Rajgarh Cooperative Agricultural Services Society through its Secretary v. Deputy Secretary (Appeals) to Government Punjab
2004-07-26
M.M.KUMAR
body2004
DigiLaw.ai
JUDGMENT M.M. Kumar, J. - This petition filed under Article 226 of the Constitution of India prays for issuance of a writ of certiorari for quashing the order dated 23.8.1985 (Annexure P-5) passed by the Deputy Secretary (Appeals), Government of Punjab, Department of Cooperative Societies exercising the powers of the Government. It has further been further prayed that the award (Annexure P-1) dated 23.7.1984 passed by the Arbitrator and the Appellate order (Annexure P- 2) dated 25.3.1985 be upheld. 2. Brief facts of the case necessary for the disposal of the instant petition are that Amrik Singh, Pritam Singh and Ranjit Singh, respondent Nos. 2 to 4 are the members of the petitioner society. On account of their dealings with the society for the last many years some amount was payable by them to the society. A reference against each of respondent Nos. 2 to 4 under Sections 5 and 56 of the Punjab Cooperative Societies Act, 1961 was made to the Arbitrator which was decided on 23.7.1984 by a consolidated order as common questions of facts and interest were there. The Arbitrator in his award (Annexure P-1) held respondent Nos. 2 to 4 responsible for not making the payment of due amount. During the course of his discussion he discarded the receipts issued by respondent No. 5 as Secretary of the petitioner society as the same were issued by respondent No. 5 after he was removed as Secretary of the petitioner society. The operative part of the award passed by the Arbitrator reads as under : "After hearing the parties, I have come to the conclusion that Shri Amrik Singh in connivance with league with Mange Ram-Secretary has obtained the receipts in respect of the amounts of recoveries of the following members after the removal of Mange Ram from the post of Secretary and these receipt have not been issued from the printed receipt books of the society. Mange Ram has also not entered the recovery of these amounts in the books of the Society though at that time he was the Secretary to the Society and used to write the record of the society. These entries have not been recorded even at the time of his removal as Secretary of the Society and also while handing over the record of the Society.
These entries have not been recorded even at the time of his removal as Secretary of the Society and also while handing over the record of the Society. It is evident that these receipts have been issued by Mange Ram after his removal of Secretaryship and in connivance with the debtor without receiving any amount of the above Society. I, therefore, do not accept these receipts as genuine and decide that the following amounts be recovered from the members : Sr. No. Name Principal Int. Expense Total Rs. Rs. Rs. Rs. 1. Pritam Singh S/o Gurdial Singh 7,649.84 1,818.16 250.00 9,718.00 2. Ranjit Singh S/o Gurdial Singh 14,934.52 2,772.48 250.00 17,957.00 3. Amrik Singh 14,915.64 1, 881.36 250.00 17,047.00 The interest at the rate of 14-1/2 per cent year will be payable till the payment is made. Decision given on 23.7.1984. Parties concerned may be informed." 3. On appeal, filed under Section 68 of the Act by respondent Nos. 2 to 4, the Deputy Registrar upheld the award of the Arbitrator on the ground that when the appeal was heard Mange Ram, respondent No. 5 was called who changed his statement by stating that he received the amount due from two of the three respondents only which created a doubt about the stand taken by him before the Arbitrator. The views of the Appellate Authority as reflected in the concluding para of the order dated 25.3.1985 read as under : "After examining the award and the arbitration file and hearing the counsel for the appellants and the respondent it is clear that the appellants by producing Mange Ram before the Arbitrator got confirmed the issuance of receipts by Mange Ram and for this purpose, the appellants produced Mange Ram during the hearing of this appeal. Mange Ram stated in this court that out of the three appellants, he recovered the amount from the two appellants only and this statement of Mange Ram creates doubt about earlier stand taken by the counsel for the appellants. Besides this neither any application has been moved before the Arbitrator for including Mange Ram as party nor in this appeal. It is quite evident that the appellants are not inclined to fix any liability on Mange Ram despite their having tried before the Arbitrator and this Court that they have paid the amounts to Mange Ram.
