K.Mallesh vs. The Deputy Registrar and Others (2004 (4) LW 427),
ratio being to the effect that the period of seven years was mandatory and
would commence from the date of commission of the acts of
misappropriations.
5. One question that has arisen in regard to the interpretation
of this question is as to the point of commencement of the seven year
period. Some benches of this Court have adopted the view that the point
of commencement would be the date of commission of the misdemeanor,
whereas some others had taken the view that the point of commencement
would be the date of detection of those misdemeanors by the Society
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W.A.(MD)No.129 of 2014
concerned. On this cleavage of opinion, the matter was referred to a
larger Bench for decision.
6. Pending resolution of that issue, a Notification came to be
issued by the Secretary to Government (Legislation) of Law Department
on 12.06.2022 that culminated in Act 33 of 2022, amending the proviso
to Section 87 of the Act to the effect that the period of seven years for
commencement of proceedings for levy of surcharge shall be the date of
detection of the offence. The Full Bench constituted was discharged on
09.09.2022 to be formulated afresh to decide the question of whether the
amendment as aforesaid, shall apply retrospectively or prospectively.
7. Happily however in this case, we need not tarry on account
of pendency of this question, as the admitted sequence of dates and
events reveal that the commencement of surcharge proceedings is beyond
seven years, whether taken from the date of misdemeanor or from the
date of detection of that act.
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W.A.(MD)No.129 of 2014
8. The date of suspension of the writ petitioner was
22.06.2001 and we thus adopt that date conservatively seeing as the
misdemeanors (misappropriation in this case) span a period of three
years. If that were so, the period of seven years would expire on
22.06.2008, and show cause notice under Section 87(1) of the Act should
have been issued prior to 22.06.2008. In this case, it has admittedly been
issued only on 29.05.2009 beyond the seven year period.
9. Thus, we confirm the conclusion of the Writ Court to the
effect that the proceedings for levy of surcharge have been initiated
beyond the statutory period, though on a different premise. This Writ
Appeal is dismissed. No costs. Consequently, connected Miscellaneous
Petition is closed.
[A.S.M.J.,] & [R.V.J.,]
10.08.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes
sm
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.129 of 2014
DR.ANITA SUMANTH, J.
AND
R.VIJAYAKUMAR, J.
sm
Judgment made in
W.A.(MD)No.129 of 2014
Dated:
10.08.2023
https://www.mhc.tn.gov.in/judis
