Ram Singh vs The Financial Commissioner and Secretary to Government of Haryana and Others

R.L. Anand, J.—Ram Singh, Sales-man has filed the present civil writ petition under Articles 226/227 of the Constitution of India for issuing a writ of certiorari for quashing the impugned orders Annexures P.1, P.3 and P.5 against the respondents including the Karnal Haryana Co-operative Societies, Karnal, Ltd. (hereinafter referred to Society), respondent No. 4 and Smt. Phoolpati widow of Telu Ram, deceased, who was the store-incharge (respondent No. 5), and the case set up by the petitioner is that Telu Ram, husband of respondent No. 5 was the incharge of Central Stock of respondent No. 4 Society and he used to distribute stocks to the retail branches and mini banks. Petitioner Ram Singh was Sales-man of the retail Branch at Mandi Karnal and used to sell fertilizer to farmers after receiving it from Central Stock. Respondent No. 6 Om Parkash was Bill and Report Clerk of the Society and respondent No. 7 was Labour Contractor of the Society for loading and unloading the fertilizers from Central Stock to various sales branches of the Society. Telu Ram died on 20.11.1980. On 22.11.1980, respondent No. 6 came to the petitioner for getting signatures on bill No. 10295 dated 20.11.1980 for a sum of Rs. 71166.20P. The bill of ISP and also 80 bags of NPK-II fertilizer. Since the fertilizer received was not according to the bill, the petitioner refused to sign the said bill. The petitioner did not receive 470 bags of Urea fertilizer and 80 bags of NPK-II on 20.11.1980 itself. The petitioner made a complaint on 22.11.1980 to the Manager of respondent No. 4 Society and brought the entire mater to his notice.

The dispute arose between the petitioner and the society and the matter was referred to respondent No. 3 i.e. the Deputy Registrar, Cooperative Societies, Karnal, i.e. the Arbitrator, under sections 102, 103 of the Haryana Co-operative Societies Act. The petitioner submitted his entire case and thereafter, the respondent No. 3 in an illegal manner and without any documentary proof passed the award and put the responsibility against the petitioner and Smt. Phoolpati widow of Telu Ram, respondent No. 5, in equal shares and held them liable to pay the amount of Rs. 58110/- as principal and Rs. 10172/- as interest along with the interest at the a rate of 12 per cent per annum till realisation vide Annexure P.1 and this award was passed on 19.5.1993. The petitioner challenged the award Annexure P.1 before the Appellate Authority i.e. respondent No. 2 i.e. the Registrar, Co-operative Societies, who also did not apply his judicial mind and affirmed the award Annexure P.1 by passing a non-speaking order. Again the petitioner challenged the aforesaid orders before respondent No. 1 in the revision which was also dismissed on 11.9.1995. All the three orders passed by different Authorities i.e. respondent No. 3, 2 and 1, respectively have been challenged in the present writ petition on the ground that the award has been passed by respondent No. 3 without any evidence and respondent No. 2 and 1, respectively have given decisions by relying upon an award which was based on no evidence and there was total lack of judicial application of mind on the part of respondents No. 1 to 3 Authorities.

The averments made in the writ petition have been contested by respondent No. 4 i.e. the Society which has pleaded that the petitioner has no right to challenge the award which involves the disputed questions of act. The findings recorded by the Prescribed Authority are specific. The petitioner has not led any evidence in order to rebut the evidence which has been led by the respondent-Society before the Arbitrator and now he cannot escape from his liability with has been fixed by the Prescribed Authority according to law. The Arbitrator has examined the entire record and gave full opportunity to the petitioner to rebut the case of the Society. The appellate order & Revisional order have been passed by the competent authorities by applying their judicial mind and no case is made out for setting aside the impugned orders Annexures P.1, P3 and P.5.

I have heard Shri R.S. Tacoria, Advocate, appearing on behalf of the petitioner, Shri P.S. Chahar, Addl. Advocate General assisted by Shri Azad Singh AAG, Haryana, on behalf of the respondents No. 1 to 3 and Shri S.S. Dalai, Advocate, who gave appearance on behalf of respondent No. 4 and with their assistance, have gone though the record of this case.

I do not find any merit in the first submission made by the learned counsel for the petitioner that the impugned award based upon no evidence and that respondents No. 2 and 1, respectively passed the orders without any application of mind. In this regard, I would Like to refer to the operative portion of the award dated 19.5.1993 passed by Shri Sudarshan Mohan, Deputy Registrar, Co-operative Societies, Karnal, who after taking into consideration the evidence led by the parties came to the conclusion that bill No. 10295 dated 20.11.1980 was issued after the death of Telu Ram. There was an understanding between Telu Ram and Ram Singh and Telu Ram used to issue fertilizer from the godown on the asking of Ram Singh without issuance of any bill and the said amount was misused by both Telu Ram and Ram Singh. This conclusion was passed by the Arbitrator on the statement of Bhim Singh and Prakash Chand. Learned counsel for the petitioner has not been able to convince me that what was the special reasons for these witnesses to depose against the petitioner. Rather, these two witnesses had categorically stated that they had gone to the house of Telu Ram earlier to his death when he was ailing and this fact was also brought to their notice by Telu Ram regarding handing over of the Urea to the petitioner. In this regard I would like to incorporate the operative portion of the award dated 19.5.1993 passed by the Deputy Registrar, Co-operative Societies :-

