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2020 DIGILAW 1196 (KAR)

Siddegowda S/o Koosegowda v. State Of Karnataka

2020-06-23

KRISHNA S.DIXIT

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ORDER : Petitioner being Chief Executive Officer of the subject Cooperative Society, is invoking the writ jurisdiction of this court under Articles 226 & 227 of the Constitution of India for assailing the orders dated 04.05.2020, 19.05.2020 & 20.05.2020 made by the 3rd respondent ARCS respectively at Annexures - B, C & D whereby, an inquiry u/s 64 of the Karnataka Cooperative Societies Act, 1959, has been directed in addition to lodging of police complaint. 2. Respondents 1 to 4 are represented by the learned Addl. Govt. Advocate; notice to 5th respondent-Cooperative Bank is dispensed with since it is neither necessary nor proper party for adjudication; learned Senior Advocate Mr.Ravi Varma Kumar represents the impleading applicant at whose instance, the impugned proceedings have come out. 3. SUBMISSIONS FROM PETITIONER’S SIDE: (a) Learned Senior Advocate Mr.Jayakumar S Patil appearing for counsel on record for the petitioner finds fault with the impugned orders because the lapses alleged against the petitioner do not amount to any culpable act worthy of inquiry u/s 64 of the Act, they being perfectly in conformity with clauses 14, 17, 29, 31 & 38 of the Govt. Circular dated 10.08.2017; he also points out other paragraphs of the said Circular which prescribe stage wise procedure at various levels even beyond petitioners’ for possessing the claims for the crop loan waiver/reprieve or such other benefits; and (b) Mr. Patil further submits as to untenability of the direction for filing of police complaint against the petitioner when Section 64 inquiry proceedings are yet to commence; he assails the direction for keeping the petitioner in suspension when all the documents are already seized and there is nothing which petitioner sitting in the arm chair of Secretary can perpetrate against the free & fair inquiry; this apart, he opposes impleading application stating that the applicant is alien to the statutory proceedings and therefore, cannot gain entry to the array of parties in this petition; so submitting, he seeks allowing of the petition. 4. SUBMISSIONS FROM RESPONDENTS’ SIDE: (a) Learned AGA appearing for the official respondents and the learned Sr. 4. SUBMISSIONS FROM RESPONDENTS’ SIDE: (a) Learned AGA appearing for the official respondents and the learned Sr. Advocate Mr.Ravi Varma Kumar appearing for the impleading applicant, vehemently resist the petition contending that the allegations are grave in nature; the culpable act has resulted into misappropriation of crores of rupees; petitioner himself has admitted his guilt by depositing the misappropriated amount which again is in lakhs; the chair of Secretary in a Cooperative Society being what it is, there will be lot of scope for manipulation of records and misdirecting the inquiry if petitioner is permitted to continue in the said chair; both the counsel bank upon the very same Govt. Circular banked upon by the petitioner side; and (b) learned Sr. Advocate Mr. Ravi Varma Kumar submits that the impleading applicant is the person on whose complaint the impugned inquiry proceedings have originated and therefore, he has locus standi to oppose the writ petition as a proper party if not a necessary party; his entry to the array of parties would facilitate an effective adjudication of the lisat hands; so contending, he seeks leave for impleadment of the applicant as the sixth respondent to the petition. 5. 5. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court grants a selective reprieve as under and for the following reasons: (a) there is lot of force in the contention of impleading applicant that he has locus standi in the matter since he happens to be the complainant in the matter and from his complaint, the impugned proceedings emanated; even otherwise, the presence of the said applicant in the cause title would facilitate due adjudication of the lisin the writ petition sans any prejudice to any of the parties thereto; this apart, the writ courts have special considerations in treating the prayer for impleadment of a complainant when the challenge is to the inquiry proceedings involving misappropriation of crores of public money; therefore, the impleading application having been favoured, the applicant is ordered to be arrayed as sixth respondent to the writ petition; (b) the allegations on the basis of which section 64 inquiry is ordered are serious in nature; the alleged culpable acts of the petitioner and others relate to misappropriation of crores of money having the nature of public fund; petitioner himself vide letter dated 10.02.2020 at Annexure - G mentions about excess payment made in favour of one hundred members towards loan waiver and that the same has been reimbursed to the Society; this amount even according to the petitioner is to the tune of Rs.51,27,000/(Rupees Fifty One Lakh Twenty Seven Thousand) only; whether this amounts to admission of guilt or otherwise is a matter for the inquiry; (c) whether the benefit of loan waiver has been surreptitiously duplicated in favour of selective members of the Society who are large in number, in gross violation of the procedure prescribed under the Govt. Circular dated 10.08.2017 at Annexure - H again is the subject matter of inquiry which cannot be interdicted by this Court by undertaking a roving enquiry; the writ jurisdiction being what it is, this Court cannot ignore the inbuilt limitations when the case involves highly disputed facts whose existence or otherwise can be ascertained only in a statutory inquiry now ordered, where both the sides will have abundant opportunity to put forth their versions and counter versions especially when there is no dispute as to the existence of power to conduct inquiry; (d) there is no force in the contention of learned Sr. Advocate Mr.Patil that no useful purpose would be served by placing the petitioner under suspension from the post which he had held; learned AGA is more than justified in contending that once the power to suspend is not in dispute, ordinarily it’s exercise by the statutory authority does not merit deeper examination especially when the misappropriation of huge public funds is being enquired into; therefore, even in service jurisprudence, the writ courts rarely interfere in the matters of suspension or the like in contemplation or during the pendency of the inquiry; it hardly needs to be mentioned that a person in authority has more abuse potential than when he is not; (e) there is lot of sense in the submission of learned Sr. Advocate Mr.Patil that when section 64 inquiry is yet to commence, it is unwise and imprudent to subject the petitioner to a police investigation; the Apex Court in Pepsi Foods Ltd and Another Vs. Special Judicial Magistrate and Others, 1998 SCC (CRI) 1400 observed: “Criminal law cannot be set into motion as a matter of course………”; subjecting an office bearer of the Society to undergo parallel proceedings is not desirable; after all, if the inquiry proceedings result into findings of guilt, then it is always open for lodging of police complaint; even delay & latches for assailing the police proceedings in such cases in such circumstances would not arise. In the above circumstances, this Writ petition marginally succeeds; a writ of certiorari issues quashing only the direction for lodging of police complaint against the petitioner, the rest of the impugned orders having been retained intact; the subject inquiry proceeding shall be accomplished within an outer limit of three months; the lodging of police complaint would depend upon the outcome of the said inquiry. The observations made herein above being confined to disposal of the writ petition shall not influence the inquiry proceedings even in the least; all contentions of the parties are kept open. Costs made easy.