Judgment · High Court · 2012

. 9 and 10 filed W.P(C) No.1885 of 2010. This court by order dated 19.3.2010, di sposed of the said writ petition directing the respondent No.1 to dispose of the appeal filed by the respondents No.9 and 10 before the Government within 45 day s. On 6.4.2010, the appellant submitted a reply written statement to the show c ause notice dated 11.3.2010, contending inter alia that the purported enquiry wa s conducted behind his back. Pursuant to and in compliance of the order of this court dated 19.3.2010, the Deputy Secretary, Co-operation Department, asked all the parties, including the appellant to appear before the Secretary, Co-operati on Department on 20.4.2010. On his appearance the appellant submitted a brief wr itten reply and additional reply dated 29.5.2010 against the show cause notice d ated 11.3.2010 with request to furnish copies of the report submitted by the Reg istrar and the enquiry report of the Joint Registrar of Co-operative Societies o n the basis of which the above 4 charges were brought against him. The said add itional reply was received by the Respondent No.1 on 31.5.2010 and the impugned removal order was issued on a back date i.e. 29.5.2010. The same was communicate d to the appellant on 31.5.2010. The appellant then had to file W.P(C) No.3147/2010 (corresponding to W.A.No.345/ 10). While issuing notice on 8.6.2010, an interim order was passed by this court directing the respondents not to hold election to elect the new Chairman of the ASCU till disposal of the Writ Petition. In the said writ proceeding one Sri Su ndar Deka was impleaded as respondent No.6 as he filed a caveat and on being imp leaded as party, he filed an affidavit contending inter alia that it was he, who lodged the complaint, on the basis of which enquiries were conducted leading t o initiation of proceeding under Section 39(B)(1). The said Sundar Deka, in ord er to establish his locus, contended in paragraph 13 of his affidavit that he wa s not the Chairman -cum-Managing Director of Kamrup Garments Product Co-operativ e Industries Ltd. ,which is a member society of the Guwahati District Co-operat ive Union. In response to the affidavit of respondent No.6, the appellant filed an affidavit denying that Kamrup Garments Product Co-operative Industries Ltd i s a member of the Guwahati District Co-operative Union. Interestingly, on the n ext day, i.e. 9.6.2010, the impugned order, dated 9.6.2010 was passed dissolving the E.C. of the ASCU u/s 80(3) of the Act of 1949. Consequently, the appellant had to file W.P(C) No.3588 of 2010 (corresponding to W.A.No.344/10). The learned Single Bench, upon hearing the parties, dismissed the aforesaid writ petition b y the impugned common judgment and order dated 1.10.2010 resulting into filing o f the present writ appeals. 5. or the appellant makes the following submissions: In respect of Writ Appeal No. 344 of 2010, the learned counsel f (i) the appeal before the Government under Section 80(3) of the Act of 1949 can be preferred only on law points and the respondents No.9 and 10 having filed their appeal on 7.10.2009 purely on question of facts the learn ed Single Bench committed grave error in holding that question of law cannot be decided in violation of the facts involved and the question of law, necessaril y, has to be decided on the basis of facts pleaded. (ii) the appeal dated 7.10.2009 before the Government under S ection 80(3) of the Act of 1949 against Registrar’s order dated 22.9.09 having b een filed without joining the appellant and other elected members as parties mer ely asking them to be present on the date of hearing, cannot be construed as p roviding adequate/ effective opportunities of hearing in a matter involving extr eme action like dissolution of a democratically elected executive body. (iii) the Respondent Government while disposing the appeal vid e impugned order dated 9.6.2010 proceeded entirely on the premises that a large number of members who were not entitled, cast their votes illegally in the elec tion totally over looking the fact that the appellant and the vice Chairman we re elected without contest. Even the other elected members got elected with an overwhelming majority. This stand of the appellant taken in paragraph 19 (B) of the writ petition was not even controverted by the official as well as private r espondents and as such, even assuming but not admitting that the appellant got lesser number of votes, the same could not have materially affected the result o f the election. (iv) the issues framed and the findings recorded by the appel late authority, even on merits, are perverse. The appellant endeavours to justify his above submissions by drawing the attent ion of this court to the following pleaded facts- (a) As regards issue No.1 which relates to allegation that the notices for AGM were not served under the certificate of posting, it was sub mitted before the learned Single Bench that as per bye-law 9(e) of the society, notices should be served by post ’under certificate of posting’ or by peon book as may be convenient. The appellant in his reply contended that the notices of AGM were issued through