Besides this neither any application has been moved before the Arbitrator for including Mange Ram as party nor in this appeal. It is quite evident that the appellants are not inclined to fix any liability on Mange Ram despite their having tried before the Arbitrator and this Court that they have paid the amounts to Mange Ram. On the basis of above facts and record, I am of the view that the award given by the Assistant Registrar, Cooperative Societies, Patiala is justified. I, therefore, reject the appeal of the appellants without making any modification in the award. The decision was kept reserved on 15.3.1985, which has been announced today 25.3.1985 in the open Court. Parties be informed." However, on 24.8.1985 (Annexure P-5), the Deputy Secretary accepted the revision petition filed by respondent Nos. 2 to 4 under Section 69 of the Act and set aside the award of the Arbitrator as well as the appellate order. He has placed reliance on the receipts dated 22.11.1982 and 26.11.1982. He has also accepted the statement made by Mange Ram, Secretary of the petitioner- Society (respondent No. 5) that on 26.11.1982, respondent No. 3 returned a sum of Rs. 27,175/- and in token of having received the amount he signed the entries in the pass book. Similarly on 22.11.1982, respondent No. 2 Amrik Singh, deposited a sum of Rs. 16,769/- and similar entry was made by the Secretary in his pass book. Therefore, the entries could not be considered to be vague in the absence of any evidence to that effect. The views of the Deputy Secretary and the rationale on the basis of which he accepted the revision petition reads as under : "1. I have very carefully scrutinised the arbitration award and the appellate order. The Arbitrator has disbelieved the evidence of Mange Ram and entries in the respective pass books of the petitioners on the ground that after receiving the payments said Mange Ram did not account for the amounts said to have been received from the petitioners in the books of the society. The appellate Authority disbelieved the statement of Mange Ram on the ground that whereas before the Arbitrator he had stated that he received payments from all the three petitioners but before the appellate authority he had stated that he had received repayment only from two petitioners.
The appellate Authority disbelieved the statement of Mange Ram on the ground that whereas before the Arbitrator he had stated that he received payments from all the three petitioners but before the appellate authority he had stated that he had received repayment only from two petitioners. The appellate authority further disbelieved the evidence on the ground that the said Mange Ram was not a party to the dispute and the petitioners did not apply for getting him impleaded a party to the dispute. I fail to appreciate the line of reasoning adopted by both the Arbitrator as well as by the appellate authority. Said Mange Ram was Secretary of the society and was authorised to receive payment as per clause 11 of Bye-law 46 of the Model Bye- laws. In case after receipt of the amount he did not account for the amounts received in the books of the society then it is not fault of the petitioners. The job of the petitioners was finished as soon they paid the amounts and got the signatures of the Secretary of the Society in their respective pass books in token of his having received the amounts. I also cannot appreciate the logic adopted by the appellate authority in disbelieving the evidence of said Mange Ram simply because the petitioners failed to implead him as party to the dispute. It was the job of respondent Secretary to implead Mange Ram as necessary party and in case the petitioners did not do so then they cannot be penalised for that. The statement of a witness does not become unreliable simply because he is not a party to the dispute and he is appearing before the Arbitrator or the appellate authority only as a witness. Pass Books have been issued to the members of the society with a view to provide them with upto date account of loans advanced to them by the Society and repayment made by them. In case the entries in pass books are to be dis-believed in this fashion then the whole purpose behind issuance of pass books would be defeated and members would not be left with any evidence in their hand regarding the repayments made. In view of the aforementioned discussion I accept the revision petition and quash the award dated 23.7.1984 and the appellate order dated 31.3.1985 and absolve the petitioners of their liability.
