Karnataka High Court
The Hanumanthanagara Co Operative Bank ... vs The Joint Register Of Co-Op Societies on 5 April, 2024
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.6095 OF 2018 (CS-RES)
BETWEEN
THE HANUMANTHANAGARA
CO OPERATIVE BANK LTD
REGISTERED OFFICE AT
NO.7/29, 4TH MAIN,
1ST CROSS, HANUMANTHANAGAR
BANGALORE 560 019
REP BY ITS MANAGER
D.KRISHNA
...PETITIONER
(BY SRI A DEVARAJA, ADVOCATE)
AND
1. THE JOINT REGISTER OF CO-OP SOCIETIES
DISPUTES, RULE 441
KARNATAKA STATE CO-OPERATIVE URBAN
BANKS FEDERATION LIMITED,
NO.132, 2ND FLOOR,
K.H. ROAD, BANGALORE 560 027.
2. SRI. CHANDREGOWDA
S/O CHANNA BASAVE GOWDA
AGED ABOUT 48 YEARS
R/AT NO.43, 1ST MAIN,
ARKAVATHINADI ROAD,
BRINDAVANA NAGAR,
BANGALORE.
...RESPONDENTS
(BY SRI SIDDHARTH BABURAO, AGA FOR R1
SRI N RAMACHANDRA, ADVOCAE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD
2
29.06.2017 PASSED BY KARNATAKA APPELLATE TRIBUNAL, BANGALORE
IN APPEAL NO.318/2014, DISMISSING THE APPEAL FILED BY
PETITIONER VIDE ANNX-A AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 31.01.2024 COMING ON FOR 'PRONOUNCEMENT OF
ORDER' THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The present writ petition is filed seeking for the following
reliefs:
"1. Call for entire records.
2. Issue a writ, the order or direction in the nature of
writ of certiorari, quashing the order dated 29.6.2017
passed by Karnataka Appellate Tribunal, Bangalore in
Appeal No.318/2014, dismissing the appeal filed by
petitioner produced at Annexure-A.
3. Issue a writ or certiorari quashing the order
passed by the 1st respondent dated 18.9.2011 in Old
dispute No.JRD/UBF/2167/2010-2011, New Dispute
No.JRD/UBF/T-3732/2013-14 vide Annexure-B and
dismiss the dispute in the interest of justice and equity.
3. Pass such other order/orders as this Hon'ble
deems fit, in the fact and circumstances of the case,
including cost, in the interest of justice."
2. The relevant facts necessary for consideration of the
present petition are that the second respondent1 was appointed
as an Accountant in the petitioner - Hanumanthanagara Co-
operative Bank Ltd.,2 on a probation for a period of 2 years on
22.3.1998. On 31.5.2000 the probation period was declared as
Hereinafter referred to as the 'employee'
Hereinafter referred to as the 'society'
satisfactory. It is the case of the society that having regard to
various complaints of misappropriation, the response of the
employee was sought consequent to which the employee vide
explanation dated 22.6.2001 admitted to having committed the
misappropriation and took responsibility for the same. Hence, by
order dated 12.7.2001 the society passed an order of punishment
and demoted the employee to the post of Junior Assistant with
immediate effect. Subsequently, on the ground of unauthorized
absence, the employee was suspended on 25.2.2005. An enquiry
was held, consequent to which, vide order dated 8.3.2006 the
order of suspension dated 25.2.2005 was revoked and a
punishment of permanently stopping two annual increments was
imposed and the suspension period was treated as suspension
with subsistence allowance. Consequent to the said order, the
employee was reinstated to the post of Junior Assistant.
3. Subsequently, an enquiry was held against the
employee on the ground of unauthorized absence and vide order
dated 24.4.2009 the employee was dismissed from the services
of the society. Challenging the said dismissal, the employee filed
a petition under section 70 of the Karnataka Co-operative Society
Act, 19593 in Dispute No.614/2009-10 to set aside the order of
this dismissal dated 24.4.2009 and for reinstatement together
with full backwages. The first respondent - Joint Registrar vide
order dated 28.3.2011 allowed the said dispute, set side the
order of punishment dated 24.4.2009 and reinstated the
employee together with 50% back wages. Being aggrieved, the
society filed Appeal No.395/2011 before the Karnataka Appellate
Tribunal4. Pursuant to a memo for withdrawal dated 12.7.2011
filed by the society the said appeal was dismissed as withdrawn.