Issue register at SL. No.108-166 dated 10.6.2009 and wer e served through peon book, which fact was never controverted by the Respondents . Moreover, the attendance register in the AGM itself demonstrates participation of the members in the AGM but the respondent authorities, while passing the im pugned dissolution order dated 9.6.2010, did not take into consideration the pro vision under bye law 9(e). (b) As regard issue No.2, which relates to allegation that some DCUs with less than 40 members, although not entitled, sent four represent ations. Such allegation is vague inasmuch as from the impugned order itself it is reflected that Sadiya DCU had as many as 42 members, some of which are regi stered under the Co-operation Department and Handloom and Textile Department. Th is contention of the appellant was not controverted, yet the Respondent authori ties did not give due consideration to it and acted upon certain informations pu rportedly submitted by the private Respondents. (c) Regarding allegation of sending representation by DCUs w ithout holding AGMs it was contended that DCUs being independent Co-operative So cieties registered under the Act of 1949, the ASCU does not exercise any control over their internal management like holding of AGM as well as approval of such AGMs. It is the Registrar of Co-operative Societies who is responsible for looki ng after such affairs of DCUs. Non holding of AGM, even assuming to be a default on the part of the Managing Body of the DCUs, the same by itself would not mak e such Co-operative Society non existent. Moreover, there is no bar in the bye-l aws of the ASCU to sending representatives by the DCUs for participation in th e AGM. In fact the decision taken by such DCUs regarding sending of representati ons was duly approved by the concerned Assistant Registrar of Co-operative Socie ties (ARCS). In any case, it is the specifically pleaded stand of the appellant that in respect of DCU the AGM had been held as per statutory prescription in pr esence of representations of the Registrar and the proceeding has duly been app roved from time to time. In fact, in February, 2011 an attempt was made to dis lodge the elected body of DCU, which was challenged in W.P(C)No.1429 of 2011 whe rein an interim order was passed on 11.3.2011 to maintain status-quo with regard to functioning of the Managing Committee. (d) Regarding the allegation of receiving money from NCUI an d not accounting for in the cash book or not submitting audit report, it is subm itted that the same is a subject matter of the other proceeding initiated agains t the Chairman. Moreover, as per bye-law 14(d)(iii), it is the CEO who is respon sible for managing the Union’s fund and maintaining the proper accounts thereof. Inspite of such provision in the bye-law the respondent authorities initiated no proceeding against the CEO. 6. 9 and 10 makes the following submissions: Per contra Mr. U K Nair, learned counsel for the respondents No. (i) The learned Single Bench is to confine itself to the dec ision making process only without going into the correctness of the decision ta ken by the authority concerned. However in the present case, the learned Single Bench had gone in to the merit of the decision and having found that the respond ent authorities followed the due procedure, upheld the order dated 9.6.2010 pass ed by the respondent authorities which was challenged in the writ proceedings. Further the learned Single Bench rightly held that the question of law has to be decided on the basis of facts and, therefore, the proposition that appeal under Section 80(3) of the Act of 1949 can be preferred only on question of law is un founded. (ii) The learned Single Bench, on examination of the availabl e records came to a finding that some District Co-operative Unions (DCUs) having less than 40 members sent four representatives in clear violation of the amende d bye laws of the ASCU and some DCUs, more particularly Guwahati, Nagaon, Barpe ta and Sadiya, having not held their AGMs or their AGMs having not been approve d, rightly held that participation of those DCUs in the AGM vitiated the entire AGM proceeding. Although it has been contended by the appellant that Sadiya DCU had 40 members, vide Annexure-R to the writ petition, no oath was sworn in supp ort of it. Moreover in the affidavit in reply filed by the respondent no.1 to th e additional affidavit filed by the appellant in W.P(C)No.3588/10, the responden t No.1 furnished a list of members affiliated to Sadiya DCU relating to the fact that it had only 26 members and therefore, as per the provision under bye law the said union was entitled to send only two representatives. In respect of ot her DCUs, more particualry Guwahati, Nagaon, Barpeta, and Sadiay, they having not held their AGMs or their AGMs having not been approved , their participation in the AGM held on 26.9.09 vitiated the entire proceeding of the AGM. In view of such finding, the order dated 9.6.2010 cannot be held bad in law. (iii) The respondent No.1 being the first appellate authority, his decision though restricted to question of law have to be founded on facts a nd circumstances of a given