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Judgment
M.M. Kumar, J.—This petition filed under Article 226 of the Constitution of India prays for issuance of a writ of certiorari for quashing the
order dated 23.8.1985 (Annexure P5) passed by the Deputy Secretary (Appeals), Government of Punjab, Department of Cooperative Societies
exercising the powers of the Government. It has further been prayed that the award (Annexure P1) dated 23.7.1984 passed by the Arbitrator and
the Appellate order (Annexure P2) dated 25.3.1985 be upheld.
Brief facts of the case necessary for the disposal of the instant petition are that Amrik Singh, Pritam Singh and Ranjit Singh, respondent Nos. 2
to 4 are the members of the petitioner society. On account of their dealings with the society for the last many years some amount was payable by
them to the society. A reference against each of respondent Nos. 2 to 4 under Sections 5 and 56 of the Punjab Cooperative Societies Act, 1961
was made to the Arbitrator which was decided on 23.7.1984 by a consolidated order as common questions of facts and interest were there. The
Arbitrator in his award (Annexure P1) held respondent Nos. 2 to 4 responsible for not making the payment of due amount. During the course of
his discussion he discarded the receipts issued by respondent No. 5 as Secretary of the petitioner society as the same were issued by respondent
No. 5 after he was removed as Secretary of the petitioner society. The operative part of the award passed by the Arbitrator reads as under:
After hearing the parties, I have come to the conclusion that Shri Amrik Singh in connivance with league with Mange Ram Secretary has obtained
the receipts in respect of the amounts of recoveries of the following members after the removal of Mange Ram from the post of Secretary and
these receipts have not been passed from the printed receipt books of the society. Mange Ram has also not entered the recovery of these amounts
in the books of the Society though at that time he was the Secretary to the Society and used to write the record of the society. These entries have
not been recorded even at the time of his removal as Secretary of the Society and also while handing over the record of the Society. It is evident
that these receipts have been issued by Mange Ram after his removal of Secretaryship and in connivance with the debtor without receiving any
amount of the above Society.
I, therefore, do not accept these receipts as genuine and decide that the following amounts be recovered from the members.
S. Name Principal Inst. Expenses Total
No. Rs. Rs. Rs. Rs.
Pritam Singh s/o 7,649.84 1,818.16 250.00 9,718.00
s/o Gurdial Singh
Ranji Singh s/o 14,934.52 2,772.48 250.00 17,957.00
Gurdial Singh
Amrik Singh 14,915.64 1,881.36 250.00 17,947.00
The interest at the rate of 14-1/2 per cent yearly will be payable till the payments is made.
Decision given on 23.7.1984.
Parties concerned may be informed.
On appeal, filed u/s 68 of the Act by respondent Nos. 2 to 4, the Deputy Registrar upheld the award of the Arbitrator on the ground that when
the appeal was heard Mange Ram, respondent No. 5 was called who changed his statement by stating that he received the amount due from two
of the three respondents only which created a doubt about the stand taken by him before the Arbitrator. The views of the Appellate Authority as
reflected in the concluding para of the order dated 25.3.1985 read as under:
After examining the award and the arbitration file and hearing the counsel for the appellants and the respondent it is clear that the appellants by
producing Mange Ram before the Arbitrator got confirmed the issuance of receipts by Mange Ram and for this purpose, the appellants produced
Mange Ram during the hearing of this appeal. Manga Ram stated in this court that out of the three appellants, he recovered the amount from the
two appellants only and this statement of Mange Ram creates doubt about earlier stand taken by the counsel for the appellants. Besides this neither
any application has been moved before the Arbitrator for including Mange Ram as party nor in this appeal. It is quite evident that the appellants are
not inclined to fix any liability on Mange Ram despite this Court that they have paid the amounts to Mange Ram.
On the basis of above facts and record, I am of the view that the award given by the Assistant Registrar, Cooperative Societies, Patiala is justified.
I, therefore, reject the appeal of the appellants without making any modification in the award.
The decision was kept reserved on 15.3.1985, which has been announced today 25.3.1985 in the open Court, Parties be informed.