4. During the pendency of Dispute No.614/2009-10, on
9.12.2010 the employee filed a dispute under Section 70 of the
Act in Dispute No.2167/2010-11 challenging the order dated
12.7.20015. Along with the said dispute, an application was filed
for condonation of delay. The dispute as also the application of
delay was contested by the society. The first respondent - Joint
Registrar by order dated 5.5.2011 dismissed the application for
condonation of delay and consequently, dismissed the said
dispute as barred by time.
5. Being aggrieved, the employee preferred Appeal
No.593/2011 before the Tribunal. By order dated 6.3.2013, the
Hereinafter referred to as the 'Act'
Hereinafter referred to as the 'Tribunal'
Hereinafter referred to as the 'order of demotion'
Tribunal allowed the Appeal, condoned the delay and remanded
the matter to the Joint Registrar for fresh consideration. After the
remand, the dispute was re-numbered as Dispute No.3732/2013-
14 and vide award/order dated 18.9.2014 the order of demotion
dated 12.7.2001 was set aside and the employee was directed to
be continued in the position as he was prior to the order of
demotion with payment of basic pay together with all
consequential financial benefits. Being aggrieved, the society
preferred Appeal No.318/2014. The Tribunal, vide order dated
29.6.2017 dismissed the said appeal. Being aggrieved, the
present writ petition is filed.
6. Learned counsel for the society contended that the
second dispute filed by the employee challenging the order of
demotion ought not to have been entertained having regard to
the fact that he was aware of the factum of his demotion during
the time when he prosecuted the proceedings wherein his
dismissal from service was challenged. That the employee having
been reinstated back into service consequent to the settlement
arrived at in Appeal No.593/2011, the order of demotion was not
liable to be interfered with. He further submits that although the
order condoning the delay has not been challenged, the society is
entitled to urge the said aspect while challenging the main order
on its merits. In support of his contentions, he relies on the
following judgments:
i) Haryana State Co-op., Land Development Bank v.
Neelam6;
ii) SBI v. M.J.James7;
iii) Sayadhyan Ghosal & Ors., v. Smt. Deorjin Debi8;
iv) Kshitish Chandra Bose v. Commissioner of
Ranchi9;
v) Sankaranarayanan Potti v. K.Sreedevi10;
vi) Achal Misra v. Rama Shanker Singh11;
vii) Kores (India) Ltd., v. Bank of Maharashtra12;
viii) H.P.R.T.C. v. Hukam Chand13
7. Per contra, learned counsel for the employee
vehemently contends that the order of the Tribunal dated
6.3.2013 condoning the delay and remanding the matter not
having been challenged by the society, it is not open to the
society to maintain the present writ petition seeking for the
suitable reliefs. It is further contended that the employee has set
(2005) 5 SCC 91
(2022) 2 SCC 301
AIR 1960 SC 941
(1981) 2 SCC 103
(1998) 3 SCC 751
(2005) 5 SCC 531
(2009) 17 SCC 674
(2009) 11 SCC 222
out adequate reasons for not challenging the order of demotion
within the stipulated time and the said reasons having been
accepted and the delay having been condoned, the same cannot
be held against the employee in proceeding where the merits of
the dispute is adjudicated. That the joint Registrar and the
Tribunal having concurrently held in favour of the employee, the
same ought not to be interfered with by this Court in the present
writ petition. Further, the employee having been appointed to
the post of Accountant, cannot be demoted to the post of Junior
Assistant to which he was not originally appointed. Hence, he
seeks for dismissal of the petition. In support of his contentions,
the learned counsel relies on the following judgments:
i) S.Rudrappa v. Secy., The Mysore Merchants Co-
op., Bank Ltd., & ors.,14;
ii) Nyadar Singh v. Union of India & Ors.,15.
