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Himachal Pradesh High Court · body

2017 DIGILAW 449 (HP)

Rajinder Sharma v. State of H. P.

2017-05-02

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. The present writ petition has been maintained by the petitioner against the respondents praying therein for the following substantive relief : “i. That the impugned order dated 31.7.2013, Annexure P-5, dated 30.7.2013, Annexure P-8 and order dated 7.10.2013 Annexure P-7 may kindly be set aside and quashed and the respondents may kindly be directed to allow the present petitioner to complete his tenure as Member of HIMCOFED for 5 years which ends on July, 2018. ii. That the respondents may kindly be directed to decide the representation of the petitioner, (Annexure P-4) as per law wherein, as per Section 61 of the Cooperative Societies Act special audit of respondent No.3 federation may kindly be ordered with respect to the shortcomings/defect so raised by the audit party as per Annexure P-2.” 2. As per the petitioner, respondent No.3 being a Society registered under the H.P. State Cooperative Act, 1968 and Rules, 1971, under the name and style of “Himachal Pradesh State Cooperative Union Ltd” (hereinafter referred to as ‘HIMCOFED’). In the year 2008, the petitioner was elected as Director of the Federation at Una. The petitioner being its Head, to monitor/supervise/regulate the various functions/activities, as contemplated under bye-laws 2 (i) to (xvi) thereof in the entire State. The petitioner while discharging the duty of Chairman had conducted tours and visits to various Cooperative Institutions, who are members of respondent No.3 Federation including District Una and Kangra, during the period w.e.f. August 2008 till June, 2010 in official vehicle. As per Section 61 of the H.P. Cooperative Societies Act, 1968, accounts of every society was at least once in each cooperative year and by such date as may be prescribed be audited by the Registrar or any person authorized by him. While submitting the audit report, during the year 2008-2009 (1.4.2008 to 31.3.2009) recovery of Rs.63,206/- was pointed out against the petitioner. From the bare perusal of audit report, it is apparently clear that objection was raised by the audit party that the petitioner has not given the details of the objects of his visit note and tours. Respondent No.3 federation vide its letter, dated 3.5.2012, directed the petitioner to deposit the aforesaid amount within a period of one month, failing which recovery will be initiated against him, as per law. Respondent No.3 federation vide its letter, dated 3.5.2012, directed the petitioner to deposit the aforesaid amount within a period of one month, failing which recovery will be initiated against him, as per law. After receipt of such notice from respondent No.3, the petitioner made a representation dated 14.2.2013 against the action of respondent No.3, wherein it was specifically mentioned that the petitioner performed the tours and visits, as Chairman by official vehicle w.e.f. 1.4.2008 to 31.3.2009 in order to undertake various activities pertaining to education and development works of the federation. However, while the auditors have wrongly declared such journeys as unauthorized stating that the petitioner has not given the details of such journey. However, respondent No.3 vide its impugned order dated 31.7.2013, at his own has rejected the nomination of the petitioner on the board of HIMCOFED w.e.f. July, 2013, who is member of Board of HIMCOFED and his period will expire in July, 2018. The right of the petitioner as member of HIMCOFED has been taken away by respondent No.3 in a highly unreasonable manner and in violation of principles of natural justice and also contrary to the Cooperative Societies Act, 1968. The petitioner preferred the revision petition before respondent No.1 against the impugned order, but the same was also rejected vide its order dated 7.10.2013. Hence, the present petition. 3. In reply on behalf of respondent No.1, it has been contended that the petitioner preferred revision petition under Section 94 (1) of the H.P. Cooperative Societies Act, 1968 against the order dated 30.7.2013 and 31.7.2013. The revision petition filed by the petitioner was disposed of vide its order dated 7.10.2013. 4. Learned counsel appearing on behalf of the petitioner has argued that the journey was performed by the petitioner for official purpose and the recovery is shown with malafide intention and act of the respondents are highly arbitrary and liable to be quashed to meet the ends of justice. 5. On the other hand, learned Additional Advocate General has vehemently argued that recovery against the petitioner is reflected as per actual position, as the journey, petitioner’s performed was not connected in official capacity. 6. 