ORDER Heard the learned counsel appearing for the petitioners and the learned Special Government Pleader for the respondents. 2. In these two writ petitions, the petitioners have chosen to challenge the order of the first respondent dated 14.7.2004 insofar as it relates to the petitioners under the impugned order of the second respondent purported to have been issued under Section 87 of the Tamil Nadu Co-operative Societies Act. The first, respondent has issued surcharge proceedings against the petitioner in W.P. No. 1064 of 2004 (S. Marimuthu) for the recovery of the amount due to loss to the second respondent to the extent of Rs. 1,17,213/-. Likewise, in respect of the petitioner in W.P. No. 1065 of 2004 (I. Jeyaraman) for having caused loss to the second respondent Society an amount of Rs. 3,82,551/- along with interest at the rate of 18% was directed to be paid jointly along with other persons. 3. The writ petitioners while working as Special Officer of the second respondent Co-operative Society have paid salary to one Mrs. K.R. Latha. Her appointment was subsequently terminated as illegal and audit objections were raised. It was fixing the responsibility on the petitioners that she was appointed illegally, the above said impugned proceedings came to be passed. The said impugned order is challenged by the petitioners on various grounds including that when a vacancy of a typist arose in the second respondent Society one Mrs. K.R. Latha who was then working as a typist in Pandiyan Roadways Corporation Workers Co-operative Stores- Limited, Madurai, has applied for the post, and after obtaining concurrence from the said Workers Co-operative Stores Limited and no objection, a resolution of the second respondent was passed and sent to the Registrar of Co-operative Societies who issued order through the first respondent to appoint the said Latha as a typist in the second respondent Society and therefore, there was no justification in fixing the responsibility on the petitioners. The petitioners have only appointed as per the orders of the Registrar under the Tamil Nadu Co-operative Societies Act and there was no negligence on their part. 4. Moreover, the petitioners have challenged the impugned proceedings also on the ground of laches or delay, namely, that when the appointment was made in respect of said Latha on 8.9.1996, the show cause notice came to be issued on 17.1.2004 after 7 years. 5. 4. Moreover, the petitioners have challenged the impugned proceedings also on the ground of laches or delay, namely, that when the appointment was made in respect of said Latha on 8.9.1996, the show cause notice came to be issued on 17.1.2004 after 7 years. 5. The writ petitioner in W.P. No. 1064 of 2004 has in fact appeared before the Appellate Authority under the,Tamil Nadu Shops and Establishments Act appeal filed by the said K.R. Latha and given evidence as R. W. 1 and fairly defended the second respondent. In fact as against the order of the Appellate Authority under the Tamil Nadu Shops and Establishments Act, a legal opinion was given by the Government Pleader from the High Court, Madras stating that it is not a fit case for further filing of any writ petitions against the order of the Appellate Authority under the provisions of Tamil Nadu Shops and Establishments Act. 6. That apart, the petitioners have not in their individual capacity made the appointment of the said Latha and they have only implemented the orders of the Registrar of Co-operative Societies. It is the further case of the petitioners that when once the said petitioner in W.P. No. 1064 of 2004 has taken effective steps to defend the second respondent imputing motive on the Appellate Authority, namely, quasi-judicial authority is degrading the integrity of an officer appointed under law. It is the further case of the petitioners that even assuming that any irregularities in the appointment of the said Latha is there, it does not attract Section 87 of the Tamil Nadu Co-operative Societies Act. In fact, when a proposal to take disciplinary action against the petitioner in W.P. No. 1065 of 2o04 was sought to be made, the Government by G. O. (T) No. 170 dated 30.6.2003 has decided not to proceed with the disciplinary proceedings after considering the explanation submitted by him. While so, the impugned proceedings of the first respondent against him under Section 87 of the Tamil Nadu Co-operative Societies Act for surcharge is unsustainable. 7. On the other hand, it is the case of the second respondent who has filed the counter affidavit that as per the decision of the Full Bench of this Court, no writ petition lies against the co-operative institution as a matter of course. 7. On the other hand, it is the case of the second respondent who has filed the counter affidavit that as per the decision of the Full Bench of this Court, no writ petition lies against the co-operative institution as a matter of course. Further, it is the case of the second respondent that the impugned order is appealable under Section 152 of the Tamil Nadu Co-operative Societies Act and therefore, this writ petition is not maintainable. It is the further case of the second respondent that when the petitioners were holding the post of supervising the Co-operative Society as Sub-Registrar, the proposal for appointment of Latha, her initial appointment was not proper since she has not worked as typist for 10 years and her services were not regularised in the society where she was working and in such circumstances, both the Societies have not passed resolution for relieving her and also taking her and therefore, the proceeding becomes void ab initio. The appointment of said Latha cannot be treated as an appointment by transfer by prior approval, but a fresh appointment. Since it is an illegal appointment by payment of salary to her, the second respondent had to incur huge loss. It is proved on the part of the petitioners that they have wrongly recommended the proposal for transfer based on false particulars and it was based on the audit objection, the proceedings