"After hearing the arguments of both the parties, I have come to the conclusion that bill No. 10295 dated 20.10.1980 was issued after the death of Telu Ram. There was a understanding between Telu Ram and Ram Singh and Telu Ram used to issue fertilizer from the godown on the asking of Ram Singh without issuance of any bill and the said amount was misused by both Telu Ram and Ram Singh. It is clear from the statement of Om Parkash, Bhim Singh, Parkash Chand, the Official of the Society that there was understanding between Telu Ram and Ram Singh and both have been misused the sale of fertilizer.

The statement of Sh. Sant Lal, contractor of the Society is that Telu Ram and Ram Singh were good friend and Telu Ram used to issue the fertilizers to the farmers from the godown on the Chits issued by Ram Singh. Ram Singh was in-charge of retail sale of fertilizer and Telu Ram was incharge of buffer godown of the Society. After getting amounts from the farmers Ram Singh used to send this amount to Telu Ram on the basis of slip he used to issue fertilizers to farmers and the same amount was misused by both. But Shri Telu Ram fell ill and could not settle the account of fertilizer with Shri Ram Singh and he told about this to his wife and Shri Om Parkash, Parkash Chand and Bhim Singh. And soon Sh. Telu Ram died and after his death the said bill No. 10295 was issued by the Officials on the basis of accounts between them. Shri Ram Singh admits the receipts of 50 bags of NPK-II and 56 bags of TSP and denies the receipt of 470 bags of urea and 80 bags of NPK-2. Both have misutilised the sale amount of said fertilizer and because of this Ram Singh denies the receipt of said fertilizer.

It is clear from the above discussion that Telu Ram and Ram Singh were jointly misusing the sale amount of fertilizer. Therefore, both are responsible for payment of the above amount individually and in equal share. Therefore, it is directed that principal amount of Rs. 58,118/- and Rs. 10,172/- as interest of 12 percent interest till the date of recovery will be payable.

Since Shri Telu Ram had died and Phoolpati is his legal representative and has been heard as legal heir and therefore this amount be recovered from her. The amount spent by the society for execution will also be recovered from both Smt. Phoolpati, Legal representative of Telu Ram and Ram Singh. The order was pronounced in open Court."

A perusal of the impugned orders Annexure P.3 and P.5 also establish that the orders have been passed at the Appellate and revisional stage by the authorities in accordance with the law and they gave full opportunity to the parties to argue their case. The contentions raised by the learned counsel for the petitioner and those were repelled and negativated. In the present writ petition, I have not to see the sufficiency or insufficiency of the evidence before the Arbitrator. Sufficiency or insufficiency of the evidence is to be judged by the Arbitrator who was the sole incharge of the controversy. Of course, this Court could interfere the award provided it was based on no evidence. Once there is a proper application of mind on the part of the Arbitrator, this Court is not supposed to sit as a Court of appeal in order to interfere the judgment which has been formulated by the Arbitrator. So long, the Arbitrator has based its award upon proper appreciation of the evidence led before him and once he has scrutinised the record of the Society and other attending circumstances, the sufficiency of the evidence cannot be considered in the writ jurisdiction. It is settled law that disputed questions of fact cannot be gone into in the writ jurisdiction. Whether the fertilizer was supplied by Telu Ram deceased to Ram Singh was essentially a question of fact which has been properly adjudicated upon by the Arbitrator. With the above reasonings the first contention of Shri R.S. Tacoria, is hereby repelled.

Shri Tacoria learned counsel for the petitioner then submitted that the award dated 19.5.1993 given by the Arbitrator is liable to be set aside so far as the interest is concerned. He submitted that interest not exceeding 6 per cent per annum could not be charged by the Society on the principal amount of the bill and in support of his contention he has relied upon Mohinder Singh v. The Jargari Co-operative Agricultural Service Society, 1983 Rev.L.R. 485, on the contrary, it was submitted by Shri Dalai that the interest charged on this amount is not unreasonable. Of course, learned counsel for the respondent admitted that the Society could not charge interest more than 6 per cent per annum from the date of the passing of the award till its full realisation. I find force in the argument raised by the learned counsel for the petitioner. The authority relied upon by the learned counsel for the petitioner considered the Full Bench view of this Court in the State of Punjab v. Ajit Singh and Ors. 1979 P.L.J. 334 (FB) and the Single Judge was pleased to award rate of interest as 6 per cent per annum by reducing it from 10.5% and it was further declared that the Society was also entitled to recover future interest at the rate of 6 per cent per annum from the date of the award upto the date of realisation. The present award also requires modification and it is declared that the Society shall realise interest at the rate of 6 per cent per annum on the principal amount of Rs. 58,100/- from the date of the supply of the goods till its realisation.

With the above modification, the writ petition is partly allowed to the above extent and in all other respects the same is hereby dismissed leaving the parties to bear their own costs.