However, on 24.8.1985 (Annexure P5), the Deputy Secretary accepted the revision petition filed by respondent Nos. 2 to 4 u/s 69 of the Act and
set aside the award of the Arbitrator as well as the appellate order. He has placed reliance on the receipts dated 22.11.1982 and 26.11.1982. He
has also accepted the statement made by Mange Ram, Secretary of the petitioner-Society (respondent No. 5) that on 26.11.1982, respondent
No. 3 returned a sum of Rs. 27,175/- and in token of having received the amount he signed the entries in the pass book. Similarly on 22.11.1982,
respondent No. 2 Amrik Singh, deposited a sum of Rs. 16,769/- and similar entry was made by the Secretary in his pass book. Therefore, the
entries could not be considered to be vague in the absence of any evidence to that effect. The views of the Deputy Secretary and the rationale on
the basis of which he accepted the revision petition reads as under:
I have very carefully scrutinised the arbitration award and the appellate order. The Arbitrator has disbelieved the evidence of Mange Ram and
entries in the respective pass books of the petitioners on the ground that after receiving the payments said Mange Ram did not account for the
amounts said to have been received from the petitioners in the books of the society. The appellate Authority disbelieved the statement of Mange
Ram on the ground that whereas before the Arbitrator he had stated that he received payments from all the three petitioners but before appellate
authority he had stated that he had received repayment only from two petitioners. The appellate authority further disbelieved the evidence on the
ground that the said Mange Ram was not a party to the dispute and the petitioners did not apply for getting him impleaded a party to the dispute. I
fail to appreciate the line of reasoning adopted by both the Arbitrator as well as by the appellate authority. Said Mange Ram was Secretary of the
society and was authorised to receive payment as per Clause 11 of Bye-law 46 of the Model Bye-laws. In case after receipt of the amount he did
not account for amounts received in the books of the society then it is not the fault of the petitioners. The job of the petitioners was finished as soon
they paid the amounts and got the signatures of the Secretary of the Society in their respective pass books in token of his having received the
amounts. I also cannot appreciate the logic adopted by the appellate authority in disbelieving the evidence of said Mange Ram simply because the
petitioners failed to implead him as party to the dispute. It was the job of respondent Secretary to implead Mange Ram as necessary party and in
case the petitioners did not do so then they cannot be penalised for that. The statement of a witness does not become unreliable simply because he
is not a party to the dispute and he is appearing before the Arbitrator or the appellate authority only as a witness. Pass books have been issued to
the members of the society with a view to provide them with upto date account of loans advanced to them by the society and repayment made by
them. In case the entries in pass books are to be disbelieved in this fashion then the whole purpose behind issuance of pass books would be
defeated and members would not be left with any evidence in their hand regarding the repayments made. In view of the aforementioned discussion
I accept the revision petition and quash the award dated 23.7.1984 and the appellate order dated 31.3.1985 and absolve the petitioners of their
liability. The respondent society would be at liberty to raise fresh dispute against Mange Ram Ex-Secretary of the respondent-Society.
Shri G.S.Gandhi, learned counsel for the petitioner society has argued that no opportunity of hearing has been afforded to the petitioner society
on 23.8.1995 as on the previous date i.e. 22.7.1985 he has appeared before him at Chandigarh and the case was posted for hearing on
23.8.1985 at Patiala only to inspect the record. According to the learned counsel no arguments were to be addressed on 23.8.1995 at Patiala.
Therefore, he was deprived of a reasonable opportunity of hearing. The learned counsel has further argued that mere production of entries in the
pass books would not furnish adequate proof that respondent Nos. 2 to 4 have paid their dues to the Secretary of the petitioner-society Manage
Ram(respondent No. 5) and therefore the findings based on the mere entries in the pass books are liable to be set aside. Learned counsel has
further submitted that Secretary of the Society Shri Mange Ram has himself stated before the Arbitrator that the payment was received from
respondent Nos. 2 to 4 but he resiled from his statement as is clear from what he stated before the Appellate Authority. The learned counsel has
maintained that in the written statement filed by the Secretary of the petitioner-Society Mange Ram in this Court he has still made another statement
that he never received any amount from respondent Nos. 2 to 4 and have supported the award passed by the Arbitrator against respondent Nos.
2 to 4.
Shri Sukant Gupta, learned State counsel has argued that the order dated 22.7.1985 passed by the respondent No. 1 only records that the case
was to come up for record on 23.8.1985 at Patiala and the same was duly argued by Shri B.D.Mittal, Advocate who had appeared on behalf of
the petitioner-society by filing his vakalatnama which is on record. Referring to the written statement filed by respondent No. 5, the learned counsel
has submitted that there was no understanding as alleged that the next date of hearing was to be fixed at Chandigarh after examining the record at
Patiala. The learned State Counsel has further argued that neither at the time of arguments nor at the time of pronouncement of the order any
objection with regard to inadequacy of hearing was raised.
The learned State Counsel has raised another argument that respondent No. 1 has passed a quasi judicial order and no comments are desirable
on the merits of that order. However, he has submitted that there is neither any jurisdictional error nor any error apparent on the face of the record
or any violation of the principles of natural justice which may warrant quashing of the impugned order dated 23.8.1985. According to the learned
State counsel in a writ of certiorari this Court cannot assume the character of the appellate Court and reverse the findings of facts on re-appraising
the evidence. In support of his submission, the learned counsel has placed reliance in a judgment of the Constitution Bench of the Supreme Court in
the case of Syed Yakoob Vs. K.S. Radhakrishnan and Others, . He has relied on another judgments of the Supreme Court in the case of Harbans
Lal Vs. Jagmohan Saran, ; P. Kasilingam Vs. P.S.G. College of Technology, ; Nagendra Nath Bora and Another Vs. The Commissioner of Hills
Division and Appeals, Assam and Others, and Ebrahim Aboodkar and Anr. v. Custodian General of Evacuee Property AIR 1952 S.C. 311.