under Section 87 of the Tamil Nadu Co-operative Societies Act was initiated. The period of limitation mentioned in Section 87(1) of the Act, namely, 7 years for the purpose of initiating action should be taken from the date of knowledge which came to the limelight only after the audit report. The audit objection was received in October 2003 and it was only based on the said objection the second respondent came to know about the irregularities committed by the petitioners. Therefore, according to the second respondent, the cause of action for invoking powers under Section 87 of he Act is the source of information under Sections 80, 81, 82, 83 and 84 of the Act which is based on inspection and investigation of books etc. 8. Mr. R. Singaravelan, learned counsel appearing for the petitioner would submit that apart from the fact that for the action to be initiated under Section 87 of the Act, a fraudulent intention or willful negligence must be the basic requirement. 8. Mr. R. Singaravelan, learned counsel appearing for the petitioner would submit that apart from the fact that for the action to be initiated under Section 87 of the Act, a fraudulent intention or willful negligence must be the basic requirement. In the present case, it was not as if the petitioners have made appointment of said Latha but it was based on the resolution passed by the second respondent itself as approved by the first respondent as per the direction of the Registrar of the Co-operative Societies as a Special Officer, performing supervisory function, she was appointed and the petitioners cannot independently make any decision. Therefore, according to the learned counsel for the petitioner there is no willful or deliberate misconduct or negligence. He would rely upon the judgment of this Court in B.S. Somasundaram v. Thanjavur District Co-operative Supply Market Society Ltd., represented by the Liquidator, Tiruvarur and Others, (1983) 2 MLJ 523 by referring to the corresponding Section 71 of the old Act of 1961 which is equivalent to the present Section 87 of the new Act to say that it is not merely negligence that attracts the surcharge proceedings but it must be proved to be a willful or deliberate conduct. He has placed reliance on another judgment reported under the said old Act in Sathyamangalam Co-operative Urban Bank Limited v. Deputy Registrar of Co-operative Society and Another, (1980) 2 MLJ 17 for the same proposition. 9. Reliance has also been placed on a judgment of the Division Bench of this Court by referring to the said Act particularly Section 71 in P. Karuppiah v. Deputy Registrar of Co-operative Societies and Another, 1989 WLR. 272. Further reliance has also been placed on the judgment of this Court in P. N. Chockappan and Others v.Special Tribunal for Co-operative Cases, High Court Campus, Madras and Others, (1999) 1 MLJ 587 for the same proposition. To show that the negligence under Section 71 of the old Act should be willful negligence, he has also relied upon another judgment in M. Sambandam v. Deputy Registrar (Credit) Co-operative Societies, Mylapore, Madras and Others, 1999 (3) MLJ 310 . To show that the negligence under Section 71 of the old Act should be willful negligence, he has also relied upon another judgment in M. Sambandam v. Deputy Registrar (Credit) Co-operative Societies, Mylapore, Madras and Others, 1999 (3) MLJ 310 . The learned counsel would also submit that inasmuch as the impugned proceedings are without jurisdiction, availability of alternative remedy of filing of appeal under Section 152 of the Tamil Nadu Co-operative Societies Act is not a bar for invoking the jurisdiction of this Court under Article 226 of the Constitution of India. For that proposition, he has also placed reliance on the judgment of the Supreme Court in State of Himachal Pradesh v. Raja Mahendra Pal and Others, AIR 1999 SC 1786 : 1999 (4) SCC 43 . It is also submitted by the learned counsel for the petitioners that even otherwise after two years of filing of the writ petition, the petitioners cannot be denied the right in the writ petition on the basis of alternative remedy. 10. On the other hand, Mr. Seenivasagam, learned counsel appearing for the second respondent has placed reliance on the judgment of the Full Bench of this Court reported in 2000 (4) CTC 556 wherein the Full Bench has held that filing of the writ petition against the order passed under the Co-operative Societies Act, cannot be entertained as a matter of course. Therefore, according to the learned counsel, the writ petition is not maintainable especially in the circumstances that an appeal lies against the order under Section 87 of the Act to the Appellate Authority under Section 152 to the Tribunal. The learned counsel would submit that the 7 years period of limitation under Section 87 of the Tamil Nadu Co-operative Societies Act has to be construed from the date of knowledge as per Sections 80, 81, 82 and 83 and in the present case it was only after the audit report and enquiry report was filed in October 2003, the proceedings under Section 87 were initiated and therefore, there is no delay on the part of the second respondent in having initiated the surcharge proceedings. It was only after the submission of such reports the proceedings were initiated by the first respondent. It was only after the submission of such reports the proceedings were initiated by the first respondent. The receipt of the report under Section 82 of the Tamil Nadu Co-operative Societies Act was on 17.1.2004 and therefore, it can never be said that the proceedings initiated is barred by limitation. The learned counsel would also submit that as per rules framed under Section 149(2) of the Act, the employment of the second respondent should be after notifying the employment exchange, in such circumstances, the appointment of the said Latha would amount of breach of trust and against the norms and it should be treated as willful negligence on the part of the petitioners. The learned counsel contended that while the said Latha was terminated on 21.9.2002 the appeal filed by her under Section 41(2) of the Tamil Nadu Shops and Establishments Act in which the petitioners in W.P. No.1064 of 2004 have given evidence on behalf of the second respondent, an order has been passed by the Appellate Authority under the said Act on 3.10.2002 which is within 12 days from the date of termination of the said Latha and according to the learned counsel for the second respondent it speaks volumes about the involvement of the petitioners in colluding in the Shops and Establishments appeal. 