case and therefore the order dated 9.6.2010 passed b y him cannot be bad in law. 7. llant makes the following submissions: In regard to W.A.No.345 of 2010 the learned counsel for the appe (a) It is an admitted fact that the enquiries made by the Registra r and the Joint Registrar were initiated at the instance of one Sri Sundar Deka u/s 39(b)(1) of the Act of 1949. It has been conclusively established from the materials placed on record that Sri Sundar Deka has no locus standi even to lodg e a complaint and as such the entire proceeding stood vitiated on that count a lone, inviting interference by this Court. (b) Even assuming but not admitting that Sri Sundar Deka was compete nt to lodge complaint, it is an admitted fact that a copy of such complaint was never furnished to the appellant, not to speak of providing any opportunity of b eing heard, to controvert the allegation contained therein. Interestingly, in th e affidavit filed by the Government in W.P(C)No.3147 of 2010 (corresponding to W .A.No.345/10), a letter dated 8.10.2009 was annexed, marked Annexure-VIII, info rming the CEO of ASCU that an inspection/enquiry would be carried out in his of fice. A copy of the said letter was marked to aforesaid Sundar Deka, in an unca lled for manner, although he has no connection with the ASCU and whereas the same was not marked to the appellant, against whom the whole exercise was direc ted. These facts conclusively establish that the whole exercise was undertaken b ehind the back of the appellant and to his prejudice and on that count alone th e said proceeding is liable to be interfered with. (c) The show cause notice dated 11.3.2010 leaves no room for any dou bt that the same was entirely based on the reports submitted by the joint Regis trar who conducted an enquiry behind the back of the appellant. The Registrar i n his turn, submitted a report to the Govt., without even furnishing the copies of the enquiry report. It was the bounden duty of the respondent- authorities t o put the appellant to notice under Section 39 (b)(1) regarding purported enquir ies and thereafter to furnish him the copies of the said enquiry reports and the same having not been done, the principle of natural justice has been violated with all impunity. This stand was taken by the appellant in his reply to show cause dated 6.4.2010 followed by an application dated 29.5.2010 wherein he made a prayer for furnishing copies of the enquiry report. To nullify the appellant ’s contention the respondent Secretary hurriedly served the impugned order on the appellant on 31.5.2010 by ante-dating it to 29.5.2010 and as such malafide a ction writs large on the face of the records, particularly the anti-dated impugn ed order. (d) The basic allegation in the show cause notice dated 11.3.2010 wa s that no proper account was maintained in respect of funds received from the NC UI and instead, separate accounts and books of accounts were maintained. Th e appellant contended that it was done as per resolution No.16 passed by the Man aging Committee in its meeting held on 18.9.2009 whereby it was decided to main tain separate account in respect of funds received from NCUI and to operate the same jointly by the Chairman of the ASCU and the CEO. In view of such collective decision, a proceeding directed solely against the appellant u/s 39 (b)(1) is not maintainable, more so, when the responsibility of managing the fund and main taining the proper accounts was given to CEO under bye law 14(d)(iii). As stated earlier, since no action was ever initiated against the CEO, even assuming tha t the allegation against the appellant is correct, clearly demonstrates biased a nd predetermined action of the respondent-authorities against the appellant. (e) As regards the charge No.1 mentioned in the show cause notice d ated 11.3.2010 relating to allegation that different cash books were maintained in violation of financial discipline, it was contended by the appellant both b efore the respondent authorities as well as before the learned Single Bench tha t out of the amount received from NCUI before 31.3.2008, an amount of Rs.2,41,0 00/-, was recorded in the main cash book of the Union. Since at that point of ti me the detailed guidelines of the NCUI was not available with the Union as per w hich, a separate account was to be maintained, amount received prior to 31.3.200 8 was recorded in the main cash book of the Union. However, upon receipt of the guidelines, the Managing Committee adopted the said Resolution No.16 for maintai ning a separate account for the amount received from the NCUI and in fact a se parate account was opened. It was also the contention of the appellant that the amounts received from the NCUI during 2007 to 2009 were duly audited by a Charte red Accountant as per the guidelines. Necessary utilization certificates were al so sent to the NCUI. Till now no audit objection has been raised by the NCUI. In fact, as provided in clause (xxvi) of the guidelines, further funds were rele ased by the NCUI upon receipt of satisfactory utilization certificates. In fact, the allegations raised against the appellant, although could not be substantiat