Shri H.S. Chawla, Advocate appearing for respondent Nos. 2 to 4 has stated that he adopts the arguments of the learned State Counsel.
After hearing the learned counsel for the parties at a considerable length, I am of the considered view that this petition is liable to be rejected
because there is ample evidence on record to show that respondent Nos. 2 to 4 have made payments of their dues to the Secretary to the Society
Shri Mange Ram (respondent No. 5). These are not the mere entries in the pass book which are the basis of the findings recorded by the Deputy
Secretary to Government. It is significant to notice that the statement of the Secretary of the petitioner Society Mange Ram made before the
Arbitrator in terms admitted the receipt of payments from respondent Nos. 2 to 4. A reference made to the award passed by the Arbitrator would
reveal that Mange Ram had admitted receiving an amount of Rs. 27,175.00 on 26.11.1982 from respondent No. 3 and 4. He also admitted that
he made entry in the pass books and as a measure of proof initialled the same. He further stated that the recovered amount was given on demand
to Darshan Singh Virk, Inspector, who was to deposit the same in the bank next day. With regard to recovery from respondent No. 2 Amrik
Singh, he had stated that on 22.11.1982 he received a sum of Rs. 16,769.00 from him and made entry in his pass book under his signatures. With
regard to this amount, Shri Mange Ram categorically stated that he adjusted the same towards the expenses of the society as he was removed as
Secretary of the Society and no entry was made in the books of the Society. The statement made by the Secretary of the petitioner Society Mange
Ram has to be considered as an admission u/s 17 of the Indian Evidence Act, 1872 because it is a self harming statement made by him. It is well
settled that no person would make an incorrect statement which would adversely effect one''s own interest. Such a statement is made only because
it is true. Moreover, that statement was made by Mange Ram before the Arbitrator somewhere in 1985 which is closer to the time as compared to
the statement made before the Appellate Authority. Therefore, the view taken by the Deputy Secretary in the impugned order believing the
statement of the Secretary of the petitioner Society, Mange Ram (respondent No. 5) is not open to any doubt. It is further evident that Secretary
of the petitioner society is authorised to receive payments as per Clause 11 of Bye-law 46 of the Model Bye-laws and in case the amount received
by the Secretary is not accounted for in the books of the society then respondent Nos. 2 to 4 could not be held liable.
I am further of the view that a writ of certiorari cannot be issued by this Court for quashing the decision of an inferior Court which is within its
jurisdiction merely on the ground that the decision is wrong. It is to be shown that the authority which had passed the order has acted without
jurisdiction or in excess of it or has violated the principles of natural justice. The learned State Counsel has rightly placed reliance on a judgment of
the Constitution Bench of the Supreme Court in the case of Ebrahim (supra). The same view has been reiterated by another Constitution Bench in
the case of Syed Yakoob (supra). It is further well settled that this Court is not to act as an appellate Court that this Court for re-appraising the
evidence for the purposes of reversing the finding. This view finds support from the judgment of the Supreme Court in the case of Harbans Lal
(supra) and a recent judgment of the Supreme Court in the case of Surya Dev Rai Vs. Ram Chander Rai and Others, . No such ground is available
which may warrant the exercise of jurisdiction under Article 226 for issuance of a writ in the nature of certiorari.
The argument of Shri G.S. Gandhi that opportunity of hearing has not been afforded as the case was posted for inspection of record on
23.8.1981 at Patiala cannot be accepted because Shri B.D.Mittal, Advocate has argued the case on behalf of the petitioner society and his power
of attorney is on record. No objection was raised when arguments were addressed on 23.8.1985 nor any such request for adjournment was
made. When the order was pronounced even then the counsel for the petitioner society Shri B.D.Mittal did not raise any objection. These facts are
patent from the impugned order and the written statement filed by respondent No. 1.
The other argument that mere entries in pass books would not discharge the liability of respondent Nos. 2 to 4 would also not require any
detailed consideration because of the view I have taken on the merits of the case. The entries in the pass books may not alone be sufficient but
when the entries are accepted and owned by the person who had received the amount then it is not possible to reach a conclusion different than
the one recorded by the revisional authority. Even the third argument raised by the learned counsel that statement of the Secretary of the petitioner-
society Mange Ram is not believable cannot be considered as it is not within the scope of jurisdiction of this Court to do so while issuing a writ in
the nature of certiorari.
For the reasons stated above, this petition fails and the same is dismissed. However, there shall be no order as to costs.