Dismissed

The Fishermen Cooperative Society, v. The Commissioner of Fisheries

Telangana HC26 Jun 2013WP/27408/2005

Case brief

AI extract

What is this about?

This High Court dismissed a writ petition challenging an order appointing an enquiry officer under the Andhra Pradesh Cooperative Societies Act to investigate misappropriation allegations against a society President, holding the officer justified ignoring a prior report due to lack of clear findings.

What did the court decide?

Writ Petition dismissed with no costs and miscellaneous applications closed.

The Fishermen Cooperative Society, Vs The… — Cooperative Societies | Telangana HC (2013)

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THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO

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WRIT PETITION No.27408 of 2005

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ORDER:

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This Writ Petition is filed challenging the order of the 3^rd respondent in proceedings Rc.No.221/E/2005 dt.14-12-2005.

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The petitioner is a Fishermen Cooperative Society registered under the provisions of the Andhra Pradesh Cooperative Societies Act, 1964 (for short “the Act”). There were several complaints made by members and Directors of the said society against its President alleging that he was not conducting the meetings regularly, not informing to all the members about meetings and that he also misappropriated the Society funds.

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Four Directors of the petitioner-Society submitted a petition against the President to the respondents reiterating the said allegations. After receiving the petition and endorsement from the 1^st respondent, the Assistant Inspector of Fisheries, Kanigiri was directed to enquire into the matter. As he was busy with disposal of tanks and other works, the Fisheries Development Officer (Coast), Ongole was directed to conduct an enquiry on the allegations made by four Directors of the petitioner Society. He conducted enquiry and submitted a report in Letter No.FDO Enquiry/2005 dt.28-04-2005.

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After considering the report, the 3^rd respondent, in proceedings Rc.No.221/E/2005 dated 24-05-2005, in exercise of his powers under Section 52 of the Act, appointed one A.Amrutha Rao, Fisheries Development Officer, Durgi to conduct inspection of the petitionerSociety under Section 52 of the Act. But the said Officer expressed his inability to conduct inspection on the ground that he was not well

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acquainted with the Cooperative law and stated that he would not be able to conduct such an inspection. Therefore, the 3^rd respondent, by his proceedings vide Rc.No.221/E/2005 dated 6-8-2005 cancelled the proceedings

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dt.24-05-2005 appointing the said P.Amrutha Rao to conduct enquiry under Section 52 of the Act.

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Thereafter the 3^rd respondent issued proceedings 221/E/2005 dt.06-08-2005 appointing one P.Pandurangaiah, Assistant Registrar, Office of District Cooperative Officer, Ongole to conduct a statutory enquiry, with special reference to the constitution, working and financial position of the petitioner-Society under Section 51 of the Act and submit his report within 60 days.

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Aggrieved thereby, the petitioner filed Writ Petition No.18373 of 2005. In the said Writ Petition, the petitioner contended that successive enquiries cannot be conducted as it would vitiate the process of law, and relied upon a decision in Choutuppal Handloom Weavers

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Co-Operative Society Ltd., Vs. Commissioner of Handlooms^[1] a n d Primary Agricultural Co-Operative Society Vs., B.Malla

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Reddy^[2] . It was also contended that when there is already a report by the Fisheries Development Officer dated 28-04-2005, without passing any orders with reference to the said report, it is not proper to 3^rd respondent to order for a fresh enquiry by appointing another Enquiry Officer. In the said Writ Petition, this Court observed as under :-

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“Prima facie, the third respondent while passing the impugned order did not specify the grounds, which prompted him to order fresh enquiry. Therefore, it would be appropriate for the third respondent to consider the report submitted by the Fisheries Development Officer dated 28-04-2005

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and if necessary calling for records from the petitioner-Society and, then only, pass appropriate orders. If the third respondents finds that there are any omissions or lapses on the part of the Fisheries Development Officer in conducting the enquiry and if there are no clear and categorical findings with reference to any of the allegations, he can pass appropriate orders.

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Under the above circumstances, the impugned order is set aside and the matter is restored to file of the third respondent to consider the report submitted by the Fisheries Development Officer (Coast), Ongole dated 28-04-2005 and to take appropriate action in accordance with law.”

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A reading of the above order indicates that this Court clearly stated that the 3^rd respondent should consider the report of the Fisheries Development Officer dt.28-04-2005 and only if he finds any omissions or lapses on the part of the Fisheries Development Officer in conducting the enquiry and if there are no clear and categorical findings with reference to any of the allegations, he can pass appropriate orders. This Court did not say that there cannot be an enquiry under Section 51 of the Act.

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After the above Writ Petition was allowed, 3^rd respondent considered the enquiry report dt.28-04-2005 of the Fisheries Development Officer and as he felt that there was no clear categorical finding in the said report and no recommendations were made therein, he issued notices dt.08-09-2005 and 09-11-2005 to the President of the petitioner-Society seeking his explanation. The President of the petitioner-Society submitted his explanations dt.27-09-2005 and 2411-2005. After considering the same, 3^rd respondent was of the opinion that there was no proper explanation found in respect of misappropriation of Society funds, in respect of opening of new cash book and not recording the Fishing conducted during the year 2003

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and it would be appropriate to have a detailed enquiry done to ascertain the facts, so that appropriate action, if any, can be taken against the President of the petitioner-Society. He, therefore, exercised his powers under Section 51 of the Act, and through the impugned order Rc.No.221/E/2005 dt.14-12-2005 appointed Sri P.Pandurangaiah, Assistant Registrar, Office of the District Cooperative Office, Ongole to conduct statutory enquiry into the constitution, working and financial position of the petitioner-Society with special reference to the allegations levelled against the President of the Society and directed that the Enquiry Officer should submit his report within 60 days from that date.