ed, were accepted by the respondent authorities. They refused to consider the st and of the appellant, which clearly shows biased attitude and predetermined act ion on the part of the respondents against the appellant. As regards the alleg ation of cash disbursement of fund, it was contended that due to some technical difficulties, payments were to be made in cash. In support thereof, the appellan t referred to the page 21 of the guidelines which provides for a particular he ad of account under which the expenditure incurred in training programmes should be met. (f) Regarding charge No.2, it was replied, inter alia, that although the fund was released in cash, same was done against proper receipts and vouche rs and on behalf of ACTI, ASCU. Separate audited accounts and cash book were ma intained as per suggestion of the NCUI. In fact, in the charge itself it has be en stated that as per report, due to lack of infrastructure the training was con ducted through DCUs on behalf of the ACTI. Although the DCUs have not maintaine d separate accounts, all the records are maintained in the office of the ASCU. I n fact , it was contended that the so called enquiry was confined only to the DC Us and the above aspect of the matter was not enquired at the ASCU. (g) As against charge No.3 that as per enquiry report no record was found in respect of the amount raised as corpus fund, it was contended that a n amount of Rs. 1 lakh received as corpus fund have already been sent to the NCU I and all the receipt books are available in the office records. In fact, the am ount deposited with NCUI was published in the mouthpiece of the NCUI. Although a copy of such document was provided, same was not considered and the authorities proceeded to rely on the purported reports which were prepared behind the back of the appellant. Although as a mere formality the appellant was asked to show c ause, none of the contentions of the appellant was considered and hence the find ings arrived at are perverse. (h) In respect of charge no.4 which relates to failure to maintenanc e of records of holding the AGM by the DCUs, it was pleaded by the appellant t hat representatives of every DCU participated in the AGM upon receipt of due app roval from the concerned ARCS. It was also contended that the DCUs, being indep endent cooperative societies, are under direct supervision of the concerned ARC S. 8. Mr. U K Nair, learned counsel appearing for the respondents No.9 and 10 countered the above submissions as under: (i) The learned Single Bench passed the impugned judgment after elab orately discussing the materials on record. (ii) The appellant filed the written statement without any reservatio n regarding non-furnishing him with the reports of the Joint Registrar. No prej udice was caused to the appellant for not furnishing the report of the Joint Reg istrar inasmuch as he was furnished with a detailed statements dated 6.4.2010 cl early mentioning the charges brought against him. Moreover, the appellant did no t ask for the said report in his written statement nor did he state in the addit ional written statement how he was prejudiced. It was not even pleaded by the ap pellant that he was prejudiced due to non-furnishing of enquiry report. (iii) As regards the averments of the appellant that he was never made a privy to the whole enquiry, it is submitted that the respondent- Secretary is sued the show cause notice on the appellant u/s 39 (B)(i) of the Act of 1949 le velling four charges against the appellant on 11.2.2010. It was on record that a s per back as on 8.10.2009 the CEO Assam ASCU was informed that the enquiry has been conducted with regard to financial irregularities in the NCUI funds for wh ich adequate opportunities were given to the appellant to show cause. The afores aid enquiry was not confined to Guwahati alone but it reached out the entire Sta te Co-operative body and its affiliates. (iv) As regards the allegation that the order dated 29.5.2010 is a no n speaking order, it is submitted that the same cannot be termed as non speaking order as it was passed taking into consideration all the material facts and ci rcumstances including the show cause reply of the appellant. In regard to conte ntion of the appellant that the learned Single Bench failed to take into conside ration that the CEO is responsible under bye law 14(d)(iii) and the appellant ca nnot be held responsible, it has been submitted that in the enquiry conducted th e C.Es concerned categorically stated that the fund received under the centrally sponsored schemes were not handled by him. (v) In respect of contention that the learned Single Bench did not g o into the locus of the respondent No.6 , it has been submitted that the said re spondent clearly established his locus by filing an affidavit in opposition in W P(C)No.3147/10. In this regard reference was made to averments made in paragrap h 13 of the said writ petition. (vi) In reply to contention of the appellant that the learned Singl e Bench ignored the NCUI guidelines, the learned counsel for the respondents ref ers to clauses (vi), (xxi), (xxii), (xxiv), (xxv), (xxvi), (xxx) and (xxxi) of t he NCUI and