Syed Zalil Akhtar v. Zila Sahkari Krishi Avam Gramin Vikas Bank, Mydt. .

Order

1. Heard the learned counsel for the appellant.

2. This appeal is directed against the order of the Division Bench dated 8-5-2009 passed in Saiyad Zalil Akhtar v. Zila Sahkari Krishi Avam Gramin Vikas Bank WP (C) No. 4089 of 2009 in and by which the Division Bench upheld the order of the Madhya Pradesh State Cooperative Tribunal dated 18-3-2009 passed in First Appeal No. 120 of 2008 along with First Appeal No. 67 of 2009. The Tribunal by the said order held that the appellant's application filed under Section 55(2) of the Madhya Pradesh Cooperative Societies Act was belated by 2 days and since there being no provision for condoning any delay in filing of the appeal and Section 5 of the Limitation Act was also not applicable, the application of the appellant against the order of punishment, was liable to be rejected. The Division Bench having now confirmed the said order of the Tribunal the appellant is before us.

3. To briefly narrate the sequence of events, the appellant is an employee of the respondent Bank which is a Cooperative Bank. For certain acts of misconduct, he was proceeded against and by an order dated 8-8-1995 he was imposed with the punishment of freezing of 5 increments which resulted in his then current salary of Rs 1600 which was brought down to the minimum level of Rs 1180. Aggrieved against the said order, the appellant filed an application before the Deputy Registrar on 11-9-1995. As per Section 55(2) of the Act, the appeal ought to have been filed on or before 8-9-1995. Unfortunately, the Deputy Registrar who was competent to decide his application by his order dated 16-4-2002, upheld the order of punishment dated 8-8-1995. It must be stated that at that point of time, the question of limitation appeared to have been not raised by the respondent herein. The appellant preferred an appeal before the Joint Registrar who partially allowed his appeal by his order dated 29-4-2003.

4. As against the said order, the appellant as well as the respondent preferred appeals before the Cooperative Appellate Tribunal. The Appellate Tribunal by its order dated 24-7-1996, in SAs Nos. 1 and 18 of 2002 remitted the matter back to the Joint Registrar for fresh disposal. The Joint Registrar by his order dated 21-4-2008, again partially allowed the case of the appellant which gave rise to filing of two appeals before the Appellate Tribunal in First Appeals Nos. 120 of 2008 and 67 of 2009. It must be stated that till the above appeals came to be disposed of, the question of limitation was not a point in issue before any of the forums earlier.

5. By the order dated 18-3-2009, the Tribunal for the first time dealt with the question of limitation after having noted that there was two days' delay in filing the appeal and there being no provision for condoning the delay by the original authority, rejected the original application itself on the ground of delay. The appellant challenged the said order in the writ petition. The Division Bench has now passed the impugned order dated 8-5-2009 WP (C) No. 4089 of 2009 affirming the view of the Tribunal by following the decision of this Court in Noharlal Verma v. District Coop. Central Bank Ltd. (2008) 14 SCC 445 and held that the application of the appellant was barred by limitation and there was no power for the original authority to condone any delay and consequently, the application itself was held as not maintainable.

6. Assailing the said order, the learned counsel for the appellant submitted before us that the decision relied upon by the Division Bench is no longer good law in the light of the recent decision of this Court in State of M.P. v. Anshuman Shukla (2014) 10 SCC 814 rendered by a Bench consisting of three Judges of this Court, wherein they have followed earlier well-considered decision in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker (1995) 5 SCC 5. The learned counsel submitted that in the light of the above decisions when in identical circumstances this Court has held that the authority who dealt with the application of the appellant, Section 29(2) of the Limitation Act was attracted and consequently all the provisions of Sections 4 to 26 are applicable. Section 5 of the Limitation Act can, therefore, apply and consequently the application of the appellant could not have been rejected without considering the claim for condonation of delay of two days in filing the appeal.

7. Having perused the impugned judgment WP (C) No. 4089 of 2009 and the decisions relied upon by the Division Bench as well as the decision which has now been placed before us, we find force in the submission of the learned counsel for the respondent. In fact for academic reasons we can also note that subsequently in 2010, the State has introduced an amendment in Section 55 by adding thereto a proviso under which the Registrar or the officer who was empowered to deal with the dispute including the one relating to the disciplinary action can entertain the application after the expiry of 30 days if the applicant satisfies the Registrar or officer referred to in the said section that he had sufficient cause for not preferring the dispute in time. In fact one of the cases dealt with by this Court relied upon by the learned counsel for the appellant was also the case arising under the Cooperative Societies Act.