In view of the aforementioned discussion I accept the revision petition and quash the award dated 23.7.1984 and the appellate order dated 31.3.1985 and absolve the petitioners of their liability. The respondent society would be at liberty to raise fresh dispute against Mange Ram Ex-Secretary of the respondent-society." 4. Shri G.S. Gandhi, learned counsel for the petitioner society has argued that no opportunity of hearing has been afforded to the petitioner society on 23.8.1985 as on the previous date i.e. 22.7.1985 he has appeared before him at Chandigarh and the case was posted for hearing on 23.8.1985 at Patiala only to inspect the record. According to the learned counsel no arguments were to be addressed on 23.8.1985 at Patiala. Therefore, he was deprived of a reasonable opportunity of hearing. The learned counsel has further argued that mere production of entries in the pass books would not furnish adepate proof that respondent Nos. 2 to 4 have paid their dues to the Secretary of the petitioner-society Mange Ram (respondent No. 5) and therefore the findings based on the mere entries in the pass books are liable to be set aside. Learned counsel has further submitted that Secretary of the Society Shri Mange Ram has himself stated before the Arbitrator that the payment was received from respondent Nos. 2 to 4 but he resiled from his statement as is clear from what he stated before the Appellate Authority. The learned counsel has maintained that in the written statement filed by the Secretary of the petitioner-Society Mange Ram in this Court he has still made another statement that he never received any amount from respondent Nos. 2 to 4 and have supported the award passed by the Arbitrator against respondent Nos. 2 to 4. 5. Shri Sukant Gupta, learned State counsel has argued that the order dated 22.7.1985 passed by the respondent No. 1 only records that the case was to come up for record on 23.8.1985 at Patiala and the same was duly argued by Shri B.D. Mittal, Advocate who had appeared on behalf of the petitioner- society by filing his vakalatnama which is on record. Referring to the written statement filed by respondent No. 5, the learned counsel has submitted that there was no understanding as alleged that the next date of hearing was to be fixed at Chandigarh after examining the record at Patiala.
Referring to the written statement filed by respondent No. 5, the learned counsel has submitted that there was no understanding as alleged that the next date of hearing was to be fixed at Chandigarh after examining the record at Patiala. The learned State Counsel has further argued that neither at the time of arguments nor at the time of pronouncement of the order any objection with regard to inadequacy of hearing was raised. 6. The learned State counsel has raised another argument that respondent No. 1 has passed a quasi judicial order and no comments are desirable on the merits of that order. However, he has submitted that there is neither any jurisdictional error nor any error apparent on the face of the record or any violation of the principles of natural justice which may warrant quashing of the impugned order dated 23.8.1985. According to the learned State counsel in a writ of certiorari this Court cannot assume the character of the appellate Court and reverse the findings of facts on re-appraising the evidence. In support of his submission, the learned counsel has placed reliance in a judgment of the Constitution Bench of the Supreme Court in the case of Syed Yakoob v. Radhakrishnan, AIR 1964 SC 477. He has relied on other judgments of the Supreme Court in the cases of Harbans Lal v. Jagmohan Saran, 1985(4) SCC 333; P. Kalsingam v. PSG College of Technology, 1981(1) SCC 405; Nagendra Nath Bora and another v. Commissioner of Hills, AIR 1958 SC 398 and Ebrahim Aboodkar and another v. Custodian General of Evacuee Property, AIR 1952 SC 311. 7. Shri H.S. Chawla, Advocate appearing for respondent Nos. 2 to 4 has stated that he adopts the arguments of the learned State counsel. 8. After hearing the learned counsel for the parties at a considerable length, I am of the considered view that this petition is liable to be rejected because there is ample evidence on record to show that respondent Nos. 2 to 4 have made payments of their dues to the Secretary to the Society Shri Mange Ram (respondent No. 5). These are not the mere entries in the pass book which are the basis of the findings recorded by the Deputy Secretary to Government.
