MD. FIROZ ANSARI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) At the request of the learned counsel for the petitioners, the respondent nos. 5 and 6 are permitted to be corrected as "Assistant Registrar, Cooperative Societies, Pakur" and "Joint Registrar, Cooperative Societies, Pakur" respectively.

(2.) The factual background of the case as stated in the writ petition is that the petitioners were acting as agents in the office of the respondent no. 7 .. the Chairman, Jabardaha LAMPS, Pakur and they were entrusted with the job of collecting the amount on daily basis from different account holders who were members of the Cooperative Society, Sonajori LAMPS, Pakur and on the subsequent day, they used to deposit the same with the member secretary of the said Cooperative Society. Under special circumstance, the amount was also deposited with the Cooperative Bank, Pakur and the slips in this regard were handed over to one Raghunandan Saha .. the then Secretary of the said Cooperative Society. On maturity, the beneficiaries were to get the said amount. The respondent no. 5 served notices to the petitioners issued in the aforesaid certificate cases alleging that they did not return the loan amount taken by them and further ordered to obtain NOC by refunding the same with 21% interest thereon otherwise action under the Bihar and Orissa Public Demands Recovery Act, 1914 (hereinafter referred to as "the Act, 1914") would be taken against them. The petitioners submitted their respective replies stating that at no point of time, they had taken any loan from the said Cooperative Society. They further claimed that whatever amount was collected by them, the same was deposited with the then Secretary of the said Cooperative Society, however, the impugned notices were not recalled. Hence, the present writ petition.

(3.) The learned counsel for the petitioners submits that an audit was conducted by the auditor and from the said audit report, it would be evident that the liability has been fastened upon the petitioners on the basis that they did not deposit the collected amount of the depositors with the said Cooperative Society. The audit report nowhere indicates that the petitioners were given loan as alleged in the notices served to the petitioners. Thus, the demand notices issued by the respondent no. 5 suffer from foundational error of fact as there is no document to support that the petitioners had taken loan. The demand notices were issued only to cover the laches of the office bearers of the Cooperative Society and arbitrarily fastened the liability upon the petitioners without any rhyme or reason. It is further submitted that the respondent no. 5 cannot assume the role of the Certificate Officer for the reason that he has already issued demand notices against the petitioners. The petitioners are having valuable right to file their objection in the certificate proceedings, which needs to be properly adjudicated by the Certificate Officer before proceeding to finalize the demand, if at all against the petitioners. In view of the aforesaid fact, since the respondent no. 5 has already disclosed his intention on the aspect of the amount to be recovered from the petitioners conducting the certificate proceeding will be a mere mechanical exercise resulting into gross injustice to the petitioners. Thus, the initiation and continuation of proceedings against the petitioners by the respondent no. 5 suffers from gross biasness and are in violation of the principles of natural justice. The action of the Certificate Officer is also in the teeth of the provisions under the Act, 1914. The respondent no. 2 is already in judicial custody as there is allegation of committing defalcation of certain amount against him. The authorities, instead of pursuing the matter against such delinquent officer/Secretary, Cooperative Societies, Pakur, have tried to fasten the liability upon the petitioners despite there being no material on record to indicate the involvement of the petitioners in defalcation of any amount. The petitioners have discharged their duty with due diligence and have deposited the money with the then Secretary of the said Cooperative Society after having collected the same from the depositors. It is also submitted that the Cooperative Society cannot sustain its claim against the petitioners because no such loan was ever advanced to them. The demand notice under Sec. 7 of the Act, 1914 along with Form No. 2 was never served to the petitioners, rather they were only served with copies of notices dtd. 30/1/2019 mentioning initiation of aforesaid certificate cases against them. The remedy available under Sec. 9 of the Act, 1914 is not an efficacious remedy since the petitioners have challenged the jurisdictional error of the respondent no. 5 in issuing the impugned notices.