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2016 DIGILAW 450 (KER)

N. MURALEEDHARAN, KANJIRAMVILA VEEDU, POOVATHOOR WEST v. STATE OF KERALA

2016-05-30

SHAJI P.CHALY

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JUDGMENT : This writ petition is filed by the petitioner seeking to quash Exts.P2 and P3 as illegal and without jurisdiction. Exts.P2 and P3 are proceedings initiated by the Joint Registrar (General) of Co-operative Societies dated 29.11.2004 and an order passed by the 4th respondent against Ext.P2 proceedings, submitted by the petitioner. 2. Brief facts of the disposal of the writ petition are thus: Petitioner was a clerk in the third respondent. Petitioner retired from service on 22.04.1992. Petitioner was given the charge of Managing Director of the Society during the period from 20.04.1991 to 27.04.1992. An enquiry under Section 65 of the Kerala Co-operative Societies Act was ordered, five years after the retirement of the petitioner by proceeding dated 17.07.1997. The enquiry conducted revealed involvement of 11 employees including the petitioner in mis-appropriation of an amount of Rs.1,45,015.10/-. Pursuant to which an inspection under Section 68(1) of the Act was ordered ten years after the retirement of the petitioner by a proceeding date 22.05.2002 and the inspection confirmed that eight employees including the petitioner had involvement in the mis-appropriation. Thereupon the amount payable by the petitioner was assessed at Rs.47,575.69/- with 18% interest from 01.01.1998. 3. After retirement, petitioner moved the statutory authorities seeking to realise gratuity as well as wages payable to him from the Society. The third respondent filed O.P. No. 15403/93 and O.P. No. 10893/95 before this Court challenging the stay order granted by the Government against the Revenue Recovery proceedings initiated to recover the amounts due under the orders passed by the authority under the Payment of Gratuity Act and the Payment of Wages Act, remaining due to the petitioner. This Court by Ext.P1 dated 09.04.1996 ordered that the Government or the District Collector have no power to stay the recovery of the amount covered by the orders passed by the statutory authorities referred to above. Consequent to recovery action initiated by the first respondent, the entire amount was recovered and paid to the petitioner. Thereafter, the third respondent Society has become defunct. 4. However, pursuant to the proceedings initiated under Section 65, enquiry under Section 69 was completed and action was initiated to recover the amount quantified against the petitioner viz., Rs.47,575.69 with 18% interest from 01.01.1998 evident from Ext.P2 proceedings. 5. Aggrieved by the said action, petitioner preferred revision before the first respondent. Thereafter, the third respondent Society has become defunct. 4. However, pursuant to the proceedings initiated under Section 65, enquiry under Section 69 was completed and action was initiated to recover the amount quantified against the petitioner viz., Rs.47,575.69 with 18% interest from 01.01.1998 evident from Ext.P2 proceedings. 5. Aggrieved by the said action, petitioner preferred revision before the first respondent. But however, the first respondent has dismissed the revision as per Ext.P3 order. It is thus challenging Exts.P2 and P3 order, petitioner has approached this Court by filing this writ petition. 6. Heard learned counsel for the petitioner and the learned Government Pleader. 7. The sole question to be considered in this case is whether any interference is necessitated against Exts.P3 and P4 orders passed by the Joint Registrar of Co-operative Societies and the first respondent respectively. Going by Ext.P2 order, it can be seen that the Registrar with the powers vested on him under Section 65 of the Kerala Co-operative Societies Act (hereinafter called "the Act") has made an enquiry and found that several discrepancies have taken place in the running of the 3rd respondent Society and involvement of employees were detected and petitioner is one among them. It was pursuant to the said finding in Section 65, other proceedings under Sections 66 to 68 were taken and ultimately found that petitioner is liable to reimburse the loss suffered by the Society, and the amount due from the petitioner was also quantified as specified above. Ext.P2 order is an order passed by the Registrar based on evidence and factual circumstances. Since the petitioner has approached the Government by filing revision the factual circumstances was re-appreciated by the first respondent taking into account, the contentions put forth by the petitioner in the revision memorandum and passed Ext.P3 order. 8. The sole contention raised by the learned counsel for the petitioner in this writ petition is that since the proceeding leading to Ext.P2 was instituted by the Registrar of the Co-operative Societies only after five years of retirement of the petitioner the actions so initiated has no sustenance of law and therefore, the same is to be quashed. 8. The sole contention raised by the learned counsel for the petitioner in this writ petition is that since the proceeding leading to Ext.P2 was instituted by the Registrar of the Co-operative Societies only after five years of retirement of the petitioner the actions so initiated has no sustenance of law and therefore, the same is to be quashed. However, the learned Government Pleader has taken me through the provisions of Sections 65 to 68 and contended that Section 65 proceedings initiated by the Registrar is independent of any disciplinary proceedings as contemplated under the Act and Rules and therefore, whether the petitioner was in service or he is retired is not a subject matter of concern under the said provisions. On a harmonious reading of Sections 65 and 68, it can be seen that the phraseology employed therein is "any person who is or was interested with the organisation or management". Therefore, I am satisfied that the retirement of the petitioner or the continuance in service is not a subject matter to be considered in an enquiry conducted under Section 65, by the Registrar in his routine business by virtue of the powers conferred on him under Section 65 of the Act. Yet another contention raised by learned counsel for the petitioner is that even though audit was conducted no such discrepancy was pointed out in the audit and therefore the findings rendered by the Registrar cannot be sustained under law. There also I find that even if there is an audit report and no discrepancy was found out, still Registrar is vested with powers under Section 65 of the Act to conduct an enquiry and to take appropriate actions in accordance with law. 9. In that view of the matter, petitioner could not point out any circumstance warranting interference of this Court in a factual finding rendered by the competent authority under Ext.P2 and the first respondent in Ext.P3 order in revision. It is well settled that unless there are circumstances warranting interference by invoking the writ jurisdiction in a factual finding this Court will not be justified in interfering with the orders passed by the respective statutory authorities. It is well settled that unless there are circumstances warranting interference by invoking the writ jurisdiction in a factual finding this Court will not be justified in interfering with the orders passed by the respective statutory authorities. On a perusal of the records and pleadings, I do not find either the Joint Registrar in Ext.P2 and the Government in Ext.P3 has committed any error of jurisdiction or irrationality or illegality warranting interference of this Court by invoking discretionary jurisdiction conferred on this Court under Article 226 of the Constitution of India. Therefore, the writ petition fails and accordingly, the same is dismissed. 10. However, I find that stay was granted by this Court on condition that the petitioner deposits an amount of Rs.10,000/- within one month from the date of the order i.e., 20.09.2007. The learned counsel for the petitioner at this point of time submitted that 18% interest ordered may be cancelled. Taking into account, the facts and circumstances and the payment of Rs.10,000/- as directed by this Court, allegedly deposited by the petitioner, I think an equitable relief sought for by the petitioner to waive of the interest can be considered by this Court. In that view of the matter, the interest of 18% ordered as per Ext.P2 is deleted. The balance amount can be recovered by the respondent in accordance with law. The writ petition is disposed of accordingly.