submits that- (a) as per clause (vi) the concerned bodies would bea r the expenses and the same would be reimbursed; (b) as per clause (xxi) the J TC would submit their claims to the respective State Cooperative Unions, (c) as per clause (xxii) there is no necessity of sending any voucher and the JTC wou ld retain them for its record and inspection, (d) as per clause (xxiv) a separa te account should be kept, (e) as per clause (xxv) JTCs would submit their audi ted utilization certificate at the end of each year, (f) as per clause (xxvi) g rant of further fund is subject to receipt of utilization certificate;(g) as per clauses (xxx) and (xxxi) JTC should submit their course completion certificate with implementation report. The learned counsel for the Respondents No. 9 and 10 further su 9. bmits that ASCU, instead of following the procedure of incurring the expenses, has been violating the terms and conditions stipulated in the guidelines and the reby committed gross anomalies, as is evident from the report of the Registrar and the enquiry report submitted by the Joint Registrar, copies of which have b een furnished as Annexures-V & VI to W.A.No.345/10. Further the balance sheet of the ASCU (Annexures- 1 to WA No.345/10), clearly shows how the anomalies took place. From the said balance sheet it is found that the District Co-operative Un ion of Nagaon and Guwahati derived the maximum benefit. Whether the notice for holding AGM was served under ’certificate of pos

#10. On perusal of the pleadings and on consideration of the submissi ons made by the learned counsel for the parties, so far as it relates to the ord er dated 9.6.2010 dissolving the E.C., which led to filing of W.P.(C)No.3588/10 and W.A.No.344/10, the points for consideration and decision are as follows: (i) ting’, (ii) in clear violation of the amended bye laws of the ASCU, (iii) Whether the DCUs, more specifically, Guwahati, Nagaon, Barpeta and Sadiy a did not hold their AGM and even if they held the AGMs,they obtained no approv al from ARCS concerned and thereby their participation in the AGM dated 26.9.09 Whether the DCUs having less then 40 members sent four representatives vitiated the entire proceeding of the AGM. (iv) s received from the NCUI. Whether there were gross financial irregularities involving Rs.15.30 lac

#11. The notable point is that in respect of ’certificate of posting’ the respondent No.1 did not pass any comment thereon. In regard to point No.(ii ) above, it was held that the Sadiya DCU with only 26 members was not entitled to send four members. So was the case in respect of Nagaon, DCU as per informati on furnished by the Assistant Registrar of Co-operative Societies under the RTI . In regard to point No.(iii) above, the respondent No.1 after going through the records, held that Guwahati DCU held its last AGM on 26.6.09 but it was not app roved by the Assistant Registrar concerned. The Nagaon DCU did not submit the AG M proceeding for the years 2006-07,2007-08 and 2008-09. The Sadiya DCU did not h old AGM for the years 2006-07,2007-08 and 2008-09. In regard to point No.(iv) th e respondent no.1 was of the view that since it was a financial irregularity it was being dealt with separately. After an elaborate discussion, the respondent N o.1 held that the breaches of bye laws as set forth in the appeal were establish ed and, therefore, set aside the order dated 22.9.2010 passed by the Registrar. The respondent No.1 also held that the AGM was illegal and, therefore, the E.C. was dissolved with direction to elect a fresh body as per law. The learned Sing le Bench in the impugned judgment and order dated 1.10.2010 came to a finding th at due notices were give to all parties and all of them appeared and submitted their written statements. It was also found that the proceeding was conducted as per procedure. Furthermore, the learned Single Bench found the grounds No. 2 an d 3 set forth in the appeal proved. Notably the learned Single Bench also held that the question of law has to be on the basis of facts and, therefore, the prop osition that appeal under Section 80(3) of the Act of 1949 can be preferred only on question of law is unfounded. In view of the above observations, the learned Single Bench dismissed the challenge made to the appellate order dated 9.6.201

#0. First, we would like to consider the arguments advanced by the l 12. earned counsel for the appellant. The appellant, as we could understand, expect ed the writ court exercising power of judicial review, to examine the correctnes s of the impugned order of the Government, like an appellate court. For instan ce the appellant called upon the writ court to find out (i) as to whether some DCUs without having more than 40 members and without earning eligibility, sent four representatives in violation of the provision under the bye law and part icipated in the AGM. Secondly to identify the DCUs who have defaulted in holding their AGMS a nd the DCUs having held the AGM failed to obtain approval from the authority co ncerned as required under the Act of 1949 and to find out whether the responden ts No. 9 and 10 were present in the AGM personally and as to