8. It must be held that the authority having been empowered under Section 55 to deal with the application of the appellant in challenging the order of punishment; having regard to the nature of enquiry to be held by it and in the course of such enquiry the consideration of relevant materials to be examined and the ultimate conclusion to be drawn as to the correctness or otherwise or the justification of the order of punishment; would necessarily carry out an exercise which can be validly brought within the four corners of the expression as has been rightly held by this Court in the abovereferred two decisions, namely, Mukri Gopalan case (1995) 5 SCC 5 which was approved and followed in the recent decision of this Court in Anshuman Shukla case (2014) 10 SCC 814.

9. In the decision Mukri Gopalan case (1995) 5 SCC 5, after a detailed analysis we find, this Court, after noting the repealed proviso of the earlier Limitation Act and the coming into force of the present Limitation Act, 1963 has held as under:

“14. In view of the aforesaid provision of Section 29(2) as found in the Limitation Act, 1908, Section 5 would not have applied to appellate authorities constituted under Section 18 as Section 5 would not get attracted as per the then existing Section 29(2) of the Limitation Act, 1908 which did not include Section 5 as one of the provisions to be applied to such special or local laws. That appears to be the reason why during the time when the Limitation Act, 1908 was in force, the Rent Act of 1959 which is the forerunner of present Rent Act of 1965 contained a provision in Section 31 of that Act which read as under—

‘31. Application of the Limitation Act.—The provisions of Section 5 of the Indian Limitation Act, 1908 (9 of 1908), shall apply to all proceedings under this Act;’

15. After repealing of the Limitation Act, 1908 and its replacement by the present Limitation Act of 1963 a fundamental change was made in Section 29(2). The present Section 29(2) as already extracted earlier clearly indicates that once the requisite conditions for its applicability to given proceedings under special or local law are attracted, the provisions contained in Sections 4 to 24 both inclusive would get attracted which obviously would bring in Section 5 which also shall apply to such proceedings unless applicability of any of the aforesaid sections of the Limitation Act is expressly excluded by such special or local law. By this change it is not necessary to expressly state in a special law that the provisions contained in Section 5 of the Limitation Act shall apply to the determination of the periods under it. By the general provision contained in Section 29(2) this provision is made applicable to the periods prescribed under the special laws. An express mention in the special law is necessary only for any exclusion. It is on this basis that when the new Rent Act was passed in 1965 the provision contained in old Section 31 was omitted. It becomes therefore apparent that on a conjoint reading of Section 29(2) of the Limitation Act of 1963 and Section 18 of the Rent Act of 1965, provisions of Section 5 would automatically get attracted to those proceedings, as there is nothing in the Rent Act of 1965 expressly excluding the applicability of Section 5 of the Limitation Act to appeals under Section 18 of the Rent Act.”

10. Thus a critical analysis of the applicability of Section 5 of the Limitation Act in a situation of this kind has been elaborately made and the above conclusion has been drawn by this Court as early as in the year 1995. Unfortunately this decision appears to have not been brought to the notice of this Court in Noharlal case (2008) 14 SCC 445. Moreover, in the said decision this Court by simply referring to the relevant provision under which the limitation has been prescribed, namely, Section 55 straightaway held as under:

“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.”

11. Having noted the said view expressed in para 34, as compared to a detailed analysis made in the earlier decision of this Court made in Mukri Gopalan case (1995) 5 SCC 5 we are of the considered view that in the light of the subsequent larger Bench decision of this Court in Anshuman Shukla case (2014) 10 SCC 814 which has given its seal of approval to the decision in Mukri Gopalan case (1995) 5 SCC 5, the latter decision can be followed in all respects and the one held in Noharlal Verma case (2008) 14 SCC 445 cannot be said to be good law.

12. Therefore, applying the law thus laid down by this Court in Mukri Gopalan case (1995) 5 SCC 5 and Anshuman Shukla case (2014) 10 SCC 814 we are convinced that Section 5 of the Limitation Act would apply in all force to the case on hand and consequently when we consider the extent of delay involved, we find that the last date for filing the application was 8-9-1995, application was presented on 11-9-1995, in between two days, namely, 9-9-1995 and 10-9-1995 were second Saturday and Sunday. Therefore, it must be held that there was every justification and sufficient cause for the appellant in his claim for condoning the said two days in filing the application before the original authority. Consequently, we ourselves hereby condone the said delay of two days and since the Tribunal by its order dated 18-3-2009 merely dismissed the appeals of the appellant as well as that of the respondent on the sole ground of delay caused by the appellant in preferring the original application, the said order cannot be sustained.

13. Therefore, while setting aside the judgment impugned in this appeal as well as the order of the Tribunal dated 18-3-2009 the appeals, namely, First Appeals Nos. 120 of 2008 and 67 of 2009 are remitted back to the Tribunal for disposing of the same on merits and in accordance with law. Since considerable time has intervened, we only direct the Tribunal to dispose of the appeals expeditiously preferably within two months from the date of communication of this order.

14. The appeal stands allowed on the above terms.