Smt. Ganeshiya Bai vs Jila Sahakari Kendriya Bank
2021 Latest Caselaw 1635 Chatt

                                1

                                                                  AFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
               Writ Petition (S) No.4484 of 2010
    P.R. Jain (dead) through LR's
    (1) Smt.Ganeshiya Bai, Wife of Late P.R. Jain, aged
    about 64 years, R/o. Village - Bhodiya, Tahsil &
    Thana­Bhanupratappur, District­Kanker (CG)
    (2) Indal Ram Jain, S/o Late P.R. Jain, aged about 37
    years, R/o. Village - Bhodiya, Tahsil & Thana­
    Bhanupratappur, District­Kanker (CG)
                                    ­­­­ LR's of the Petitioner
                             Versus
    Jila Sahakari Kendriya Bank Maryadit, Jagdalpur,
    District Bastar (CG) Through the Chief Executive
    Officer,   Jila  Sahakari  Kendriya   Officer,  Jila
    Sahakari Kendriya Bank Maryadit, Jagdalpur, District
    Bastar (CG)
                                                     ­­­­ Respondent

For LR's Petitioner : Mr.Somkant Verma, Advocate For Respondent : Mr.Prafull Bharat, Senior Advocate with Mr.Keshav Dewangan, Advocate

Hon'ble Shri Justice Sanjay K. Agrawal

Order on Board

9.8.2021

1. Proceedings of this matter has been taken­up through

video conferencing.

2. The petitioner herein (died during the pendency of

this writ petition and his legal representatives have

been brought on record) calls in question legality,

validity and correctness of the impugned order dated

5.5.2009 (Annexure P­1) by which the Additional

Registrar, Cooperative Societies, Chhattisgarh has

set­aside the order passed by the Joint Registrar,

Cooperative Societies dated 28.11.2008 affirming the

order of the Deputy Registrar, Cooperative Societies

dated 26.2.1991.

3. The original petitioner was Samiti Sevak in Jila

Sahakari Kendriya Bank Maryadit, Jagdalpur, he was

placed under suspension on 18.9.69 for causing loss to

the bank and making embezzlement by fabricating

documents, for which he was also prosecuted by

criminal Court for offences under Sections 409 and 467

of the IPC, but he was acquitted by the jurisdictional

criminal Court on 12.9.74. Thereafter, on 31.3.76 the

petitioner raised co­operative dispute under Section

64 of the Madhya Pradesh Co­operative Societies Act,

1960 (hereinafter called as 'Act of 1960') to the then

Registrar, Cooperative Societies, Bhopal. The

Registrar by order dated 16.10.76 converted the said

co­operative dispute in a proceedings under Section

55(2) of the Act of 1960 and referred the matter to

the Deputy Registrar, Cooperative Societies, Kanker

for revocation of suspension and arrears of salary

etc. The Deputy Registrar, Cooperative Societies,

Kanker by order dated 26.2.91 (Annexure P­2) revoked

the suspension of the petitioner and directed for

reinstated with all consequential service benefits,

which the respondent­Bank challenged by way of first

appeal under Section 77/78 of the Act of 1960 and also

took a specific plea that application under Section

55(2) of the Act of 1960 was barred by limitation. The

Joint Registrar, Cooperative Societies/First Appellate

Authority by its order dated 28.11.2008 (Annexure P­3)

dismissed the appeal preferred by the respondent­Bank.

Thereafter, second appeal was preferred against that

order by the respondent­Bank before the Registrar,

Cooperative Societies. The Additional Registrar,

Cooperative Societies by the impugned order dated

5.5.2009 (Annexure P­1) set­aside the orders passed by

the Joint Registrar, Cooperative Societies on

28.11.2008 and the Deputy Registrar, Cooperative

Societies on 26.2.1991 and dismissed the original

application dated 31.3.1976 filed by the original

petitioner holding that application under Section

55(2) of the Act of 1960 was barred by limitation as

it could have been preferred within thirty days from

the date of suspension dated 18.9.69, however,

directed for payment of subsistence allowance, if any.