8. The submissions of both the learned counsel have
been considered and the material on record has been perused.
The question that arises for consideration is, whether the orders
passed by the Tribunal and the Joint Registrar of Co-operative
Societies are erroneous and liable to be interfered with?
ILR 2001 KAR 14
AIR 1988 SC 1979
9. The necessary factual aspect regarding the employee
having been appointed to the society as an Accountant on
22.3.1998 and his probation period having been declared
satisfactory on 31.5.2000 is undisputed.
10. It is the contention of the society that due to various
reasons a complaint against the employee with regard to the
misappropriation of funds which was received on 14.6.2001
(Annexure-G to the writ petition), a notice was issued to the
employee on 15.6.2001 seeking for an explanation. The
employee furnished his explanation dated 22.6.2001 (Annexure-
G1 to the writ petition) admitting the charges of misappropriation
made against him. Consequently, the society by order dated
12.7.2001 (Annexure-G2 to the writ petition), demoted the
employee to the post of Junior Assistant.
11. Since the employee was unauthorizedly absent from
24.2.2005, he was placed under suspension from 25.2.2005 and
an enquiry was held against him, wherein the charges against
him having been proved, by order dated 8.3.2006 (Annexure-H
to the writ petition) the order of suspension was recalled and it
was ordered that two annual increments of the employee be
stopped permanently.
12. Subsequently, in the year 2009, an enquiry was held
on the employee being unauthorizedly absent from 16.2.2008 to
26.6.2008. By order dated 24.4.2009 (Annexure-J to the writ
petition) the employee was dismissed from service.
13. Being aggrieved by the order dated 24.4.2009
dismissing the employee from service, the employee preferred
dispute in Dispute No.JRD/UBF/614/2009-10 to set aside the
order of dismissal dated 24.4.2009 and for reinstatement into
service. The society entered appearance in the said proceedings
and contested the same. By order dated 28.3.2011 (Annexure-L
to the writ petition) the Joint Registrar of Co-operative Societies
allowed the dispute and set aside the order dated 24.4.2009
dismissing the employee and ordered for reinstatement together
with 50% backwages from 24.4.2009. Being aggrieved by the
same, the society preferred an appeal No.395/2011 before the
Tribunal.
14. It is relevant to note that during the pendency of
dispute No.614/2009-10, on 9.12.2010, the employee filed a
dispute under Section 70 of the Act to set aside the order dated
12.7.2001 and to grant all eligible benefits from 11.7.2001.
Along with the said petition, the employee preferred an
application under Section 5 of the Limitation Act, 1963, to
condone the delay in filing the dispute. The society entered
appearance in the said proceedings and contested the same. The
Joint Registrar of Co-operative Societies, vide interim order dated
5.5.2011 (Annexure-N2 to the writ petition) dismissed the
application filed under Section 5 of the Limitation Act and
consequently, dismissed the dispute as not maintainable.
15. In the meanwhile, the society filed a memo for
withdrawal of Appeal No.395/2011 placing on record that the
dispute is settled out of Court between the parties and hence,
sought for dismissal of the appeal as withdrawn. Accordingly, the
Tribunal, by order dated 12.7.2011, taking on record the memo
filed by the society dismissed the appeal as withdrawn.
16. The employee preferred Appeal No.593/2011 being
aggrieved by the order dated 5.5.2011 passed in dispute
No.2167/2010-11. The Tribunal by its order dated 6.3.2011
(Annexure-O to the writ petition) allowed the appeal, set aside
the order dated 5.5.2011 and remanded the matter to the Joint
Registrar with a direction to dispose of the dispute on merits in
accordance with law. The Joint Registrar, consequent to the
order dated 6.3.2013 numbered the dispute as 3732/2013 and by
order dated 18.9.2014 (Annexure-B to the writ petition) set aside
the order dated 12.7.2001 and directed that the employee be
continued in his position as he was prior to 12.7.2001 with basic
pay as he was getting as on the said date with all consequential
benefits. Being aggrieved, the society preferred appeal
No.318/2014. The employee entered appearance before the
Tribunal and contested the same. By order dated 29.6.2017 the
Tribunal dismissed the said appeal and confirmed the order dated
18.9.2014 passed by the Joint Registrar. Being aggrieved, the
present writ petition is filed.
