IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6161 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 16541 OF 2005
NOHARLAL VERMA ... APPELLANT
VERSUS
DISTRICT CO-OPERATIVE CENTRAL
BANK LIMITED, JAGDALPUR ... RESPONDENT
J U D G M E N T
C.K. THAKKER, J.
1. Leave granted.
2. The present appeal is directed against judgment and order passed by the Division Bench of the High Court of Chhattisgarh on May 04, 2005 in Writ Petition No. 283 of 2001. By the said order, the High Court dismissed the Writ 2 Petition filed by the appellant-petitioner and confirmed the order passed by the Madhya Pradesh State Co-operative Tribunal, Bhopal on January 22, 2001 in Second Appeal No. 560 of 1999.
3. Short facts giving rise to the present appeal are that the appellant herein was working as Manager in the Large Area Multi- Purpose Society (`LAMPS' for short). Between August, 1977 and August, 1981, the appellant was the Manager in the Schedule Tribe Service Co-operative Society, Kanker. He, at that time, committed financial irregularities.
Disciplinary proceedings were initiated against him and by an order dated April 29, 1982, passed by the Chairman, District Co-operative Central Bank Ltd., Jagdalpur (Bastar), he was removed from service. The appellant preferred a departmental appeal on April 30, 1982. Since he had not been communicated anything as to what had happened to the said appeal, the appellant on June 30, 1982 filed an application 3 under Section 55 of the Madhya Pradesh Co- operative Societies Act, 1960 (hereinafter referred to as `the Act') to the Joint Registrar, Co-operative Societies, Raipur.
According to the appellant, the application was made to the Joint Registrar, Raipur as District Bastar/Jagdalpur was within the territorial jurisdiction of Raipur. As stated by the petitioner, Joint Registrar then came to be appointed for District Bastar for Jagdalpur Area. Another application was, therefore, made on October 08, 1985 by the petitioner before the Joint Registrar, Co-operative Societies, Jagdalpur. On February 19, 1986, the Joint Registrar, Jagdalpur dismissed the application filed by the petitioner as time barred. The appellant preferred an appeal against the said order before the Board of Revenue, Gwalior.
However, the said appeal was also dismissed by the Board on June 14, 1990.
4. On October 22, 1990, the application filed by the petitioner on June 30, 1982 before 4 the Joint Registrar, Raipur was forwarded to Deputy Registrar, Kanker for adjudication. The Deputy Registrar, Kanker treated the case as within the period of limitation, considered it on merits and set aside the order of removal vide his order dated May 18, 1994. He also directed the Bank to pay all dues to the applicant.
5. The respondent Bank challenged the said order by approaching the State Co-operative Tribunal. The Tribunal allowed the appeal filed by the Bank on the ground of res judicata observing that an application filed by the appellant was dismissed by Joint Registrar, Jagdalpur and the said order was confirmed by the Board of Revenue, Gwalior dismissing the appeal which had become final.
6. The appellant being aggrieved by the order passed by the Tribunal preferred Writ Petition No. 283 of 2001 in the High Court of Chhatisgarh, which as stated above, was dismissed by the High Court. The said order is challenged in the present appeal.
7. On July 06, 2006, notice was issued to the respondents. Affidavit-in-reply and affidavit-in-rejoinder were thereafter filed.
An order was passed directing the Registry to place the matter for final hearing and that is how the matter has been placed before us.
8. We have heard the learned counsel for the parties.
9. The learned counsel for the appellant contended that the Tribunal as well as the High Court were wrong in dismissing the claim of the appellant. It was contended that the Tribunal was not right in holding that the appeal filed by the appellant was barred by res judicata.
The High Court was, therefore, right in observing that the Tribunal committed an error of law in treating the appeal as barred by res judicata. The High Court, however, went wrong in not allowing the writ petition and in coming to the conclusion that the application filed by the appellant/petitioner under Section 55 of the Act was barred by limitation and the Registrar had no power, authority or jurisdiction to entertain such dispute. The counsel contended that when the matter came up before the Tribunal, it was stated on behalf of the respondent-Bank through its counsel that the application was `within time' and hence, it was decided on merits. Thereafter, it was not open to the Bank to contend that the
application was beyond time and delay could not
be condoned.
10. The learned counsel submitted that
even on merits, the case did not call for
punishment of removal. Certain allegations were
made and even if it is assumed for the sake of
argument that all the allegations were true,
the appellant could not have been removed from
service. No financial loss has been caused to
the respondent-Bank. The appellant has
enormously suffered and he is out of employment
since more than fifteen years. Hence, even if
7
this Court comes to the conclusion that
proceedings could have been initiated against
the appellant and he could have been punished,
on the facts and in the circumstances of the
case, this Court may direct the Bank to re-
instate the appellant without back wages so
that the appellant as well as his family
members would not be deprived of livelihood and
would not starve.
11. The learned counsel for the
respondent-Bank, on the other hand, supported
the order passed by the Tribunal and confirmed
by the High Court. It was contended that the
High Court was right in holding that the
application filed by the appellant was barred
by limitation. The counsel urged that the Act
provides by laying down maximum period of
limitation beyond which no application can be
entertained by the Registrar. If it is so, no
grievance can be made if the application filed
by the appellant was treated as barred by time.
The counsel did not seriously challenge the
8
view taken by the authorities that the
application could not be dismissed on the
ground of res judicata but submitted that the
application was time barred.
