REPORTABLE

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

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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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.

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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’.

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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)

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