@JUDGMENTTAG-ORDER
M.M. Sundresh, J.@mdashIn view of the fact that both the Petitioners in both the wPs and both the Respondents are one and same coupled with the further fact that the relief sought for in W.P. No. 12441 of 2008 is consequent to the W.P. No. 11100 of 2010, they have been taken up together for disposal and common order is passed.
2. The writ petition in W.P. No. 11100 of 2010 has been filed by the Petitioner challenging the order passed by the 2nd Respondent, dated 19.02.2010, wherein in exercise of the power conferred u/s 87 of the Tamil Nadu Cooperative Societies Act, 1983, orders have been passed directing the Petitioner to pay a sum of Rs. 3,99,671.40/-.
3. The writ Petitioner''s late husband was the Secretary of the 3rd Respondent Society. Proceedings have been initiated u/s 90 of the Tamil Nadu Cooperative Societies Act, 1983 against the Petitioner. The Petitioner''s late husband died on 29.09.2007.
4. In view of the alleged act of an attempt said have been made by the Petitioner to dispose of the immovable property bearing Survey No. 165/2A,276/1276, 153/3b3 and 163 in Sub Division No. 2, the 3rd Respondent herein filed the petition before the 2nd Respondent u/s 140 of the Act seeking Attachment of properties of the Petitioner before the judgment. Thereafter, the 2nd Respondent passed an order of attachment on 11.04.2008. Challenging the order, the Petitioner has filed the writ petition No. 12441/2008.
5. The 2nd Respondent has initiated proceedings u/s 87 of the Tamil Nadu Cooperative Societies Act, 1983 to recover the loss said to have been caused by the Petitioner''s late husband while he was in service as a Secretary of the 3rd Respondent Society. Accordingly, an Enquiry Officer was appointed and in pursuant to the report of the Enquiry Officer, the Petitioner was asked to show cause as to why the recovery shall not be made after considering the reply of the Petitioner. The final orders were passed by the 2nd Respondent and challenging the same, the Petitioner has filed the W.P. No. 11100 of 2010.
6. The learned Counsel for the Petitioner submitted that in so far as the writ petition filed in W.P. No. 12441 of 2006 is concerned, the same will have to be set aside.
7. It is also submitted that the notice issued by the 2 Respondent, dated 01.04.2008, has not been served on the Petitioner. It is further submitted that the said fact has not been denied or disproved by the Respondents. Further, a perusal of the notice dated, 11.4.2008 as well as the final order passed on 14.11.2008 would disclose that the dates have been corrected. Further, the order dated 11.04.2008 has been affixed without serving the Petitioner. Therefore, the order impugned dated 11.04.2008 will have to be set aside for not affording proper opportunities to the Petitioner before passing the same.
8. In so far as W.P. No. 11100 of 2010 is concerned, the learned Counsel for the Petitioner submitted that the Petitioner has made a specific request for the completed report of the Enquiry Officer. The learned Counsel for the Petitioner submitted that she was furnished with only a portion of the said report and the other document sought for by the Petitioner were also not furnished. The learned Counsel also submitted that admittedly, the Petitioner has not been given the opportunity to participate in the enquiry.
9. According to the learned Counsel for the Petitioner in as much as the recovery sought against the Petitioner is having civil consequences, the order impugned will have to be set aside even though the Petitioner has not availed the alternative remedy under the Act.
10. Per contra, Mr. K. Elango, the learned Counsel for the 3rd Respondent submitted that the Petitioner is not entitled to be heard in the enquiry conducted u/s 81 of the Tamil Nadu Cooperative Societies Act, 1983. The proceedings u/s 87 have been initiated after the report made u/s 81. The Petitioner was given sufficient opportunities enclosing a copy of the enquiry officer. The Petitioner''s subsequent representation was considered and she was permitted to peruse the relevant documents along with her representative. The Petitioner has not utilized the opportunity provided to her. The writ petitions are liable to be dismissed for not availing the alternative remedy. The disputed questions of the facts cannot be decided by this Honourable Court. Therefore, the learned Counsel for the Respondent submitted that the writ petition will have be dismissed.
11. Admittedly, the Petitioner has been provided an alternative remedy under the Act to the Tribunal against the impugned order passed u/s 87. The Petitioner has not given any explanation as to why she has filed the present writ petition seeking to invoke the extraordinary discretionary jurisdiction of this Honourable Court.
12. The contention of the Petitioner that sufficient opportunities have not been given cannot be a basis for entertaining the writ petition. It is a well settled principle of law that the principles of natural justice has got two facets. When an order is passed without hearing the party, then such an order would be a nullity in the eye of law. However, if an order is passed violating the procedural provisions, then it has to be seen what it would be the effect of the same. In such a case, it is for the Appellate Forum to decide as to whether the mandatory provisions have been violated or not and the Petitioner have been given sufficient opportunities or not. After coming to such a conclusion, the authority has to decide as to whether the action of the original authority is in violation of not following the procedural which would vitiate the proceedings or not. Therefore, considering the said principle of law, the contention of the learned Counsel for the Petitioner alleging that sufficient opportunities have not been given cannot be decided by this Honourable Court, being disputed questions of facts.
13. The impugned order which is the subject matter of W.P. No. 12441 of 2008 has been passed prior to the order passed by the 2nd Respondent u/s 87 of the Act. The said action has been taken only pending the proceedings u/s 90 of the Act. Therefore, this Court is of the view that the validity or otherwise of the order passed by the 2nd Respondent on 11.04.2008 need not be considered in the writ petition.
14. However, it is seen that the Petitioner has been agitating her rights from 2008 and she has approached this Honourable Court and obtained an order of stay of the order passed by the 2nd Respondent on 11.04.2008. The learned Counsel for the Petitioner has submitted that the Petitioner is not attempting to sell the properties over which the interim attachment order has been passed. Therefore, considering the above said position, the Petitioner is given a period of two months from the date of receipt of a copy of the order to file to approach the authority under the Act challenging the order passed u/s 87.
15. As and when such an appeal is filed within a time granted by the Honourable Court, the same will have to be taken on file on merits and without considering the period of limitation. Till the appeal is taken up on file, no distraint proceedings should be initiated against the Petitioner and the Petitioner also shall not alienate her properties over which an order of interim attachment order was passed.
16. It is always open to the Petitioner and the 3rd Respondent to raise all their contentions before the appropriate authority under the Act.
With the above directions, the writ petitions are disposed of accordingly. Consequently, connected miscellaneous petitions are closed. No costs.