12. The counsel also submitted that the
Deputy Registrar, Co-operative Societies,
Kanker was not right when he stated that
consent was given by the counsel appearing on
behalf of the Bank that the application filed
by the appellant under Section 55 of the Act be
treated within time and the application was
admitted. The counsel, however, stated that
even if the counsel for the Bank had stated
that the application submitted by the appellant
could be treated within the period of
limitation, such concession being concession
against law would not bind the Bank. If the
statute stipulates a particular period of
limitation, no concession or order would make
an application barred by time to be within the
limitation and the authority had no
9
jurisdiction to consider such application on
merits.
13. On merits, the counsel urged that
considering the totality of facts and
circumstances, particularly, charges levelled
against the appellant and proved at the inquiry
which related to financial irregularities, if
the appellant was removed from service, it
cannot be said that no order of removal could
have been passed. The appellant was a Bank
employee and holding the office of Manager, a
position of trust. It is in the light of the
said fact that his case was required to be
considered which was done and punishment was
imposed.
14. Having heard the learned counsel for
the parties and having applied our mind to the
facts and circumstances of the case, in our
opinion, the appeal filed by the appellant
deserves to be dismissed. The High Court has
not committed any error of law which requires
to be interfered with in exercise of
1
discretionary and equitable jurisdiction under
Article 136 of the Constitution.
15. So far as res judicata is concerned,
in our opinion, the appellant is right in
submitting that the Tribunal was not justified
in holding that the application filed by the
appellant was barred by res judicata. It is
clear from the facts stated hereinabove that
the application was filed by the appellant to
Joint Registrar, Raipur. It was pending.
Meanwhile, however, District Bastar had its own
Registry and hence, an application was
submitted to District Registrar, Bastar. The
application preferred by the appellant to the
Joint Registrar, Raipur, in the circumstances,
became infructuous. It was not decided on
merits. As per settled law, such decision does
not operate as res judicata. The High Court
was, therefore, right in coming to the
conclusion that the Tribunal was in error in
dismissing the application on the ground of
res judicata. That part of the order passed by
1
the Tribunal was, therefore, rightly not
approved by the High Court.
16. But so far as limitation is concerned,
admittedly, the disciplinary proceedings
culminated against the appellant in an order of
removal. Such order was passed on April 29,
1982. An application against the said order was
made for the first time by the appellant/
applicant on June 30, 1982, i.e. after more
than two months.
17. Now, Section 55 of the Act empowers
the Registrar to determine conditions of
employment in societies. The said section, as
it then stood, read as under;
55. Registrar's power to determine
conditions of employment in
societies.-(1) The Registrar may, from
time to time, frame rules governing
the terms and conditions of employment
in a society or class of societies and
the society or class of societies to
which such terms and conditions of
employment are applicable shall comply
with the order that may be issued by
the Registrar in this behalf.
Provided that in the case of co-
operative credit structure, the
Registrar may frame rules governing
1
the terms and conditions of employment
on the basis of the guidelines
specified by the National Bank.
(2) Where a dispute, including a
dispute regarding terms of employment
working conditions and disciplinary
action taken by a society, arises
between a society and its employees,
the Registrar or any officer appointed
by him not below the rank of Assistant
Registrar shall decide the dispute and
his decision shall be binding on the
society and its employees:
Provided that the Registrar or the
officer referred to above shall not
entertain the dispute unless presented
to him within thirty days from the
date of order sought to be impugned:
Provided further that in computing the
period of limitation under the
foregoing proviso, the time requisite
for obtaining copy of the order shall
be exclused. (emphasis supplied)
18. Plain reading of the aforesaid
provision makes it more than clear that when a
dispute regarding terms of employment, working
conditions and disciplinary action taken by a
society and its employees arises, the officer
specified therein will decide such dispute
which shall be binding on the society and its
1
employees. The first proviso to sub-section
(2) of the said section prohibits the Registrar
from entertaining the dispute unless such
dispute is presented to him within thirty days
from the date of the order impugned. The second
proviso declares that in computing the period
of limitation, the time requisite for obtaining
copy of the order would be excluded. It is
thus clear that if an employee, aggrieved by
any decision taken by the society intends to
approach 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.
19. In the instant case, admittedly, the
order of removal was passed by the Bank against
the appellant on April 29, 1982. Even the
first petition under Section 55 of the Act was
filed by the appellant/applicant on June 30,
1982, i.e. after two months which was time-
barred. The High Court considered the first
petition filed by the appellant herein before
1
the Registrar, Raipur, 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.
20. Learned counsel for the appellant,
however, submitted that the petition filed by
the applicant ought to have been treated 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. Chapter X provides for
filing of appeals and revisions. 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
1
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 attention has been invited by the
learned counsel read thus;
(6) If 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
1
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 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
1
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
Chapter 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
contend 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
1
not within the period of limitation prescribed
by law, 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 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.
1
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 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
merits.
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
2
period shall be dismissed although
limitation has not been set up as a
defence. (emphasis supplied)
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
2
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 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.
2
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 impose such punishment or in the
words of Lord Scarman in Notinghamshire County
Council v. Secretary of State, 1986 AC 240 :
(1986) 1 All 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'.
2
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.
.............................................J.
(C.K. THAKKER)
New Delhi, .............................................J.
October 20, 2008. (D.K. JAIN)
