Seetharamaswamy, WG District v. Prl. Secretary Coop. Dept. Hyderabad
2024-08-30
TARLADA RAJASEKHAR RAO
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DigiLaw.ai
ORDER : (Tarlada Rajasekhar Rao, J.) : The Writ Petition is filed under Article 226 of Constitution of India for the following relief/s: “…to issue a Writ, Order or direction more particularly one in the nature of Writ of Certiorari by calling the records on the file of the AP Co-operative Tribunal at Vijayawada, in O.A. No.40 of 2011 dated 02.06.2014, conforming the surcharge orders in RC.No.673/2005/B dated 15.10.2008 of the 2nd respondent is illegal, arbitrary and against the principles of natural justice, contrary to the provisions of the APCS Act 1964, violation of Article 14 & 21 of Constitution of India, Quash the same and to pass such other order or orders ….. 2. The present Writ Petition is filed by one Seeta Rama Swamy, who is ex-president of Primary Agricultural Society, Rangapuram (hereinafter called as Society), assailing the order in O.A. No.40/2011, dated 02.06.2014. 3. The unnecessary facts are shorn off and the relevant facts are that the petitioner herein was elected as Chairman of Rangapuram Society for the period from 1995 to 2002. An enquiry was initiated under Section 52 of Andhra Pradesh Cooperative Societies Act, 1964, (hereinafter referred to as the Act), on 27.08.2002, against the Society and appointed Sub- Divisional Cooperation Officer, Chintalapudi, as Inspecting Officer. The Inspecting Officer conducted detailed enquiry and submitted a report to the District Cooperative Officer, Eluru, by pointing out certain irregularities had been committed by the then Secretary and Salesman/Attender by name V.B.V.S.S. Anjaneya Sastry. The Enquiry Officer did not find fault against the petitioner and no allegations made against him in the enquiry report. The enquiry officer recommended for recovery of an amount of Rs.4,46,745/- from the Secretary and Rs.25,125/- from the Salesman. Basing on the enquiry report, the Rangapuram Society, filed surcharge proceedings No.6/2002-03 for issuance of surcharge order under Section 60(1) of the Act, against the individuals. 4. During the pendency of the proceedings, a petition under order 1 Rule 10 is filed to implead the petitioner as one of the party to the surcharge proceedings by making certain irrelevant and untenable allegations. The 2nd respondent without considering the contentions raised in the counter affidavit filed by the petitioner herein, allowed the said petition by an order dated 12.05.2005.
The 2nd respondent without considering the contentions raised in the counter affidavit filed by the petitioner herein, allowed the said petition by an order dated 12.05.2005. Assailing the same, the petitioner herein filed the Writ Petition No.14744 of 2005 and the said Writ Petition was allowed and the Order dated 12.05.2005 was set aside by the erstwhile High Court of Andhra Pradesh at Hyderabad, vide order dated 07.12.2006 and however, it is observed in the order that “it will not preclude the authorities from conducting any other enquiry as per law against the petitioner and proceed with the matter”. 5. Pending disposal of the aforesaid Writ Petition, the 2nd respondent-The Deputy Registrar of Cooperative Societies, Eluru has initiated an enquiry under Section 51 of the Act and appointed an enquiry officer for the very same allegations, for which an enquiry was already conducted under Section 52 of the Act and an enquiry report was submitted. Without finalizing the surcharge proceedings or without accepting or rejecting the enquiry report submitted to the 2nd respondent against earlier inspection conducted under Section 52 of the Act and conducted under Section 51 of the Act. 6. Against the report, surcharge proceedings were initiated against the petitioner herein and the same was assailed in O.A. No.40 of 2011, on the file of the Andhra Pradesh Cooperative Tribunal at Vijayawada. Learned Tribunal has dismissed the O.A. with the observation that the allegations against the appellant (writ petitioner) have been proved, accordingly, the 1st respondent has passed surcharge order against the appellant and Secretary basing upon the reasons assigned by the Deputy Registrar, Cooperative Societies considering the surcharge orders and dismissed the appeal filed by the petitioner under Section 76 of the Act. 7. Assailing the said order, the present Writ Petition came to be filed on the sole ground that unless the enquiry conducted under Section 52 of the Act, is wiped off, the 2nd respondent i.e. Deputy Registrar of Cooperatives of Societies/Enquiry Officer cannot conduct enquiry under Section 51 of the Act. Therefore, prayed to allow the Writ Petition and to set aside the impugned order passed in O.A. No.40/2011, and also relied on the judgment of the erstwhile High Court of Andhra Pradesh, at Hyderabad in Co-operative Electric Supply Society Limited (CESS), Sircilla, Karimnagar District, rep. by its Director v. State of Andhra Pradesh rep.