2 to 4 have made payments of their dues to the Secretary to the Society Shri Mange Ram (respondent No. 5). These are not the mere entries in the pass book which are the basis of the findings recorded by the Deputy Secretary to Government. It is significant to notice that the statement of the Secretary of the petitioner Society Mange Ram made before the Arbitrator in terms admitted the receipt of payments from respondent Nos. 2 to 4. A reference made to the award passed by the Arbitrator would reveal that Mange Ram had admitted receiving an amount of Rs. 27,175.00 on 26.11.1982 from respondent No. 3 and 4. He also admitted that he made entry in the pass books and as a measure of proof initialled the same. He further stated that the recovered amount was given on demand to Darshan Singh Virk, Inspector, who was to deposit the same in the bank next day. With regard to recovery from respondent No. 2 Amrik Singh, he had stated that on 22.11.1982 he received a sum of Rs. 16,769.00 from him and made entry in his pass book under his signatures. With regard to this amount, Shri Mange Ram categorically stated that he adjusted the same towards the expenses of the society as he was removed as Secretary of the Society and no entry was made in the books of the Society. The statement made by the Secretary of the petitioner Society Mange Ram has to be considered as an admission under Section 17 of the Indian Evidence Act, 1872 because it is a self-harming statement made by him. It is well settled that no person would make an incorrect statement which would adversely effect ones own interest. Such a statement is made only because it is true. Moreover, that statement was made by Mange Ram before the Arbitrator somewhere in 1985 which is closer to the time as compared to the statement made before the Appellate Authority. Therefore, the view taken by the Deputy Secretary in the impugned order believing the statement of the Secretary of the petitioner Society, Mange Ram (respondent No. 5) is not open to any doubt.
Therefore, the view taken by the Deputy Secretary in the impugned order believing the statement of the Secretary of the petitioner Society, Mange Ram (respondent No. 5) is not open to any doubt. It is further evident that Secretary of the petitioner society is authorised to receive payments as per Clause 11 of Bye-law 46 of the Model Bye-laws and in case the amount received by the Secretary is not accounted for in the books of the society then respondent Nos. 2 to 4 could not be held liable. 9. I am further of the view that a writ of certiorari cannot be issued by this Court for quashing the decision of an inferior Court which is within its jurisdiction merely on the ground that the decision is wrong. It is to be shown that the authority which had passed the order has acted without jurisdiction or in excess of it or has violated the principles of natural justice. The learned State counsel has rightly placed reliance on a judgment of the Constitution Bench of the Supreme Court in the case of Ebrahim (supra). The same view has been reiterated by another Constitution Bench in the case of Syed Yakoob (supra). It is further well settled that this Court is not to act as an appellate Court that this Court for re-appraising the evidence for the purposes of reversing the finding. This view finds support from the judgment of the Supreme Court in the case of Harbans Lal (supra) and a recent judgment of the Supreme Court in the case of Surya Devi Rai v. Ram Chander Rai, 2003(6) SCC 675. No such ground is available which may warrant the exercise of jurisdiction under Article 226 for issuance of a writ in the nature of certiorari. 10. The argument of Shri G.S. Gandhi that opportunity of hearing has not been afforded as the case was posted for inspection of record on 23.8.1981 at Patiala cannot be accepted because Shri B.D. Mittal, Advocate, has argued the case on behalf of the petitioner society and his power of attorney is on record. No objection was raised when arguments were addressed on 23.8.1985 nor any such request for adjournment was made. When the order was pronounced even then the counsel for the petitioner society Shri B.D. Mittal did not raise any objection.
No objection was raised when arguments were addressed on 23.8.1985 nor any such request for adjournment was made. When the order was pronounced even then the counsel for the petitioner society Shri B.D. Mittal did not raise any objection. These facts are patent from the impugned order and the written statement filed by respondent No. 1. 11. The other argument that mere entries in pass books would not discharge the liability of respondent Nos. 2 to 4 would also not require any detailed consideration because of the view I have taken on the merits of the case. The entries in the pass books may not alone be sufficient but when the entries are accepted and owned by the person who had received the amount then it is not possible to reach a conclusion different than the one recorded by the revisional authority. Even the third argument raised by the learned counsel that statement of the Secretary of the petitioner-society Mange Ram is not believable cannot be considered as it is not within the scope of jurisdiction of this Court to do so while issuing a writ in the nature of certiorari. For the reasons stated above, this petition fails and the same is dismissed. However, there shall be no order as to costs. Petition dismissed.