Madras High Court
N.Kennedy vs The Joint Registrar Of ... on 17 July, 2023
2023/MHC/3452
W.A(MD).No.7 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.07.2023
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A.(MD)No.7 of 2015
N.Kennedy ... Appellant
Vs.
1.The Joint Registrar of Co-operative Societies
Virudhunagar Region
Virudhunagar District
2.The President
Sp-Spl.63, Uppathur Primary Agricultural
Co-operative Credit Society
Uppathur
Sattur Taluk
Virudhunagar District ... Respondents
PRAYER:- Writ Appeal filed under Clause 15 of Letters Patent to allow
the writ appeal by set aside the order passed in W.P.(MD).No.16868 of
2014, dated 16.10.2014.
1/9
https://www.mhc.tn.gov.in/judis
W.A(MD).No.7 of 2015
For Appellant :Ms.J.Saranya
For M/s.N.Sathish Babu
For R1 : Mr.K.S.Selvaganesan
Additional Government Pleader
For R2 : No appearance
****
JUDGMENT
(Judgment of the Court was delivered by DR.ANITA SUMANTH, J.)
The writ petitioner, the appellant before us, had filed a writ
petition seeking a writ of certiorarified mandamus challenging order
passed by the Joint Registrar of Co-operative Societies on 22.08.2014
rejecting his appeal as against the order passed by the President, SPL.63,
Uppathur Primary Agricultural Co-operative Credit Society dismissing
him from service.
2.The learned Judge has rejected the request for a writ on the
ground that the revision application had been filed belatedly with a delay
of 4 ½ years (approx.) and hence, there was nothing untoward in the
order of the Joint Registrar rejecting the revision application.
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W.A(MD).No.7 of 2015
3.The petitioner assails the order of the writ Court on multiple
grounds. Firstly, he states that both orders, of the Revisional authority
and the writ Court are cryptic and that no speaking order was passed
addressing the specific grounds on the merits of the matter.
4.Learned counsel for the petitioner would draw attention to
the fact that the revision application filed before the Authority was not
even numbered. She draws support from three decisions as follows:
(i).N.P.Palanisamy Vs.State of Tamil Nadu and others
[ 2012(4) CTC 257].
(ii)W.P(MD).No.9233 of 2012, dated 18.07.2012,
R.Ramalingam Vs. The Registrar of Co-operative Societies.
(iii).V.Palanichamy Vs. The Joint Registrar
( W.P(MD).No.12057 of 2010 dated 06.06.2011).
5.Those decisions have proceeded on the basis that (i)there is a
distinction between the remedy of appeal and revision under the Tamil
Nadu Co-operative Societies Act, 1983 (in short 'Act') (ii)bearing in
mind the aforesaid distinction, while the limitation provided for filing of
an appeal would be mandatory, the limitation provided for filing of a
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W.A(MD).No.7 of 2015
revision application would only be directory (iii) Thus, the Revisional
Authority ought to have been directed to deal with the reasons set out for
delay in filing the revisional application and dispose the condonation
application on merits.
6.Incidentally, the petitioner has not even sought condonation
of delay before the Revisional Authority. That apart, the petitioner has
filed a statutory appeal as against order of dismissal dated 20.05.2009
before the Appellate Authority under the Tamil Nadu Shops and
Establishments Act, 1947. There does not appear to have been any
disclosure in the revision petition about the fact that an appeal had been
preferred before the Appellate Authority that had been dismissed on
08.02.2011.
7.Be that as it may, both the Revisional Authority and the
learned Single Judge have arrived at the conclusion that there was no
provision for condonation of delay available under Section 153 of the
Act. We are in agreement with that conclusion.
8.As regards the distinction between 'appeal' and 'revision', no
arguments have been advanced on the score by the appellant. We find
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W.A(MD).No.7 of 2015
that both Section 152 of the Act dealing with 'appeal' and Section 153 of
the Act dealing with 'revision', may be availed by a person aggrieved by
the original order. That apart, it is a settled position that it is only where
legislature has provided for condonation that appellant/revisional
authorities may embark upon such an exercise.
9.Section 152 of the Act provides for such an avenue in
sub-section (3) as follows:
152.Appeals (1) Any person aggrieved by-
“(a)any decision or award passed or order made or
proceedings taken under sub-section (1) of section 87,
sub-section(2), sub-section (3) or sub-section (4) of
section 90, section 118, section 119, section 143, section
144 or section 167: or
(b)any award of an arbitrator or arbitrators under
sub-section (2) or sub-section (3) of section 90; or
(c)any award of an arbitrator under section 100, any
appeal to the Tribunal:
...
(3)Any appeal under sub-section.(1) or sub-section (2)
shall, subject to the other provisions of the Act, be
preferred within sixty days from the date of
communication of the decision, order, award, refusal,
registration or approval complained of, but the appellate
authority may admit an appeal preferred after the said
period of sixty days if it is satisfied that the appellant had
sufficient cause for not preferring the appeal within the
said period”.
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W.A(MD).No.7 of 2015
10. Enactments may provide for unlimited exercise of
discretion in condoning delay or limit such exercise, circumscribing the
period for which the discretion may be exercised. In Section 152 of the
Act, the legislature has not placed any fetters upon the power of an
appellate authority to condone delay. Section 153 of the Act, provides for
the filing of a revision application within 90 days from the date on which
the proceedings, decision or order to which the application relates was
communicated to the appellant and there is no provision for any
condonation beyond the period of 90 days.
11.We are thus unable to subscribe to the view that even in
such circumstances, the Revisional Authority may embark upon the
exercise of condonation of delay. Such an interpretation would
tantamount to rewriting the provisions of Section 153 by inserting such
power of condonation, which we are not inclined to do.
12.Though in the context of a revenue enactment, the Hon'ble
Supreme Court in the case of Assistant Commissioner (CT) Vs. Glaxo
Smith Kline Consumer Health Care Limited, [C.A.No.2413 of 2020
dated 06.05.2020] has considered the identical position reiterating the
settled position that an appeal, if filed beyond the period of condonation
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W.A(MD).No.7 of 2015
provided under statute, cannot be maintained before the statutory
appellate authority.
13.It is however open to a Writ Court, exercising power under
Article 226 of the Constitution of India to consider condonation beyond
the statutory period, if proper justification is provided for the delay, and
thereafter, remit the matter to the authority for decision on merits. This is
not such a case. As pointed out elsewhere, the petitioner has not even
sought condonation before the Revisional authority and hence, the
reasons for delay of four and a half year are wholly unknown.
14.In the light of the above discussion, we see no reason to
intervene and this Writ Appeal is dismissed. No costs.
[A.S.M.J.,] & [R.V.J.,]
17.07.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes
msa
https://www.mhc.tn.gov.in/judis
W.A(MD).No.7 of 2015
To
The Joint Registrar of Co-operative Societies
Virudhunagar Region
Virudhunagar District
https://www.mhc.tn.gov.in/judis
W.A(MD).No.7 of 2015
DR.ANITA SUMANTH, J.
AND
R.VIJAYAKUMAR, J.
msa
W.A.(MD)No.7 of 2015
Dated:
17.07.2023
https://www.mhc.tn.gov.in/judis