17. It is relevant to note that while the employee was
working as an Accountant, the society received complaints
regarding certain acts of misappropriation. Upon receipt of the
said complaints, the employee was issued with a notice to
provide an explanation. The employee furnished his explanation
dated 22.6.2001 admitting the misappropriation (Annexure-G1 to
the writ petition) and sought for pardon. The employee also paid
the entire misappropriated funds to the petitioner-society. The
society, acting on the said explanation of the employee, wherein
he admitted the misappropriation, passed the order dated
12.7.2001 demoting the employee to the post of Junior Assistant.
The employee continued to work as a Junior Assistant without
any demur or protest till the order dated 12.7.2001 was
challenged by the employee on 9.12.2010 by filing the dispute
No.2167/2010-11.
18. It is relevant to note that the dispute was filed after a
lapse of more than nine years from the date of the order of
demotion. Further it is relevant to note that even at the present
stage of proceedings, the employee does not dispute in any
manner the reply dated 22.6.2001, wherein he admitted the acts
of misappropriation. He further does not dispute the fact that he
returned the misappropriated funds to the society. The employee
challenges the order dated 12.7.2001 only on the ground that no
enquiry was conducted before he was demoted from the post of
Accountant to the post of Junior Assistant and also that he could
not have demoted to the post of Junior Assistant. It is
forthcoming that when the employee filed the dispute
No.2167/2010 he also filed an application under Section 5 of the
Limitation Act to condone the delay. A copy of the said
application filed by the employee together with the objections
filed by the society to the said application has been placed on
record along with a memo dated 15.12.2023 by the learned
counsel for the petitioner. In the affidavit filed in support of the
application for condonation of delay, it is deposed by the
employee that he did not challenge the order dated 12.7.2001
apprehending that the society may choose to take severe drastic
action of imposing punishment of dismissal, if he challenges the
same. He further deposed that he was unaware of the
consequences that flow from passing of the order and he was
ignorant of the law to go against the society. Hence, he had no
other alternative but to sustain the punishment so imposed. He
further deposed that later on he came to know that the order of
reversion is illegal without conducting an enquiry as
contemplated under the Rules and his reversion to the post of
Junior Assistant to which he was not appointed is also contrary to
law. Hence, he questioned the same. The society in its
objections to the said application has denied the averments made
in the affidavit accompanying the application and has further
categorically stated that the employee has studied Masters
Degree and he knows all the Rules and Regulations. It has
further stated that the employee preferred another dispute
challenging the order dated 24.4.2009 in Dispute No.614/2009-
10 and at that time also he did not challenge the order dated
12.7.2001. That the dispute No.2167/2009-10 has been filed
after two years of the employee filing the earlier dispute . It is
further placed on record that the society has passed the order
reverting the employee form the post of Accountant to Junior
Assistant consequent to a detailed enquiry by the Enquiry Officer
and directions of the Reserve Bank of India and since the
employee himself admitted for having misappropriated the funds
of the society/bank and he having paid the misappropriated
amounts to the society.
19. It is further forthcoming that the Joint Registrar in the
order dated 5.5.2011 has noticed the contentions put forth by the
respective parties regarding limitation and further noted that as
per Section 70A of the Act the dispute relating to disciplinary
action was required to be filed within 12 months from the date of
the order and hence, noticing that the order dated 12.7.2001
was challenged in the dispute filed on 9.12.2010 i.e., after a
lapse of more than 9 years and 4 months and having noticed that
the reasons set out by the employee in the affidavit
accompanying the application for condonation of delay are not
tenable and cogent, has dismissed the application.
