THIRUVANANTHAPURAM v. B.T.BABU

stage. That Writ Petition was disposed of by Ext.P12 judgment, directing as follows:- “ xxx xxx xxx ● Ext.P11 judgment is set aside. ● Appeal No.48/2009 on the files of the Kerala Cooperative Tribunal, Thiruvananthapuram, shall be reheard, after giving the petitioner an opportunity to adduce rebutting evidence. ● It is made clear that the admission of additional evidence already ordered by the tribunal is not interfered by this Court in this judgment. The only question to be decided by the tribunal is whether the additional evidence can be relied on or not, after giving an opportunity to the petitioner to rebut the evidence, including cross-examination of the deponent. W.P.(C.)NO.6309 OF 2018 5 ● The matter shall be decided as expeditiously as possible.” The Tribunal, thereafter, proceeded in the manner, as directed by this Court in Ext.P12 judgment and again allowed the appeal filed by the 1st respondent, setting aside the award of the Arbitrator.

3. Learned Counsel appearing for the petitioner would submit that Ext.P16 judgment in Appeal No.48 of 2009 is unsustainable in law. It is submitted that the finding of the Tribunal that the 1st respondent cannot be found fault with, for the deficiency in stock is absolutely untenable. It is submitted that the Tribunal has accepted the additional evidence brought before it by the 1st respondent, without considering as to whether the same can be accepted or not. It is submitted that the finding that, two officials who were stated to be in charge of the stock and tasked with the duty of maintaining the registers, were alone responsible for the deficiency in stock, if any, goes W.P.(C.)NO.6309 OF 2018 6 contrary to the evidence tendered by the 1st respondent himself in proceedings before the Arbitrator. It is submitted that the evidence tendered by the 1st respondent indicates that, it was the duty of the Secretary/Secretary in-charge to report any lapses on the part of the officials, and if the case of the 1 st respondent that, the officials were responsible for the loss in stock is to be accepted, the 1st respondent is also equally liable. It is submitted that, Ext.P16 judgment in Appeal No.48 of 2009 is therefore liable to be set aside and the award of the Arbitrator is liable to be restored.

4. Sri. P.P. Jacob, learned Counsel appearing for the 1st respondent would vehemently oppose the grant of any relief to the petitioner. It is submitted that the additional evidence produced before the Tribunal consists mostly of the documents obtained by the 1st respondent under the provisions of the Right to Information Act, 2005. It is submitted that the said W.P.(C.)NO.6309 OF 2018 7 documents clearly prove that one T.K. Thulasidasan and in his absence, one Swapna S. Nair were responsible for the stock and for the maintenance of the relevant registers. It is submitted that the Tribunal has, after considering the documents produced by the 1st respondent before the Tribunal, come to the conclusion that at the best the 1st respondent could have been faulted for committing some supervisory lapse and the finding of the Tribunal that the 1st respondent could not have been proceeded against for recovery of the amount of loss claimed by the Society is not bad in law. It is submitted that, in such circumstances, there is no ground made out for interference with Ext.P16 judgment of the Kerala Co-operative Tribunal. It is also pointed out that the admissibility of the additional evidence has already been considered by this Court in Exts.P9 and P12 judgments, and the petitioner cannot be heard to W.P.(C.)NO.6309 OF 2018 8 contend that the admissibility of the additional evidence by the Tribunal is bad.

5. Having heard the learned Counsel for the petitioner and learned Counsel appearing for the 1st respondent, I am of the view that the petitioner has not made out any case for interference with Ext.P16. A reading of Ext.P16 judgment of the Tribunal will indicate that the additional evidence produced in the appeal by the 1st respondent, consists of 17 documents, which were marked as Exts.P1 to P17. They include 4 Circulars issued by the Society, 4 reports of the General Body, 4 audit reports and 2 letters of correspondence. The Tribunal, on a consideration of the aforesaid documents, came to the conclusion that the persons liable for deficiency in stock were Sri. Thulasidasan and Smt. Swapna S. Nair. The Tribunal also found that, these were documents obtained by the 1st respondent under the provisions of the Right to Information Act, and they were relevant W.P.(C.)NO.6309 OF 2018 9 for a consideration of the issue before the Tribunal. It is also found that the petitioner Society had purposefully withheld those documents from the attention of the Arbitrator, knowing fully well that, if these documents had been produced, the petitioner would not have been able to obtain an award under Section 69 of the 1969 Act. The Tribunal has also come to the conclusion, on the basis of the documents produced before the Arbitrator, that the Ext.A3 report of the Co-operative Inspector, and Ext.A8 report, after the audit, which was the basis for initiating arbitration proceedings against the 1st respondent did not reveal in any manner, that the 1st respondent was responsible for the deficiency in stock. The Tribunal thereafter considered Exts.P1 to P6 Circulars issued by the petitioner Society, which would indicate that, during the relevant period, Sri. Thulasidasan and Smt. Swapna S. Nair, were discharging the entire duties in respect of collection of milk and sale of milk and milk W.P.(C.)NO.6309 OF 2018 10 products and destruction of excess milk products left after the sale. They were also examined by the Tribunal and they had concurred with the contention taken by the 1st respondent. The Tribunal, therefore held that the evidence in the case clearly shown that the 1st respondent had no direct connection with the collection of milk and sale of milk and milk products or the destruction of stale milk products which could not be sold. The Tribunal also noticed from the evidence of Sri. Thulasidasan and Smt. Swapna S. Nair, that the registers regarding the stock were maintained by them and were only entrusted to the 1st respondent, who was the Secretary in-charge for the relevant period, for safe custody. The Tribunal proceeded to consider Exts.P10 to P13 reports of the General Body and Exts.P14 to P17 audit reports for the relevant period to hold that there was nothing to suggest that the 1st respondent was liable for the deficiency in stock. It is also found that the Arbitrator did not have W.P.(C.)NO.6309 OF 2018 11 any opportunity to peruse these documents, as these documents were not produced before the Arbitrator. It is thus, that the Tribunal came to the conclusion that there was no evidence, whatsoever to substantiate that the 1st respondent was liable for the deficiency in the stock and that, at best, the 1st respondent could be accused of supervisory lapse for having not properly supervised the work done by the aforesaid Thulasidasan and Swapna S. Nair.

