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1991 DIGILAW 322 (KAR)

S. GANGADHARAPPA v. KODIHALLI VYAVASAYA SEVA SAHAKARA SANGHA NIYAMITA

1991-06-06

K.S.BHATT

body1991
K. S. BHATT, J. ( 1 ) ISSUE rule. The petitioner is aggrieved by the order of the karnataka Appellate Tribunal which affirmed an order made under Section 69 of the Karnataka co-operative Societies Act ('the Act' for short ). The petitioner was surcharged under Section 69 of the Act in respect of certain alleged misappropriation committed by him when he was the president of the society during the years 1949 to 1969. After the year 1969 an administrator was appointed to the society in question. A dispute was raised against the petitioner earlier claiming certain amounts as having been appropriated by him. This dispute was dismissed as barred by limitation. Appeal to the Appellate Tribunal was of no avail to society. Thereafter Writ Petition no. 4804/1975 was filed by the society which again was dismissed as withdrawn, in which opportunity seems to have been given to the society to proceed against the petitioner under Section 69 of the Act. The writ petition was dismissed on 28-10-1975. The order of the Appellate Tribunal states that, thereafter an application under Section 69 was filed on 23-11-1976. On this an enquiry was ordered under Section 64 of the Act and thereafter an order under Section 69 was made without an independent proceeding to give effect to the findings in the alleged enquiry held under Section 64 of the Act. ( 2 ) IT is not necessary to refer to the several contentions urged before me by Mr. Ashok Harnahalli, the learned counsel for the petitioner. A perusal of the papers produced before me as part of the writ petition shows that the petitioner had no notice of the proceedings under Section 64 and inspite of his repeated requests for a copy of the proceeding the same was not furnished to him. There can be no doubt that the ultimate order made against the petitioner is thus vitiated by the failure to observe the principles of natural justice. ( 3 ) IT is also clear that the petitioner was sought to be burdened with the surcharge under Section 69 without a proceeding under the said provision as contemplated by Section 69. There can be no doubt that the ultimate order made against the petitioner is thus vitiated by the failure to observe the principles of natural justice. ( 3 ) IT is also clear that the petitioner was sought to be burdened with the surcharge under Section 69 without a proceeding under the said provision as contemplated by Section 69. Section 69 states that if tn the course of an audit, enquiry, inspection or the winding up of a society it is found inter alia that the President has made any payment contrary to the Act, Rules or the Bye-laws or has caused deficiency in the assets of the society by breach of trust or negligence or has misappropriated or fraudulently retained any money, etc. , belonging to the society, the Registrar may on his own motion or on an application of the committee etc. , frame charges against such persons and after giving such person an adequate opportunity of making representation, make an order requiring him to pay or restore the money to the society. Therefore, it is clear that a proceeding under Section 69 is independent of a proceeding under Section 64 which contemplates an enquiry. Similarly it is independent of the audit contemplated by Section 63. Section 65 provides for inspection; winding is contemplated by other provisions. The audit, enquiry, inspection or the winding up referred in section 69 are thus independent proceedings by themselves. In any one of the said proceedings if it is found that a person responsible to the society had caused loss to the society in any manner referred in Section 69 then power is given to frame charges against him to proceed in which further opportunity should be given to the person responsible and only thereafter if an independent finding is given the surcharge is imposable. In the instant case I do not find any such procedure being followed. Respondent-2 has assumed that a finding given in an enquiry under section 64 is sufficient to impose the surcharge under Section 69. ( 4 ) IN these circumstances the petitioner is entitled to relief sought by him. The impugned order imposing the surcharge and its affirmation by the Karnataka Appellate Tribunal are liable to be set aside. They are accordingly set aside. Writ petition allowed. Rule made absolute. No costs. --- *** --- .