Therefore, prayed to allow the Writ Petition and to set aside the impugned order passed in O.A. No.40/2011, and also relied on the judgment of the erstwhile High Court of Andhra Pradesh, at Hyderabad in Co-operative Electric Supply Society Limited (CESS), Sircilla, Karimnagar District, rep. by its Director v. State of Andhra Pradesh rep. by its Principal Secretary(Co-operation) and others, 2012 (4) ALT 322 for the proposition that once enquiry ordered and report submitted, held, not competent for respondents to order fresh enquiry. 8. Learned counsel appearing for the respondents would submit that the enquiry conducted against the petitioner is under Section 51 of the Act and earlier conducted enquiry is under Section 52 of the Act and there is variance of conducting enquiry under the two provisions and also contended that the judgment referred by learned counsel for the petitioner is not applicable as wherein that case, enquiry was conducted twice against the same incumbent and wherein this case enquiry was conducted under Section 52 of the Act against one Secretary and the attender of the Society and the enquiry under Section 52 is altogether different from the enquiry under Section 51 of the Act and therefore prayed to dismiss the Writ Petition. 9. In view of the above said contentions, it is imperative to extract Sections 51 and 52 of the Act. Section 51 of the Act envisages that audit shall be conducted on the accounts of the Society at least once in a year and shall issue an audit certificate with such particulars as may be prescribed, before the end of the succeeding cooperative year, such audit shall primarily cover examination of the debts, overdue, if any verification of the cash balance, and securities and valuation of the assets and liabilities of the society. Section 52 of the Act authorizes to inspect books of the Society. 10.
Section 52 of the Act authorizes to inspect books of the Society. 10. Ordering an inquiry under section 51 of the act is an administrative measure to make sure the Registrar can initiate surcharge proceedings under Section 60 or not, and to hold an enquiry into the constitution, working and financial condition of a society whether any redress can be provided for any misappropriation, misapplication of funds, fraudulent retention, breach of trust, or willful negligence of society's assets on his own motion and shall, on the application of a society to which the society concerned is affiliated, or of not less than one third of the members of the Committee, or of not less than one fifth of the total 'number of members of the society. 11. Section 52 (1) of the Act, which mandates that no such inspection on the creditor's application shall be made unless the creditor satisfies the Registrar that the debt in question is a sum then due from the Society and the Society has failed to pay the same within a reasonable time from the date of the demand made by him. This clearly indicates that the purpose of inspection of the books of the Society is to verify whether the Society is properly managing its financial affairs and discharging its debts in time or not. 12. Thus, the scope of inspection under Section 52 of the Act is limited to the financial affairs unlike the enquiry under Section 51 of the Act, which is wide enough to encompass all the matters relating to the Society. 13. As contended by the learned counsel appearing for the society, the enquiries under Sections 51 and 52 are entirely different and different purposes. The contention of the petitioner is that the surcharge proceedings could not be passed without wiping up the earlier enquiry under Section 52 of the Act for the second time, unless rescind, cancelled or varied the earlier order would be null and void and is liable to be quashed cannot be accepted as the consequences of inquiries under section 51 and inspections under section 52 are different, and therefore, they have different connotations and cannot be equated. 14.
14. The judgment relied by the petitioner is not applicable to the facts, as the enquiry was conducted twice against the same incumbent and therefore, the court therein has held that no fresh enquiry cannot be conducted against the same individual twice. 15. In the present case, the enquiry was conducted against the petitioner herein under Sections 51 and inspection under section 52 is against other persons wherefore the contention raised by the petitioner that unless the earlier proceedings under section 52 inspection carried is wiped, no consequence enquiry cannot be conducted has no legal sanctity and the contention falls to earth, no merit. 16. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. As a sequel, interlocutory applications, if any pending in this Writ Petition shall stand closed.