Madras High Court
E.M.Sekar vs The Special Officer on 27 September, 2023
CRP. No.2538 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.09.2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
CRP. No. 2538 of 2017
E.M.Sekar
...Petitioner
Vs.
1.The special officer,
K.K. 162. N.S. Reddiyur Primary Agricultural Co-operative Bank,
Dharmapuri Taluk & District.
2. The Deputy Registrar of Co-operative Societies,
Dharmapuri,Dharmapuri District.
...Respondents.
PRAYER : This Civil Revision Petition is filed under Section 227 of CPC,
to set aside the judgment and decree dated 05.06.2017 made in C.M.A (C.S)
No.6 of 2012 on the file of Co-operative Cases Appellate Tribunal(Principal
District Court), Dharmapuri, confirming the award of the 2 nd respondent in
surcharge order in Na.Ka. No. 7345/2010/sa.pa.2 dated 05.06.2017.
For Petitioner : Mr.G.Arulmurugan
For R1 : Mr.M.S.Palaniswamy
For R2 : Dr.S.Suriya
1
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CRP. No.2538 of 2017
ORDER
This petition has been filed to set aside the judgment and decree
dated 05.06.2017 made in C.M.A (C.S) No.6 of 2012 on the file of Co-
operative Cases Appellate Tribunal(Principal District Court), Dharmapuri,
confirming the award of the 2nd respondent in surcharge order in Na.Ka. No.
7345/2010/sa.pa.2 dated 05.06.2017.
2.The brief facts of the case is as follows:
The petitioner herein served as a Secretary in Rediyur Co-operative
bank for the year 2005-2006. Thereafter, audit was conducted for the above
period and found that the petitioner misused a sum of Rs.91,107,10/- from
the society while he was working as a secretary. Thereafter, the second
respondent initiated surcharge proceedings against the petitioner on
10.10.2021. Against which, the petitioner preferred an appeal before the
Principal District Judge, Dharmapuri, after considering submissions on
either side the Court below dismissed the appeal. Aggrieved over the same
the petitioner preferred this Civil Revision Petition.
3. The learned counsel for the petitioner submitted that the lower
Court failed to take note of the fact that the Audit report relied by the the
respondent society for the year 2004 to 2006 in which charges pertains to
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CRP. No.2538 of 2017
entries made in the year 2004 but the proceedings were initiated only in the
year of 2011 which is beyond the time limit as prescribed under Section 87
of Co-operative Societies Act(''in short Act''), as such is invalid and liable to
be set aside. Further, he argued that as per Section 87 of the said Act order
should be passed within six months from the date of the commencement of
proceedings but final order passed after six months which is beyond the
prescribed period of six months which has not been appreciated by the Court
below. Further, he argued that even as per Section 80(8) of the Act notice
should be given to the petitioner but the respondent prepared report
unanimously against the petitioner without giving proper opportunity.
Further, he submitted that alleged loss claimed based on the report dated
09.08.2010 which was submitted after four months by referring to xerox
copies of the book entries and registries without verifying any of the original
records as such is clearly indication of malafide intention fasten the liability
on the petitioner but the same was not properly appreciated by the Trial
Court. It was submitted that without furnishing copy of the enquiry report
proceedings was initiated against the petitioner as such is unfair and liable to
be set aside but the Trial Court failed to take note of the fact. Hence he pray
to allow this petition.
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CRP. No.2538 of 2017
4. By way of reply, the learned counsel for the respondents submitted
that before initiating surcharge proceedings notice was issued to the
petitioner on 14.02.2011 calling for explanation after receiving the same he
has not replied. Thereafter, the respondent issued summons to the petitioner
on 29.07.2011 and directing him to appear for enquiry on 08.08.2011 but he
was not appeared again summons issued on 11.08.2011 and directing him to
appear on 24.08.2011 after getting the same the petitioner made an written
representation by sending the register post claiming the particulars of the
record and also raised objections with regard to attachment of his savings
bank account by the respondents. In the meanwhile, he preferred writ
petition before this Court seeking to set aside the impugned order dated
17.02.2011 in respect of attachment order of saving bank account after
considering the submissions on either side this Court set aside the impugned
order and also permitted the respondents to initiate proceedings as per
provision under Section 87 of the Act. Thereafter, second respondent issued
notice to the petitioner calling him to appear for enquiry after receiving two
notice the petitioner thereafter through letter dated 24.08.2011 the petitioner
sought for records from the respondent related to the allegation against him
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CRP. No.2538 of 2017
and also raised objection that he has not committed any misappropriation as
claimed by them. Thereafter, the Second respondent issued reply to the
petitioner's letter dated 26.08.2011 and permitting him to peruse the records
directly in the register office on 05.09.2011. After perusing the records the
petitioner requested the copy of the documents for which the respondent
requested him to pay sufficient charges to take copy of that documents but
he was obtained that documents. Thereafter he was called upon for the
enquiry on 14.09.2011 but on that date he gave reply that he was unable to
appear for equiry due to viral fever. Again on 26.11.2011 the petitioner gave
reply stating that sufficient time was not granted to him so he was not
appeared for enquiry and claiming the proceedings as biased thereafter
based on the available records surcharge proceedings and final report was
passed under Section 87 of the Act based on the documents. Hence the
sufficient opportunity was given to the petitioner but he was not appeared
for enquiry nor paid charge to get copy of the related documents which was
rightly appreciated by the Court below which needs no interference.
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CRP. No.2538 of 2017
5. Considering the submissions on either side, it reveals that in the
year 2010 based on the audit report the second respondent issued surcharge
notice to the petitioner on 04.04.2011 on receipt of the said notice the
petitioner sent reply and also sought time to submit his reply to the said
report. Thereafter, he sought copy of the said document, for which, the
respondent permitted him to peruse the documents in office and necessitate
him to pay charges for the copy of the document because the enquiry report
contains 21,000/- pages but the petitioner not paid. On the other hand, he
remains absent for the enquiry proceedings. Thereafter, based on the
available records the second respondent passed surcharge order on
10.10.2011. So far sufficient opportunity was given to the petitioner by the
respondent but the same petitioner was not appeared for enquiry and gave a
reply that he was suffered with viral fever but there is no medical proof to
that effect the Court below rightly appreciated the conduct of the petitioner.
Furthermore, as discussed above, the entire facts reveals that sufficient time
and opportunities was given to the petitioner but the petitioner has not
availed those opportunities and keeping himself away from the proceedings
purposely with malafide intention. Hence, this Court doest not find any
infirmity in the order of the Court below. Accordingly, this Civil revision
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CRP. No.2538 of 2017
petition is dismissed as no merits. No cost. Consequentially, connected
miscellaneous petition is closed.
27.09.2023
pbl
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CRP. No.2538 of 2017
T.V.THAMILSELVI,J.
Pbl
CRP. No.2538 of 2017
27.09.2023
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