whether appellant g ot elected as Chairman without contest and whether the other E.Ms alsogot elect ed with huge margin. Thirdly, the approval given by the authority to the proce eding of the AGM electing E.C. with the appellant as its Chairman, was sought to be recalled in the complaint made by the respondents No.9 and 10. The Responden t Registrar rejected the complaint requiring the respondents No. 9 and 10 to mak e an appeal before the Govt. on 7.10.09. Admittedly the show cause notice was i ssued/served upon the appellant leveling charges based on report filed by the Joint Registrar. The said report of the Joint Registrar was purportedly prepared after a preliminary enquiry. The appellant made a grievance that a copy of the said report of the Joint Registrar was not furnished to him causing serious prej udice to him inasmuch as for want of said report he could not make effective rep resentation. In our considered view , if the allegation/ grievance of the appell ant is correct, it would amount to violation of principle of natural justice. Th is is the only aspect which a writ court is required to examine and answer after taking into account all the relevant facts and circumstances of the case. As di scussed earlier there is no manner of doubt that the learned Single Bench dealt with the said allegation elaborately.

#13. The writ as well as the writ appellate courts are not required to examine the correctness or otherwise of the decision taken by the district a uthorities, either as original or appellate authority. In judicial review the o nly jurisdiction vested upon them is to examine as to whether in passing orders the administrative authorities have followed the law, rules or procedure prescrib ed under the law/ rules. They have to examine whether the principle of natural justice have duly been followed. In the present case, admittedly, there is no la w/ rules framed by the Legislature to govern the authorities in the enquiry pro ceeding in regard to financial/managerial irregularities of the Cooperative Soci eties Union. Departmental enquiry against the delinquent officer is guided by a set of rules and procedures prescribed thereunder and if any departmental proce eding is conducted in violation of the said rules and procedures and also in vi olation of the principle of natural justice, writ court has jurisdiction to decl are the same as illegal and void. The absence of rules and procedu res is to be filled up by the rules of natural justice, for, as per the set tled law, the rule of natural justice operates in the areas not covered by any l aw validly made. We have no scope, in this case, to examine as to whether the or der passed by the Government as an appellate authority is correct, erroneous or otherwise. This leaves us to examine and determine if the authorities concern ed passed the impugned orders in accordance with the principle of natural justic e.

#14. There is no denial of the fact that a show cause notice was serv ed on the appellant and he submitted the reply to the show cause notice. He al so submitted an additional reply to the show cause. This shows that the appella nt was given an opportunity to answer the charges/ allegations brought against h im and on consideration of his reply to show cause the impugned order of removal was issued. The question is whether the appellant was given reasonable and adeq uate opportunity. The concept of reasonable and adequate opportunity comes into play in cases of enquiry conducted in the departmental proceeding under the rule s and procedures prescribed thereunder. In our considered view, the said concept would not come into play in an administrative action like the present one ungui ded by any codifed Act or Rules. We have already observed that the show cause no tice was issued and the appellant replied to the show cause and, therefore, we are of the view that the instant case is not a case of proceeding of (cid:28) no notic e (cid:29) or (cid:28) no opportunity (cid:29) category. 15. Now we would like to examine the correctness of the contention o f the appellant that the principle of natural justice was not followed in removi ng him from the office of Chairmanship and dissolution of the entire E.C. Befor e dealing with this aspect of the matter, we would like to refer ourselves to the principle laid down by the Apex court in State Bank of Patiala and others Vs . SK Sharma, reported in ( 1996) 3 SCC 364. In paragraph 33(5) it is held as fol lows :- (cid:29)5. Where the enquiry is not governed by any Rules/regulation/ statutory provisions and the only obligation is to observe the principles of nat ural justice__or, for that matter, wherever such principles are held to be impli ed by the very nature and impact of the order/action__ the Court or the Tribunal should make a distinction between a total violation of natural justice(rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment . In orther words, a distinction must be made between (cid:28)no opportunity (cid:29) and no adequate opportunity,i.e. between (cid:28)no notice (cid:29)/ (cid:29)no heari ng (cid:29) and (cid:28)no fair hearing (cid:29).(a) In the case of former, the order passed would undo ubtedly be invalid(one may call it ’void’ or a nullity if one chooses to). In s uch cases, normally, liberty will be reserved for the authority to take proceedi ngs afresh according to law, i.e., in accordance with the said rule ( audi alter am partem). (b) But in the later case, the effect of violation ( of a facet of t he rule of audi alteram partem) has to be examined from the standpoint of prejud iced; in other words, what the Court of Tribunal has to see is whether in the to tality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the sa id query.[It is made clear that this principle (No.5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere. (cid:29)]