4. The petitioner has called in question legality,

validity and correctness of the order dated 5.5.2009

passed by the Additional Registrar, Cooperative

Societies, Chhattisgarh granting the appeal preferred

by the respondent­Bank stating inter­alia that the

Additional Registrar has committed grave legal error

in allowing the appeal and rejecting his application

as the petitioner's application under Section 64 of

the Act of 1960 as barred by limitation, which was not

barred by proviso to Section 55(2) of the Act of 1960,

as such, the writ petition be allowed and the order of

the Additional Registrar, Cooperative Societies,

Chhattisgarh be set­aside and that of the Deputy

Registrar as confirmed by the Joint Registrar be

restored.

5. Return has been filed by the respondent­Bank

justifying the order passed by the Additional

Registrar, Cooperative Societies pleading that the

writ petition has no merits and deserves to be

dismissed.

6. Mr.Somkant Verma, learned counsel for the petitioner,

would submit that the Additional Registrar,

Cooperative Societies has committed grave legal error

in entertaining the appeal and setting aside the

orders passed by the Joint Registrar, Cooperative

Societies confirming the order of the Deputy

Registrar, Cooperative Societies, as such, no order of

termination has been passed against the petitioner

and the petitioner has been illegally deprived of by

all service benefits which he was otherwise entitled

and plea of limitation has not expressly taken by the

respondent­Bank before the first appellate authority.

Even otherwise, the application was within a period of

limitation so prescribed, therefore, the impugned

order deserves to be set­aside.

7. On the other hand, Mr.Prafull Bharat, learned Senior

Counsel with Mr.Keshav Dewangan, learned counsel for

the respondent, would submit that though the

petitioner raised co­operative dispute under Section

64 of the Act of 1960, but it was converted by the

then Registrar, Cooperative Societies, Bhopal by order

dated 16.10.76 as dispute under Section 55(2) of the

Act of 1960 and referred to the Deputy Registrar,

Cooperative Societies, Kanker and order dated 16.10.76

converting the dispute under Section 64 of the Act of

1960 to proceedings under Section 55(2) of the Act of

1960 was never challenged by the petitioner and as

such, that order dated 16.10.76 has become final. An

application under Section 55(2) of the Act of 1960,

limitation of thirty days has been prescribed by first

proviso to Section 55(2) of the Act of 1960.

Admittedly, the petitioner was placed under suspension

on 18.6.69 and dispute was raised on 31.1.76, as such,

it was hopelessly barred by limitation, which has

rightly been considered by the Additional Registrar,

Cooperative Societies and his claim has rightly been

rejected as barred by limitation. To bolster his

submission, he would rely upon the judgment of the

Supreme Court in the matter of Noharlal Verma v.

District Cooperative Central Bank Limited, Jagdalpur1.

8. I have heard learned counsel for the parties,

considered their rival submissions made hereinabove

and also went through the records with utmost

circumspection.