20. The Tribunal vide order dated 6.3.2013 while
considering the correctness of the order dated 5.5.2011 has
noticed that the position of law that a dispute is required to be
filed within 12 months from the date of the order was subsequent
to the amendment to the proviso to Section 70A of the Act and
prior to amendment the period of limitation was 3 years.
Further, the Tribunal has noticed that without recording evidence
of the employee or affording an opportunity to the employee to
lead the evidence on the application filed under Section 5 of the
Limitation Act, the said application having been disposed of on
merits, the order is erroneous. The said order dated 6.3.2013
passed by the Tribunal is ex facie erroneous having regard to the
fact that it is not the case of the employee that he made a
request to adduce evidence on the application filed under Section
5 of the Limitation Act for condonation of delay and that despite a
request having been made, the same was not afforded to the
employee by the Joint Registrar. Further, there is no provision of
law pointed out by the employee which specifically mandated
opportunity to adduce evidence on the application under Section
5 of the Limitation Act before the Joint Registrar.
21. It is further relevant to note that the Tribunal while
setting aside the order dated 5.5.2011 and remanding the matter
to the Joint Registrar to dispose of the dispute in accordance with
law has not allowed the application for condonation of delay. The
Tribunal has also not set aside the reasoning of the Joint
Registrar that the delay as stated by the employee in the
accompanying affidavit is not tenable or cogent. The Tribunal
has further not recorded any finding that the delay has been
adequately explained by the employee in his application filed for
condonation of delay. In this context, it is relevant to note that
the delay in filing the dispute No.2167/2010-11 was an inordinate
one of 9 years 4 months. The said delay ought to have been
adequately and in detailed explained by the employee. The only
averment made by the employee to condone the delay was that
fearing severe drastic punishment of imposing dismissal from
service, he continued in service without challenging the said
order dated 12.7.2001. The averments made in the affidavit
accompanying the application clearly demonstrates that the
employee was completely aware of the nature of the order dated
12.7.2001 as also its effect.
22. Further, the contention of the society that the
employee has studied his Masters Degree has not been denied
by the employee. The employee has nowhere disputed the fact
that he has not misappropriated the funds as alleged by the
society. Further, the employee does not dispute the assertion of
the society that he has returned the misappropriated amounts.
The only contention on which he has filed the dispute
No.2167/2010-11 is that no enquiry was conducted as required
under the Rules of the Society and hence, the action taken vide
order dated 12.7.2001 is in violation of the principles of natural
justice as the procedure contemplated has not been followed. It
is further contended that the employee having been appointed to
the post of Accountant, the order of punishment reverting to the
post of Junior Assistant is contrary to law.
23. As noticed above, it is the assertion of the society that
consequent to the complaints received by it with regard to
misappropriations done by the employee and having regard to
the directions of the Reserve Bank of India with regard to such
misappropriations, the employee was notified, who offered his
explanation and admitted to the misappropriation and requested
for pardon as also paid the entire misappropriated funds to the
society/bank. The factual aspect resulting in the order dated
12.7.2001 has not been denied by the employee. Under the
circumstances, the employee having been completely aware of
the nature and effect of the order dated 12.7.2001 and having
accepted the allegation of misappropriation, no ground has been
made out by the employee to explain the inordinate delay in filing
the dispute No.2167/2010-11. Even if the period for filing a
dispute is 3 years, the employee was required to explain the
inordinate delay of 6 years in filing the dispute which has not
been done.
24. It is the vehement contention of the employee that
the society not having challenged the order dated 6.3.2013
passed in appeal No.593/2011 by the Tribunal remanding the
matter to the Joint Registrar, it is not open for the society to
question the aspect regarding the delay in filing the dispute
No.2167/2010-11.