11. I have heard the learned counsel for the petitioners as also the respondents and perused the entire records. 12. At the outset, as rightly pointed out by the learned counsel for the petitioners, the law is well settled. In any of the surcharge proceedings the condition precedent is that the liability can be fixed on the employees of the Co-operative Societies when it is found that they were intentionally committing some mistake and negligence. The judgments referred to by the learned counsel for the petitioners which relate to Section 71 of the Tamil Nadu Co-operative Societies Act, 1961 which is in pari materia, the same as that of Section 87 of the present Tamil Nadu Co-operative Societies Act, 1983, show categorically that in all those proceedings of surcharge, the condition precedent is that, there must be willful negligence on the part of the co-operative employees. 13. 13. In view of the facts and circumstances of the case which show that by making appointment of the said Latha who was admittedly not appointed by the petitioners on their own accord but on the basis of the direction issued by the Registrar of Co-operative Societies as seen from the letter of the first respondent himself in his letter dated 9.8.1996, the petitioner cannot be held to be solely responsible for her appointment. 14. A reference to the said letter dated 19.3.2001 written by the first respondent to the Special Officer by making a reference of a letter of the Registrar dated 26.8.1996 would show that the Registrar of Co-operative Societies has requested to inform the matter about the appointment of Latha as typist and therefore, it can never be said that the appointment of said Latha was directly done by the petitioners. 15. Likewise, a reference about the proceedings of the second respondent dated 20.8.1996 also refers about the Registrar’s direct letter dated 15.3.1996. Eventhough the said letter dated 20.8.2005 has been signed by the petitioner in W.P. No. 1065 of 2004 as Special Officer (Housing), the same is stated to have been passed based on the communication of the Registrar of Co-operative Societies. 16. In view of the same, I have no hesitation to come to the conclusion that the appointment of the said Latha is not by any stretch of imagination by the petitioners on their own accord. In any event there are absolutely no records to show that there was any willful negligence on the part of the petitioners. 17. The contentions raised by the learned counsel for the second respondent imputing motive on the Appellate Authority under the Shops and Establishments Act which was initiated by K.R. Latha under Section 41(1) of the said Act challenging her termination by the second respondent is not appreciable. 17. The contentions raised by the learned counsel for the second respondent imputing motive on the Appellate Authority under the Shops and Establishments Act which was initiated by K.R. Latha under Section 41(1) of the said Act challenging her termination by the second respondent is not appreciable. The mere fact that the said Latha was terminated from service on 21.9.2002 and the Appellate Authority under the Shops and Establishments Act has passed orders in the appeal on 3.10.2002 setting aside the termination order itself cannot be a ground to impute motive and in any event that can never be a ground for taking action against the petitioner in W.P. No. 1064 of 2004 (S. Marimuthu) who was Special Officer and has infact given evidence before the Appellate Authority as R.W. 1 in support of the second respondent. An attempt made on behalf of the second respondent to impute such motive is unbecoming of a public authority which cannot be appreciated or encouraged in the judicial parlour. 18. There is one other situation that admittedly in respect of the writ petitioner in W.P. No. 1065 of 2004, the Government itself has dropped further departmental action as seen in the G.O.(T)No. 170 dated 30.6.2003. While so, it is not explained as to how the surcharge proceedings has been initiated against the said petitioner also. This only shows that the respondents somehow or other want to implicate the petitioners in respect of certain act which was not exclusively within the control of the petitioners. While admittedly, the appointment of the said Latha itself was on 9.8.1996, the show cause notice issued in respect of the conduct to the petitioners is on 17.1.2004 which is clearly beyond the period of 7 years. 19. A reference to the impugned order would show that the impugned proceedings under Section 87 of the Tamil Nadu Co-operative Societies Act having initiated by the first respondent suo motu and there is absolutely no reference about any audit report or enquiry report. The counter filed by the second respondent, now developing as if the enquiry report has subsequently revealed the misconduct, is unacceptable for the simple reason that such report has not been mentioned in the impugned order. 20. In view of the reasons stated above, in my considered view, impugned order passed by the first respondent insofar as it relates to the petitioners is not sustainable. 21. 20. In view of the reasons stated above, in my considered view, impugned order passed by the first respondent insofar as it relates to the petitioners is not sustainable. 21. In view of the same the impugned order passed by the first respondent insofar as it relates to the petitioners in these writ petitions is quashed and the writ petitions stand allowed. There is no order as to costs. Consequently, connected W.P.M.Ps. are also closed.