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This procedure is questioned in this Writ Petition on the ground that the 3^rd respondent had issued orders under the influence of local Member of Legislative Assembly; that he has ordered successive enquiries under Section 51 of the Act which is impermissible in law without any valid reasons; and therefore, in view of the decisions in Primary Agricultural Cooperative Society (2 supra) and Chouttuppal Handloom Weavers Cooperative Society (1 supra), the impugned order be set aside.

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Heard Ms.M.Vidyavathi, learned counsel for the petitioner and the learned Government Pleader for Fisheries.

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The learned counsel for the petitioner reiterated the above submissions. She also pointed that in the report dated 28-04-2005 of the Fisheries Development Officer (Coast), Ongole, the allegation of misappropriation against the President of the petitioner-society was not found established and he had not given any explanation why cash book for the year 2003-2004 was not produced merely observing that he has maintained vouchers file properly and the previous cash book for the years 2002-2003 and 2003-2004 was not available with the President. She also contended that the enquiry conducted by the Fisheries Development Officer culminating in his report dt.28-04-2005

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is an enquiry under Section 51 of the Act.

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The learned Government Pleader, on the other hand, contended that the inspection under Section 52 of the Act was not done as the Officer appointed to do inspection declined to do the inspection; there was no influence of any politician in directing enquiry into the affairs of the petitioner-Society; since the earlier proceedings dt.06-08-2008 of the

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3^rd respondent were set aside by this Court (on the ground that 3^rd respondent had not considered the report dt.28-04-2005 and did not justify directing of an enquiry under Section 51 of the Act), in the impugned proceedings dt.14-12-2005, the 3^rd respondent has considered the report dt.28-04-2005 of the Fisheries Development Officer. He also contended that 3^rd respondent felt that there was no clear and categorical finding and there were no recommendations in the enquiry report of the Fisheries Development Officer and it would be better to have an enquiry conducted under Section 51 of the Act to find out the facts and to take appropriate action in the matter. Therefore he rightly appointed an Enquiry Officer to conduct enquiry under Section 51 of the Act. He, therefore, contended that there is no illegality committed by the 3^rd respondent in passing the impugned order.

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In Choutuppal Handloom Weaver’s Co-op. Society Ltd., and Ors. (1 supra), this Court after considering the decision of the Division Bench in Primary Agricultural Cooperative Society (2 supra), held as under :

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“Though it is settled principle that the theory of double jeopardy which is a principle applicable to convictions in criminal law as provided in the Constitution may not be applicable to administrative or quasi-judicial proceedings, the under-lying principle of irrational successive enquiries by statutory authorities being hit by the vice of arbitrariness would be applicable to vitiate any

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successive enquiries which are ordered without any rational reasons. In the circumstances, having regard to the totally cryptic nature of the impugned orders this Court is unable to sustain the same. No reasons as already stated, have been given for ordering a de novo enquiry. The impugned order of R1 directing a second enquiry of R3 is accordingly set aside.”

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This Court emphasized that reasons need to be recorded for ordering de novo enquiry. Thus, the above decision and also order dated 2008-2005 in W.P.No.18373 of 2005 reiterate the principle that 3^rd respondent should specify the ground which prompted him to order an enquiry under Section 51 of the Act, after considering the report submitted by the Fisheries Development Officer dt.28-04-2005. If the 3^rd respondent finds any omissions or lapses on the part of the Fisheries Development Officer in conducting the enquiry, then only he can pass appropriate orders.

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A reading of the impugned order shows that adequate reasons have been furnished by the 3^rd respondent as to why he has not accepted the enquiry report dt.28-04-2005 of the Fisheries Development Officer (Coast), Ongole. Therefore, I do not find any illegality committed by the 3^rd respondent in exercising power under Section 51 of the Act and appointing the Assistant Registrar, District Cooperative Office, Ongole to conduct an enquiry into the constitution, working and financial position of the petitioner-Society with special reference to the allegations leveled against the President of the petitioner-Society.

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It is also contended by the learned counsel for the petitioner that after this Court disposed of the Writ Petition No.18373 of 2005, two notices dt.08-09-2005 and 09-11-2005 were issued to the President of the petitioner-Society and different facts are stated in each of the

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notices.

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I have perused both these notices. I am of the view that the contents of the said notices substantially conform to the subject matter of the complaints made against the President of the petitioner-Society earlier. Therefore, I reject the said contention.

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For the above reasons, I am of the view that the writ petition is without any merits.

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Accordingly, the Writ Petition is dismissed. No costs.

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Miscellaneous applications, if any, pending in this Writ Petition shall stand closed.

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______________________________ M.S. RAMACHANDRA RAO,J Dated: 26.06.2013 vsv

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THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO

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WRIT PETITION No.27408 of 2005