25. In response the learned counsel for the society
submits that the order dated 6.3.2013 is passed on the
interlocutory application filed under Section 5 of the Limitation
Act by the employee and the said order being interlocutory in
nature, the society is entitled to challenge the same while
challenging the final order passed on the merits of the dispute
No.2167/2010-11. In support of the said contention, he relies on
the following judgments:
i) In the case of Sayadhyan Ghosal8 the Hon'ble Supreme
Court while considering the question as to whether the
order passed on an interlocutory application in an earlier
stage of the litigation can be agitated in a higher Court at
a later state on the same litigation, has after in detail
considering the relevant statutory provisions as well as
earlier judgments of the Privy Council has held as
follows:
"22. In our opinion the order of remand was an
interlocutory judgment which did not terminate the
proceedings and so the correctness thereof can be
challenged in an appeal from the final order. We hold
therefore that the appellant is not precluded from
raising before us the question that Section 28 of the
original Thika Tenancy Act was not available to the
tenants after the Thika Tenancy Amendment Act came
into force. On this question we have already decided,
as already indicated above, in Mahadeolal Kanodia
case [(1960) 3 SCR 578] that Section 28 after its
omission by the amending Act is not available in
respect of proceedings pending on the date of the
commencement of the Thika Tenancy Ordinance of
1952."
(emphasis supplied)
ii) The Hon'ble Supreme Court in the case of Kshitish
Chandra Bose9 and in the case of Sankaranarayanan
Potti10 has followed its earlier judgment rendered in the
case of Sayadhyan Ghosal8 .
iii) In the case of Achal Misra11 the Hon'ble Supreme Court
considering a similar question has held as follows:
"12. In Sheonoth v. Ramnath [(1865) 10 MIA
413] the Privy Council reiterated that a party is not
bound to appeal from every interlocutory order
which is a step in the procedure that leads to a
final decree. It is open on appeal from such final
decree to question an interlocutory order.
13. This principle is recognised by Section 105(1)
of the Code of Civil Procedure and reaffirmed by
Order 43 Rule 1-A of the Code. The two exceptions
to this rule are found in Section 97 of the Code of
Civil Procedure, 1908, which provides that a
preliminary decree passed in a suit could not be
challenged in an appeal against the final decree
based on that preliminary decree and Section
105(2) of the Code of Civil Procedure, 1908 which
precludes a challenge to an order of remand at a
subsequent stage while filing an appeal against the
decree passed subsequent to the order of remand.
All these aspects came to be considered by this
Court in Satyadhyan Ghosal v. Deorajin Debi
[(1960) 3 SCR 590 : AIR 1960 SC 941. Ed. : See
also(1981) 2 SCC 103, (2004) 12 SCC 754 and
(2005) 3 SCC 422] wherein, after referring to the
decisions of the Privy Council, it was held that an
interlocutory order which had not been appealed
from either because no appeal lay or even though
an appeal lay, an appeal was not taken, can be
challenged in an appeal from a final decree or
order. It was further held that a special provision
was made in Section 105(2) of the Code of Civil
Procedure as regards orders of remand where the
order of remand itself was made appealable. Since
Section 105(2) did not apply to the Privy Council
and can have no application to appeals to the
Supreme Court, the Privy Council and the Supreme
Court could examine even the correctness of an
original order of remand while considering the
correctness of the decree passed subsequent to the
order of remand. The same principle was reiterated
in Amar Chand Butail v. Union of India [AIR 1964
SC 1658] and in other subsequent decisions.
14. It is thus clear that an order notifying a
vacancy which leads to the final order of allotment
can be challenged in a proceeding taken to
challenge the final order, as being an order which is
a preliminary step in the process of decision-
making in passing the final order. Hence, in a
revision against the final order of allotment which
is provided for by the Act, the order notifying the
vacancy could be challenged. The decision in
Ganpat Roy case [(1985) 2 SCC 307] which has
disapproved the ratio of the decision in Tirlok Singh
and Co. [(1976) 3 SCC 726] cannot be understood
as laying down that the failure to challenge the
order notifying the vacancy then and there, would
result in the loss of right to the aggrieved person of
challenging the notifying of vacancy itself, in a
revision against the final order of allotment. It has
only clarified that even the order notifying the
vacancy could be immediately and independently
challenged. The High Court, in our view, has
misunderstood the effect of the decision of this
Court in Ganpat Roy case [(1985) 2 SCC 307] and
has not kept in mind the general principles of law
governing such a question as expounded by the
Privy Council and by this Court. It is nobody's case
that there is anything in the Act corresponding
either to Section 97 or to Section 105(2) of the
Code of Civil Procedure, 1908 precluding a
challenge in respect of an order which ultimately
leads to the final order. We overrule the view taken
by the Allahabad High Court in the present case
and in Kunj Lata v. Xth ADJ [(1991) 2 RCJ 658]
that in a revision against the final order, the order
notifying the vacancy could not be challenged and
that the failure to independently challenge the
order notifying the vacancy would preclude a
successful challenge to the allotment order itself. In
fact, the person aggrieved by the order notifying
the vacancy can be said to have two options
available. Either to challenge the order notifying
the vacancy then and there by way of a writ
petition or to make the statutory challenge after a
final order of allotment has been made and if he is
aggrieved even thereafter, to approach the High
Court. It would really be a case of election of
remedies."
