NOHARLAL VERMA v. DISTRICT CO-OPERATIVE CENTRAL BANK LIMITED, JAGDALPUR

Citation: [2008] 14 S.C.R. 774

Court: Supreme Court of India

Bench: C.K. THAKKER, D.K. JAIN

Case summary

NOHARLAL VERMA v. DISTRICT CO-OPERATIVE CENTRAL BANK LIMITED, JAGDALPUR.pdf

Judgment text

j. - [2008] 14 S. C. R. 774 NOHARLAL VERMA ~ II. I DISTRICT CO-OPERATIVE CENTRAL BANK LIMITED, JAGDALPUR .. _ (Civil Appeal No. 6161 of 2008) OCTOBER 20, 2008 [C. K. THAKKER AND D. K. JAIN, JJ. ] -. (,. Service Law: Madhya Pradesh Co-operative Societies Act, 1960; S. 55 and Proviso 1 and 2 to S. 55(2): Termination of services of a Manager on ground of fi- . __ nancial irregularities - Dismissal of appeal filed by him in terms of proviso to s. 55(2) of 1955 Act on ground of limitation ' - Justification of - Held: In terms of provisions under s. 55 of Ithe Act, an employee, if aggrieved by any decision of author- ~ ity, could file application within 30 days from such order - In -, I the instant case, the employee invoked the provisions u/s. 55 of the Act by filing application after two months - Hence, time barred - In such circumstances, High Court rightly dismissed the petition on ground of limitation - Moreover, there is no . __ provision under 1960 Act analogous to s.

5 of 1963 Act em- •, powering the authority to condone delay if sufficient cause is ' shown - No infirmity found in the impugned order - Rule 59 of the Rules regarding filing of appeal/revision not applicable to the case on hand - Madhya Pradesh Co-operative Societies '-(__. , Rules, 1962 - r. 59 - Limitation Act, 1963 - s. 5 - Power to condone delay Limitation Act, 1963; s. 3: Limitation - Scope of - Discussed. Termination of service of Manager on ground of finan- ~. cial irregularities - Punishment ~ Proportionality of - Held: ~ r I Punishment imposed is not grossly disproportionatelexcessively high - Power of Judicial Review - Exercise of, by High Court. Code of Civil Procedure, 1908 - s. 11 - Res judicata - Applicability of - Held: In the facts and circumstances of the case, Tribunal erred in dismissing the claim of employee on ground of res judicata. '"' ).

- Appellant was working as Manager in a Scheduled Tribe Service Co-operative Society running under District Co-operative Central Bank Limited. He allegedly committed financial irregularities. Disciplinary proceedings were initiated against him and he was removed from service by the authorities vide order dated April 29, 1982. Aggrieved by the order, the appellant filed a departmental appeal and then filed an application u/s. 55 of the Madhya Pradesh Co-operative Societies Act, 1960. Another application was filed by him on February 19, 1986, which was -4 I dismissed by the authority as time barred. The appeal preferred thereagainst was dismissed by the Board of Revenue. In the meantime, the application dated June 30, 1982 was considered by the authority. The authority set aside the order of removal from service and directed the employer to reinstate him and to pay all the dues. The emplayer challenged the order by filing an appeal, which was allowed by the Tribunal.

Aggrieved, the appellant filed ,... '). writ petition, which was dismissed by the High Court. Hence the present appeal. Dismissing the appeal, the Court HELD: 1. From proviso 1 & 2 to sub-section (2) of Section 55 of the Madhya Pradesh Co-operative Societ- . ;- ies Act, 1960, it is clear that if an employee, aggrieved by any decision taken by the society intends to approach the authority, the Registrar, he must invoke provisions of Section 55 of the Act by filing an application within thirty days from the date of such order or action. In the instant -r case, admittedly, the order of removal was passed by the employer-Bank against the appellant on April 29, 1982. Even the first petition under Section 55 of the Act was filed by the appellantfapplicant on June 30, 1982, i. e. after two months from the date of the order, which was time-barred. The High Court considered the first petition filed by the appellant, but even that petition was barred by time. The -{,..

