Noharlal Verma Vs.
Dist. Co-Op Central Bank Ltd., Jagdalpur  INSC 1781 (20 October 2008)
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
C.K. THAKKER, J.
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.
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.
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.
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.
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.
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 5 dismissed by the High Court. The said order is challenged in the
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.
have heard the learned counsel for the parties.
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 6 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.
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.
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.
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.
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.
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.
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.
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.
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
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
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
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.
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.
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.
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
(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
(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.
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.
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.
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
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
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.
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.
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.
(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)
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.
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.
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
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
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
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'.
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
the foregoing reasons, the appeal deserves to be dismissed and is dismissed,
however, without any order as to costs.