5. On the other hand, learned Additional Advocate General has vehemently argued that recovery against the petitioner is reflected as per actual position, as the journey, petitioner’s performed was not connected in official capacity. 6. Learned counsel appearing on behalf of respondents No.3 has argued that the petitioner has performed the journey on his own and for private purpose, for which purpose, the office cannot pay and, so the amount is calculated, as per the rules and the petitioner is liable to pay the amount. 7. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 8. As per the petitioner, he was using the vehicle for official purpose only and this fact is well known to all the members of Board of Directors. The petitioner performed the journey to achieve the maximum in a short period of time. It is further case of the petitioner that respondent No.2 should have passed the order after hearing the petitioner and after going through the facts, as pointed by the auditors. The recovery has been shown in a most unreasonable manner and in violation of the principle of natural of justice and also in violation of the Co-operative Societies Act. Relevant para-7 of Annexure P-7, order of Additional Chief Secretary (Co-op) to the Govt. of Himachal Pradesh, reads as under: “7. From the arguments of ld. counsel, it immediately becomes clear that the audit report of 2008-09, in which certain recoveries had emerged against the petitioner, is an old matter. Further from the letter No.Himcofed/Audit/2009-10/650 dated 9.5.2011, it is clear that recoveries totaling Rs.63,206/- had been raised against the petitioner. About a year later, a reminder was also sent in May, 2011. Despite this, the petitioner does not appear to have made the required payment. It is also clear that the petitioner had been a defaulter for a long time. The actions of the RCS’s office and thereafter by the H.P. State Cooperative Development Federation and for recovery of dues pointed out by audit and certain consequences which will follow. The rules of natural justice do not mean that recoveries arising from audit paras have to go through the process of giving opportunity of being heard to the defaulter. The actions of the RCS’s office and thereafter by the H.P. State Cooperative Development Federation and for recovery of dues pointed out by audit and certain consequences which will follow. The rules of natural justice do not mean that recoveries arising from audit paras have to go through the process of giving opportunity of being heard to the defaulter. If defaulters in audit paras have to be given opportunity of being heard, then the whole process will be very time consuming and the officers of the Registrar, Co-operative Societies will not be able to do any other work except give opportunity of being heard to persons facing audit recoveries in the hundreds of co-operative societies in the State.” So, it has been held that the recoveries arising from audit paras have to go through as the process of giving opportunity of being heard to the defaulter is a time consuming process. This Court finds that when the petitioner was to be burdened with the recovery, it was incumbent upon the authorities to hear him before finally fixing the liability on his part. The action of respondents should be judicious as per law, but the respondents cannot fix the liability on the petitioner and penalized without affording him reasonable opportunity of being heard. The action of respondents without hearing the petitioner is unconstitutional and violative of the principle of natural justice and not sustainable in the eyes of law. So, the present petition is required to be disposed of at this moment. Accordingly, the present writ petition is disposed of only on this ground that the respondents before fixing liability of the petitioner as per the audit para should afford reasonable opportunity of being heard to the petitioner, in case the petitioner makes afresh representation that be also considered alongwith affording the petitioner an opportunity of being heard by the respondents. Consequently, the impugned order dated 30.7.2013 (Annexure P-8), order dated 31.7.2013 (Annexure P-5), and order dated 7.10.2013 (Annexure P-7) are required to be quashed being arbitrary. Accordingly, the present petition is allowed and order dated 30.7.2013 (Annexure P-8), order dated 31.7.2013 (Annexure P-5), and order dated 7.10.2013 (Annexure P-7), are quashed and set aside with a direction to the respondents to give reasonable opportunity to the petitioner of being heard and thereafter pass a reasoned order. 9. The petition is disposed of accordingly alongwith pending applications, if any. 9. The petition is disposed of accordingly alongwith pending applications, if any. In the peculiar facts and circumstances of the case, parties are left to bear their own costs.