High Court was, therefore, right in dismissing the writ petition holding that the application filed by the applicant was not within the period of limitation prescribed by Section 55 of the Act. [Paras - 18 & 19] [783-G-H; 784-A-B] I 2. 1 It was factually incorrect to state that a conces- ~ sion was made on behalf of the Bank and it did not object that the application was barred by time. But even then, if the application was not filed within the period of limitation, the so-called concession would neither bind the Bank nor invest jurisdiction or power in the authority to entertain such application which was barred by limitation.. _ I I [Paras - 25& 26] [786-E-F] 2. 2 Limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a Court or an Adjudicating Authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits. [Para - 27] [786-G] I . 2. 3 Bare reading of the provision under s.

3(1) of the 'f-'1. Limitation Act, 1963 leaves no room for doubt that if a suit is instituted, appeal is preferred or application is made plication' filed by the applicant was not within the period of -- ·limitation prescribed by Section 55 of the Act. 20. Learned counsel for the appellant, however, submitted ,that tile petition filed by the applicant ought to have been tr~ated within the period of limitation. In support of such contention, he relied on two aspects. 21. Firstly, the provisions of appeals and revisions under the Act. C~apter X provides for filing of appeals and revisions. 0 Referring to rule making power of the State (Section 95), the counsel submitted that the State Government has power to prescribe procedure in presenting and disposal of appeals [Clause (gg) of sub-section (2) of Section 95]. In exercise of the said power, the State Government has framed rules known as the Madhya Pradesh Co-operative Societies Rules, 1962 (hereinafter referred to as 'the Rules').

Chapter IX as then stood provided procedure in "Appeals and Revisions". Rule 59 of the Rules laid·down procedure in filing an appeal to the State Government or to the Registrar. Sub-rules (6), (7) and (8) to which our atteption has been invited by the learned counsel read thus; _;. ,_-- (6)'1f the appellate authority finds that the appeal presented does not conform to any of the said provisions, it shall make a notice on the appeal to that effect and may call upon- the appellant or his agent to remedy the defects within-a period of seven days of the receipt of the notice to do so or in case the appeal has not been presented within the prescribed time limit to show cause within the said period of seven days why it should not be dismissed as time-barred by the appellate authority. (7) If the defect is remedies or the cause shown by the -.. ,-- appellant or his agent satisfies the appellate authority, the appellate authority may proceed to consider the appeal.

(8) If the appellant or his agent fails to remedy the defects or to show cause to the satisfaction of the appellate authority within the said period, the appellate authority may, if the appeal is not presented within the time-limit, dismiss the appeal as time, barred. In cases where it is • J- considered necessary to give a hearing, the appellate authority may fix a date for hearing, of which due notice shall be given to the appellant or his agent. 22. We are of the view that the aforesaid provisions do not apply to the case on hand. Apart from the fact that Rule 59 merely lays down procedure of appeals instituted within the period of limitation and provides for removal of defects, neither the provisions relating to appeals nor of revisions apply to the case on hand. _. 23. In our view, the scheme of the Act is clear.

Chapter X --r of the parent Act which deals with appeals and revisions applies to those cases where orders have been passed by the authorities and officers under the Act and a person is aggrieved by such orders. In the present case, the action is taken not by an authority or officer under the Act but by the respondent-Bank. The appellant, therefore, rightly applied to the Registrar under Section 55 of the Act complaining against such action. The appellant could not have preferred an appeal under the Act either to the Registrar or to the State Tribunal. The provisions of Chapt ~ ter X of the Act relating to appeals and procedure laid down in Chapter IX of the Rules, therefore, had no application. The first ground in support of the application that it should be treated as within the period of limitation has thus no force. 24.