#16. There are certain restrictions on strict application of the prin ciple of natural justice. The Apex court in the case of Board of Mining Examin ation Vs. Ramjee, reported in AIR 1977 SC 965, made an observation that (cid:28) natur al justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decisionmaker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being cond itioned by the facts and circumstances of each situation, no breach of natural j ustice can be complained of. Unnatural expansion of natural justice, without ref erence to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible ye t firm in this jurisdiction. No man shall be hit below the belt-that is the con science of the matter. (cid:29) If any benefit is to be derived from the above observat ion, the respondent authorities are to show that there was a fairness shown by t he decision maker to the appellant. From the pleadings and submissions of the pa rties, we are satisfied that the minimum requirement of the principle of natural justice has been followed by way of issuing show cause notice, receiving the re ply from the appellant and passing a speaking order by the respondent authoritie s. There was no demand from the appellant for taking evidence to prove the alleg ations/ charges brought against him . The only demand made by the appellant was that he should have been furnished with the copy of the preliminary enquiry rep ort of the Registrar and the Asstt. Registrar basing on which action was initia ted against him. The appellant extended his demand by saying that non furnishi ng of such preliminary report caused prejudice to him vitiating the entire pro ceedings and the impugned orders as well.

#17. The question of prejudice is to be considered seriously. In the State Bank of Patiala ( supra) it was held that in respect of procedural provisi on other than a fundamental nature, the theory of substantial compliance would be available and in such cases, the complaint/ objection on that score have to b e judged on the touch stone of prejudice. The settled position of law is that t he test of prejudice is the ultimate test to uphold or nullify the order passed by the decision maker. The court is therefore, bound to examine, if any prejudic e has been caused to the person proceeded against. We have noticed that the app ellant was served with show cause notice with details of allegations/ charges br ought against him. In the said show cause notice the Respondent-Secretary discl osed that the charges were based on records submitted by the Registrar of Cooper ative Societies, Assam and enquiry report submitted by the Joint Registrar, Coop erative Societies. In the main show cause reply as well as the supplementary rep ly to show cause he expressed no intention for inspection of the enquiry report and to file further show cause reply. He reserved no right of inspection of the enquiry report and file further show cause reply at the later stage. What is ap parent is that the appellant was in a position to file the show cause reply wit hout being furnished the enquiry report. It was possible on his part to do so b ecause of the nature of allegations, the details of which have been furnished in the charges communicated to him in the show cause notice. For instance, Charge No. 1, relating to receipt of Rs. 14,760,25/-, is an admitted fact and as per r eply to show cause the said amount was received and deposited in the Bank Accoun t of the ASCU. It was also admitted therein that out of the said amount an amou nt of Rs. 2,41,000/- was recorded in the main cash book of ASCU at the initial s tage and the amount was paid as reimbursement against training programme conduct ed by various DCUs. In fact the details of receipt and expenditure are availabl e with the ASCU and, therefore, there was no necessity of asking more details from the enquiry report. In regard to charge No. 2 which relates to irregulariti es in conducting of training programmes, the appellant in his reply stated that the training programmes were conducted (cid:28)peripatetically (cid:29) under the Principalsh ip of ACTI, Joysagar and the fund released for the parties was distributed by w ay of (cid:28) Cash Disbursement (cid:29) against proper receipts and vouchers. It is further stated that the ACTI and ASCU maintained a separate account and separate cash book which were audited as per the suggestion of NCUI. From the reply of the app ellant there is no doubt at all that he had the required