6. The findings of the Tribunal are not perverse and they are supported by cogent reasons. I find no ground made out for interference with Ext.P16, under Article 226 of the Constitution of India. The Writ Petition fails and is accordingly dismissed. Sd/- GOPINATH P. JUDGE NB/23-1 W.P.(C.)NO.6309 OF 2018 12 APPENDIX OF WP(C) 6309/2018 PETITIONER EXHIBITS: EXHIBTI P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT 5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 EXHIBIT P9 EXHIBIT P10 EXHIBIT P11 EXHIBIT P12 EXHIBIT P13 EXHIBIT P14 EXHIBIT P15 A TRUE PHOTOCOPY OF THE IN A.R.C. NO.1/2002 DATED 2.11.2002 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. A TRUE PHOTOCOPY OF THE WRITTEN STATEMENT FILED 1ST RESPONDENT IN ARC NO.1/2002 DATED 28.5.2003 BEFORE THE 2ND RESPONDENT. A TRUE PHOTOCOPY OF THE AWARD DATED 16.9.2009 IN ARC 1/2002 ISSUED BY THE 2ND RESPONDENT. A TRUE PHOTOCOPY OF THE DEPOSITION GIVEN BY THE 1ST RESPONDENT IN A.R.C NO.1/2002 A TRUE PHOTOCOPY OF THE PETITION ALONG WITH AFFIDAVIT DATED 4.2.2010 FILED BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT. A TRUE PHOTOCOPY OF THE LIST OF DOCUMENTS SUBMITTED ALONG WITH EXT.P2 BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT. A TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT AGAINST EXT.P2 DAED 20.3.2010 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. A TRUE PHOTOCOPY OF THE ORDER DATED 19.11.2010 IN I.A NO.2010 IN AP. NO.48/2009 OF THE 3RD RESPONDENT. A TRUE PHOTOCOPY OF THE OF THE IN JUDGMENT IN WP(C) NO.37096/2010 DATED 11.11.2013 FILED BY THE PETITIONER. A TRUE PHOTOCOPY OF THE PROOF AFFIDAVIT DATED 19.11.2010 FILED IN AP NO. 48/2009 BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT. A TRUE PHOTOCOPY OF THE JUDGMENT IN APPEAL NO.48/2009 DATED 14.3.2014 RENDERED BY THE 3RD RESPONDENT RECEIVED BY THE PETITIONER ON 4.5.2014 A TRUE PHOTOCOPY OF THE JUDGMENT IN WP(C) NO. 16166/2014 DATED 3.11.2016 A TRUE PHOTOCOPY OF THE PROOF AFFIDAVIT OF RW1 DATED 17.8.2017 FILED BEFORE THE TRIBUNAL. A TRUE PHOTOCOPY OF THE PROOF AFFIDAVIT OF RW2 DATED 17.8.2017 FILED BEFORE THE TRIBUNAL. A TRUE PHOTOCOPY OF THE PROOF AFFIDAVIT OF RW3 DATED 17.8.2017 FILED BEFORE THE TRIBUNAL. W.P.(C.)NO.6309 OF 2018 13 EXHIBIT P16 A TRUE PHOTOCOPY OF THE JUDGMENT IN APPEAL NO.48/2009 DATED 16.1.2018 OF THE 3RD RESPONDENT. RESPONDENTS EXHIBITS: NIL TRUE COPY P.A. TO JUDGE