Secondly, the appellant contended that the learned "~~ counsel appearing for the Bank conceded that the application filed by the appellant/applicant was within time and hence, the Registrar took up for consideration the said application and decided on merits. Thereafter, it was not open to the Bank to --tcontend that the application was barred by limitation. The order of the High Court, therefore, deserves to be set aside. It was also submitted that had it been contended before the Registrar that the application was not within the period of limitation prescribed by l~w. the appellant could have satisfied the authority or would have taken other steps, . but he was deprived by the concession on behalf of the Bank. It has caused serious prejudice to the appellant and the Bank cannot be allowed to 'blow -l~ hot and cold' by taking inconsistent pleas and by raising 'technical' defence of limitation. 25.

The learned counsel for the respondent-Bank rightly submitted that the plea raised by the appellant has no force. It was submitted that there was no concession by the Bank. Relying on Zimni, the counsel submitted that on July 06, 1993, i. e. the day on which the concession was said to have been made, the Presiding Officer was not present as he was on a tour. No proceeding took place on that day. It was, therefore, factually incorrect to state that a concession was made on behalf of the ~ Bank and it did not object that the application was barred by time. 26. But even otherwise, according to the counsel, if the application was not within the period of limitation, the so-called concession would neither bind the Bank nor invest jurisdiction or power in the authority to entertain such application which was barred by limitation. In other words, according to the counsel, the concession was against the provision of law, which would 'i- 1 not bind the Bank. 27.

Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a Court or an Adjudicating Authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on mer- _.... l-. ___,, ,. . its. 28. Sub-section (1) of Section 3 of the Limitation Act, 1963 reads as under; ~- (3) Bar of limitation. -(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. (emphasis supplied) r ;. - 29. Bare reading of the aforesaid provision leaves no room for doubt that if a suit is instituted, appeal is preferred or application is made after the prescribed period, it has to be dismissed even though no such plea has been raised or defence has been set up.

In other words, even in absence of such plea by the defendant, respondent or opponent, the Court or Authority must dismiss such suit, appeal or application, if it is satisfied that the suit, appeal or application is barred by limitation. 30. As stated earlier, Section 55 allows an aggrieved party to approach the Registrar within a period of thirty days. There is ~~ no provision analogous to Section 5 of the Limitation act, 1963 allowing the Registrar to condone delay if "sufficient cause" is shown. In view of this fact, in our opinion, the contention of the learned counsel for the Bank is well founded that the application submitted by the appellant was barred by time. 31. To us, the High Court was right in observing that the Tribunal was in error in allowing the appeal and dismissing the claim of the appellant on the ground of res judicata.

The High t 'l,-· Court, therefore, considered the said question independently and held that the Bank was right in submitting that the appellant had not approached the Registrar within the period prescribed by law and his application was liable to be dismissed. 32. So far as the prayer by the appellant that he has sufficiently suffered and should be re-instated in service without back ~ wages also cannot be accepted. The appellant was holding position of trust and was Manager of a Bank. The charges leveled against him were serious in nature concerning misappropriation of money. It is true that the amount was not big and it was also repaid and the Bank has not suffered. But even then the Manager of a Co-operative Bank was involved in financial irregularities. The Bank was satisfied that he should not be retained in service and passed an order of removal. 33. In our opinion, by no stretch of imagination, it can be said that such punishment is grossly disproportionate or excessively high.

Normally in exercise of power of 'judicial review', a writ court will not substitute its own judgment or decision for the judgment or decision of a disciplinary authority unless it comes to the conclusion that it has shocked the conscience of the Court or the punishment is such that no 'reasonable man' would im-. pose such punishment or in the words of Lord Scarman in Notinghamshire County Council v. Secretary of State, 1986 AC 240 : (1986) 1All ER 199 that the decision is so absurd that one is satisfied that the decision maker at the time of making decision 'must have taken leave of his senses'. 34. In our considered opinion, the case does not fall in any of the categories enumerated by the Courts in several cases. We, therefore, see no infirmity even in the final decision taken by the Bank which deserves interference by this Court. 35. For the foregoing reasons, the appeal deserves to be dismissed and is dismissed, however, without any order as to costs. S. K. S. Appeal dismissed.