records and knowledge about the training programmes and the expenditures incurred for the said trainin g. Therefore, it was possible on the part of the appellant to reply the Charge N o. 2 without looking at the enquiry report. Charge No. 3 relates to non maintena nce of record on Corpus Fund. The appellant replied that an amount of Rs. 1 lak h was received from the NCUI. It was recorded in the Receipt Book and the re cords are available in the office. The appellant , therefore, could reply the Ch arge No. 3 without looking at the enquiry report. Similarly the appellant was in a position to reply the Charge No. 4 which relates to lapses in maintaining the record 0f holding AGM by the district Unions. In reply to Charge No. 4 , the appellant stated, amongst other, that the DCUs are affiliated to ASCU as p er the national policy. In other words, the ASCU is the controlling body of the DCUs. If it is so, the appellant as Chairman of the ASCU had access to the recor d of the DCUs and he was definitely in a position to call for the relevant recor ds and examine them whenever there was any necessity to do so. From the above di scussion, we are not persuaded to accept the grievances of the appellant that he was prejudiced for not being supplied with the enquiry report(s) mentioned in the show cause notice. Moreover, the very fact that the appellant filed th e show cause reply without any objection amply proves that he was not prejudice d at all.

#18. e learned Single Judge of the impugned judgment: This brings us close to observations and findings of th The written statement dated 06.04.2010 will go to show that the petition (cid:28) 15. er submitted the same in great details clearly understanding the charges leveled against him . In the said written statement there was no whisper regarding any prejudice due to non-furnishing of the enquiry reports. Thus, no prejudice was c aused to the petitioner. Even in the additional reply dated 29.05.2010 except as king for the copies of the enquiry reports, no prejudice was shown and also ther e was no explanation as to how the petitioner could submit the detailed written statement without any reservation on 06.04.2010. It is in this context, learne d counsel for the respondents submitted that the purported additional reply afte r nearly two months and that too, without any leave of the authority, was an aft er thought being aware of the adverse situation and likelihood of the impugned o rder being passed with the sole purpose for making out of the case on technicali ties. (cid:29) Unhesitatingly, we are in agreement with the above observations and conclusions of the learned Single Judge. 19. A step ahead, established law now requires the complainant to sh ow (cid:28)real (cid:29) prejudice as against the mere prejudice in Natwar Singh Vs. Director of Enforcement and another; reported in (2010) 13 SCC 255, wherein it is held th at there must have been caused some real prejudice to the complaint. It was a c ase where the appellants were proceeded with under the Foreign Exchange Manag ement ACT,1999 ( for short FEMA). On receipt of show cause notice they demanded supply of copies of all documents in possession of the Department but the autho rities concerned declined to do so. Yet the appellants filed a preliminary /sho rt reply to the show cause notice insisting again with the demand for copies of the documents whereupon the adjudicating authority made it clear that the prov isions of FEMA and the Rules provide for supply of the grounds, nature of contr avention and copies relied upon the documents only in order to enable the notice e to make effective representation and the said requirement has been met. In fac t, it was found that the copies of all documents as relied upon by the adjudic ating authority were furnished and, therefore, the authority concerned declined to furnish copies of other documents and decided to hold an enquiry in accordan ce with the provisions of FEMA and Rules framed thereunder. In the instant case, there is no Rule prescribing the procedure for conducting the enquiry into the alleged misappropriation of fund or irregularities in holding the AGM by the Co- operative Society Bodies unlike the position in the above cited case where the A ct, namely the FEMA the Rules framed thereunder provides for detailed procedure for holding enquiry. The appellants in the above cited case submitted their prel iminary/ short reply to show cause and it was found that no real prejudice was c aused to them whereas in the present case, admittedly, the appellant submitted h is detailed show cause reply followed by an additional reply to the show cause n otice. This shows that the present petitioner was in a better position and he, b y his own conduct, demonstrated that he was not prejudiced at all and he has no case of real prejudice. 20. nt passed by the learned Single Judge warranting interference in appeal. 21. For the reasons stated above, we uphold and affirm the judgment and order rendered by the learned Single Judge. The appeals stand dismissed leav ing the parties to bear their own costs. This being the position, we find no error in the impugned judgme