(emphasis supplied)
iv) In the case of Kores (India) Ltd.,12 the Hon'ble
Supreme Court has held as follows:
"17. ......... A litigant is not bound to appeal against
every interlocutory order passed against him; he
can wait until the final order is passed and in
appeal against that final order challenge all orders
leading to the final order and affecting that
decision. Stated the Privy Council in Moheshur
Sing v. Bengal Govt. [(1859) 7 MIA 283] : (MIA p.
302)
"... We are not aware of any law or regulation
prevailing in India which renders it imperative
upon the suitor to appeal from every interlocutory
order by which he may conceive himself
aggrieved, under the penalty, if he does not so do,
of forfeiting forever the benefit of the
consideration of the appellate court. No authority
or precedent has been cited in support of such a
proposition, and we cannot conceive that anything
would be more detrimental to the expeditious
administration of justice than the establishment of
a rule which would impose upon the suitor the
necessity of so appealing; whereby on the one
hand he might be harassed with endless expense
and delay, and on the other inflict upon his
opponent similar calamities."
18. The two exceptions to the rule are Section
105(2) of the Code of Civil Procedure which
precludes an order of remand being challenged at a
subsequent stage, while challenging the decree
passed pursuant to the order of remand and
Section 97 of the Code where while filing an appeal
from the final decree, a litigant is not entitled to
question the preliminary decree on which it is
based and which had earlier become final.
19. Since the Code of Civil Procedure is not
applicable in terms to the Supreme Court, it was
held by this Court in Satyadhyan Ghosal v.
DeorajinDebi [AIR 1960 SC 941 : (1960) 3 SCR
590] and in Lonankutty v. Thomman [(1976) 3
SCC 528 : 1976 Supp SCR 74 at p. 81] that even
Section 105(2) of the Code, did not preclude this
Court from examining the correctness of the
earlier order of remand passed by the High Court
in an appeal arising from the decree passed
subsequent to the remand......."
(emphasis supplied)
26. It is clear from the settled position of law as noticed
above that the order dated 6.3.2013 being on an interlocutory
application, the society is entitled to challenge the same in the
present writ petition, wherein the order passed in dispute
No.2167/2010-11 has been challenged.
27. Learned counsel for the employee attempts valiantly
to contend that the delay in filing of dispute No.2167/2010-11
has been adequately explained which having been accepted by
the Tribunal ought not to be interfered with. However, as noticed
above, having regard to the relevant pleadings made in the
application for condonation of delay, there was absolutely no
basis or justification for the application for condonation of delay
to be favourably considered.
28. Learned counsel for the society further relies on the
judgment of the Hon'ble Supreme Court in the case of
H.P.R.T.C.13 , wherein it has been held as under:
"12. Compliance with the principles of natural justice,
either by holding an enquiry or by giving the employee an
opportunity of hearing or showing cause, is necessary,
where an employer proposes to punish an employee on a
charge of misconduct which is denied, or when any term
or condition of employment is proposed to be altered to
the employee's disadvantage without his consent.