9. The petitioner was in service as Samiti Sevak in Jila

Sahakari Kendriya Bank Maryadit, Jagdalpur, but he was

placed under suspension on 18.9.69 on account of

registration of criminal case and consequent pending

criminal trial for offences under Sections 409 and 467

of the IPC, which was ultimately decided and the

petitioner was acquitted by order dated 12.9.1974

(Annexure P­4) and thereafter he raised a co­operative

dispute on 31.3.76 under Section 64 of the Act of 1960

before the Registrar, Cooperative Societies, Bhopal,

which the Registrar, Cooperative Societies did not

consider it proper to take­up under Section 64 of the

Act of 1960 and converted it in a proceeding under

Section 55(2) of the Act of 1960 and remitted to the

1 (2008) 14 SCC 445

Deputy Registrar, Cooperative Societies, Kanker for

hearing and disposal in accordance with law. The

Deputy Registrar, Cooperative Societies, Kanker by its

order dated 26.2.91 allowed the application and

directed for treating the petitioner as reinstated and

also directed for payment of all consequential service

benefits from the date of suspension. Feeling

aggrieved against the order of the Deputy Registrar,

the respondent­Bank preferred an appeal under Section

77/78 of the Act of 1960 before the Joint Registrar,

in which the respondent­Bank has taken a specific plea

and also raised an argument duly recorded in the

impugned order that application under Section 55(2) of

the Act of 1960 was barred by limitation and

therefore, dispute could not have been entertained by

the Deputy Registrar, but anyhow the question of

limitation was not considered by the Joint

Registrar/First Appellate Authority and dismissed the

appeal. Being aggrieved against the order of the Joint

Registrar, second appeal has been preferred by the

respondent­Bank before the Registrar, Cooperative

Societies. The Additional Registrar, Cooperative

Societies has taken cognizance of the plea with regard

to period of limitation and held that the application

under Section 55(2) of the Act of 1960 preferred by

the original petitioner was barred by limitation and

consequently, set­aside the order passed by the Joint

Registrar affirming the order of the Deputy Registrar.

10. The question would be whether the Additional

Registrar, Cooperative Societies/Second Appellate

Authority is justified in granting the appeal holding

the application under Section 55(2) of the Act of 1960

as barred by limitation.

11. Section 55 of the Act of 1960 empowers the

Registrar to determine conditions of employment in

societies which states 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.

(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 excluded."

12. The aforesaid provision clearly provides that

when a dispute is raised with regard to 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. First proviso to

Section 55(2) of the Act of 1960 further mandates 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.

13. The Supreme Court in the matter of Noharlal Verma

(supra) has considered the proviso to Section 55(2) of

the Act of 1960 and held that application has to be

filed within thirty days from the date of such order

or action. It was observed as under:­

"21. The first proviso to sub­section (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."

Their Lordships further considered in Noharlal Verma

(supra) that 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 and relied upon Section 3 of the Limitation

Act, 1963 and held that the Registrar has to be

approached under Section 55(2) of the Act by an

aggrieved party within a period of thirty days and

there is no provision analogous to Section 5 of the

Limitation Act, 1963 for condonation of delay. It was

observed by their Lordships as under:­

"33. Sub­section (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)

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.

34. 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. "

14. Reverting to the facts of the present case in

light of principle of law laid down by the Supreme

Court in Noharlal Verma (supra), it is quite vivid

that first proviso to Section 55(2) of the Act of 1960

is mandatory and application under Section 55(2) of

the Act of 1960 has to be preferred within thirty days

from the date of order sought to be impugned and only

the time requisite for obtaining copy of the order has

to be excluded. In the instant case, admittedly, the

petitioner was placed under suspension on 18.9.69,

against which, he raised a co­operative dispute on

31.3.76 i.e., more than six years, which the

Registrar, Cooperative Societies treated it under

Section 55(2) of the Act of 1960 by order dated

16.10.76, which has become final in absence of

challenge to that order and therefore, dispute raised

was hopelessly barred by limitation as thirty days

period is provided by first proviso to Section 55(2)

of the Act of 1960. Since there is no provision for

condonation of delay analogous to Section 5 of the

Limitation Act, 1963 by showing sufficient cause, the

second appellate authority is justified in holding

that dispute raised by the petitioner was barred by

first proviso to Section 55(2) of the Act of 1960,

which is strictly in accordance with law and it is

neither perverse nor contrary to record. I do not find

any merit in this writ petition.

15. Accordingly, the writ petition being without

substance is liable to be and is hereby dismissed.

However, as directed by the Additional Registrar,

Cooperative Societies, subsistence allowance if

already not paid, it be paid to legal representatives

of the petitioner within 30 days from today. No order

as to cost(s).

Sd/­

(Sanjay K.Agrawal) Judge B/­