13. On the other hand, if there is an admission of
misconduct, or if the employee pleads guilty in respect of
the charge, or if the employee consents to the alteration
of any terms and condition of service, or where the
employee himself seeks the alteration in the conditions of
service, there is no need for holding an enquiry or for
giving an opportunity to the employee to be heard or
show cause. Holding an employee guilty of a misconduct
on admission, or altering the conditions of service with
consent, without enquiry or opportunity to show cause,
does not violate the principles of natural justice."
(emphasis supplied)
29. In this context, as already noticed above, the
employee has not disputed the factum of him having admitted in
his reply dated 22.6.2001 regarding misappropriation committed
by him. Further, the fact that he has repaid the amounts
misappropriated by him is not disputed. Further, the assertion
made by the society with regard to the education qualification of
the employee is also not disputed by the employee. Hence, it is
clear that he has voluntarily accepted the order dated 12.7.2001
and has discharged his duties as a Junior Assistant for a period
of 9 years and 4 months before filing the dispute No.2167/2010-
11. The said factual matrix is detrimental to the case of the
employee.
30. Learned counsel for the employee placing reliance on
the Division Bench judgment of this Court in the case of
S.Rudrappa14 contends that the act of the employee in not
challenging the order dated 12.7.2001 within the stipulated time
cannot be held against the employee.
31. The reliance placed on the case of S.Rudrappa14 will
not aid the case of the employee having regard to the fact that in
the said case the employee who was compulsorily terminated
from the service, questioned the same by filing a dispute under
Section 70 of the Act. The dispute was rejected on the ground
that he had accepted the retirement benefits which was affirmed
by the Tribunal and a learned Single Judge of this Court. A
Division Bench of this Court held that the employee might have
taken the retirement benefits on account of his poverty and set
aside the orders passed by the Joint Registrar, the Tribunal and
the learned Single Judge of this Court and restored the dispute.
The factual matrix of the said case is entirely different from the
present case.
32. Learned counsel for the employee places reliance on
the judgment of the Hon'ble Supreme Court in the case of
Nyadar Singh15 to contend that the employee having been
appointed as an Accountant cannot be reverted to the post of
Junior Assistant as the said post was not the one for which he
was originally appointed to. The said case will also not aid the
case of the employee having regard to the fact that in the case of
Nyadar Singh15 the Hon'ble Supreme Court considering the
relevant Rules of the Central Civil Services (Classification, Control
and Appeal) Rules 1965 and Article 311 of the Constitution of
India held that all reversions are not reductions and a person
working in a higher post on officiating basis can, for valid
reasons, be reverted to the substantive post. In the said case,
the Hon'ble Supreme Court was considering a case where the
persons appointed to a specific post were reverted to a post for
which they did not have the requisite qualification. It is clear that
the facts of the said case are entirely different from the facts of
the present case. It is not the case of the employee that he does
not have the requisite qualification to discharge the duties as a
Junior Assistant. The fact that he has discharged his duties for a
period of 9 years and 4 months before dispute No.2167/2010-11
was filed itself falsifies the case of the employee in this regard.
33. The Joint Registrar and the Tribunal merely on the
ground that no enquiry has been held have passed orders dated
18.9.2011 and 29.6.2017. Having regard to the findings
recorded above that no grounds has been made out by the
employee to explain the delay of 9 years and 4 months in filing
the dispute No.2167/2010-11 the said order dated 18.9.2014 and
29.6.2017 are liable to be set aside. Hence, the question framed
for consideration is answered in the affirmative.
34. In view of the aforementioned, the following:
ORDER
i) The above petition is allowed;
ii) The order dated 29.6.2017 passed by the Karnataka
Appellate Tribunal, Bangalore in Appeal No.318/2014,
is set aside;
iii) The order dated 18.9.2011 passed in New Dispute
No.JRD/UBF/T-3732/2013-14 (Old dispute
No.JRD/UBF/2167/ 2010-2011), by the Joint Registrar
of Co-operative Societies - respondent No.1, is set
aside;
iv) In the peculiar facts and circumstances of the case, the
parties to bear their respective costs.
SD/-
JUDGE
nd/-
