Madhya Pradesh High Court
Distt. Central Cooperative Bank Ltd. vs Madanlal on 22 April, 2016
Author: P.K. Jaiswal
Bench: Alok Verma, P.K. Jaiswal
1
WP No.606/2005
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
D.B.: Hon'ble Shri P.K. Jaiswal
Hon'ble Shri Alok Verma, JJ.
Writ Petition (s) No.606/2005
District Central Cooperative Bank Limited
Versus
Shri Madanlal s/o Bhanwarlal Udiya
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Shri A.K. Sethi, learned Senior Counsel with Shri Harish Joshi,
learned counsel for the petitioner.
Shri B.L. Pavecha, learned Senior Counsel with Shri Nitin
Phadke, learned counsel for the respondent.
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ORDER
(Passed on this 22nd day of April, 2016) Per P.K. Jaiswal, J.
By this writ petition under Article 226 of the Constitution of India, the petitioner is claiming the following relief: -
A. The order dated 25.10.2001 passed in Dispute Case No.39/97-98 (P/9) by the D.R.C.S. Mandsaur, the appellate order dated 08.04.2002 (P/10) passed by the J.R.C.S. Ujjain, Division Ujjain, in Appeal No.78/42/01-02, as well as the order dated 13.10.2004 passed by the MP State Cooperative Tribunal, Bhopal in Appeal No.123/2002 be quashed.
B. To award costs of this petition from the respondent.
C. Any other relief, which this Hon'ble Court may deem fir in the facts and circumstances of the case in favour of the petitioner and against the respondent.
2 WP No.606/20052. Brief facts of the case are that the respondent was appointed as Upper Division Clerk in the petitioner - Bank on 03.04.1965 and subsequently he was promoted as Accountant / Agent. The show cause notices were issued by the petitioner - Bank making ten different allegations against the respondent on 25.07.1981 and 23.02.1983 respectively. The respondent was placed under suspension and after enquiry, he was exonerated and was reinstated with back wages by order dated 29.06.1983.
3. Thereafter, on 08.02.1984, the respondent was again served with fresh show cause notice repeating the same allegations; to which, he submitted his reply. After Departmental Enquiry, Enquiry Officer has submitted his report, but the Disciplinary Authority has dissented from the findings recorded by the Enquiry Officer and consequently, a show cause notice was issued to the respondent to show cause as to why punishment of dismissal from service be not given to him.
4. On 27.02.1987, the respondent was confirmed on the post of Agent and on 15.03.1988, he was directed to appear at the Head Office, while working as Branch Manager, Garoth Branch.
5. On 22.03.1988 vide Annexure P/1, the respondent raised a dispute under Section 55 (2) of the 3 WP No.606/2005 Madhya Pradesh Cooperative Societies Act, 1960 (hereinafter referred to as 'the Act') before the Deputy Registrar, Cooperative Societies, Mandsaur, seeking temporary injunction against the termination of his services. The Deputy Registrar, Cooperative Societies, Mandsaur has granted an ex parte injunction on 22.03.1988. On the same day, i.e. 22.03.1988 (Annexure P/2), the petitioner - Bank passed an order terminating the services of the respondent, which was served upon the respondent on 24.03.1988. In pending dispute, the respondent filed an application for amendment of the plaint on 29.04.1988, challenging the order of his termination. On 10.02.1992, temporary injunction granted in favour of the respondent on 22.03.1988 was confirmed. The petitioner - Bank challenged the aforesaid order by filing an appeal before the Joint Registrar, Cooperative Societies, Ujjain. On 25.07.1991 vide Annexure P/4, order dated 10.05.1988 was set aside. On 10.02.1992, the amendment application was allowed and the amendment was incorporated on 20.02.1992.
6. On 06.12.1996 (Annexure P/6), the Deputy Registrar, Cooperative Societies, Mandsaur set aside the order of dismissal of the respondent dated 22.03.1988 and directed his reinstatement without back wages. The petitioner - Bank as well as the 4 WP No.606/2005 respondent - employee partly aggrieved by the aforesaid order filed an appeal before the Joint Registrar, Cooperative Societies, Ujjain Division, Ujjain. Both the appeals were heard analogously and by order dated 06.08.1997 (Annexure P/7), both the appeals were disposed of and the learned Joint Registrar, Cooperative Societies, Ujjain remanded the matter to the Deputy Registrar, Cooperative Societies, Mandsaur for taking afresh decision in the matter, after framing an issue on the point of limitation raised by the petitioner - Bank. Thereafter, the aforesaid order was challenged by the respondent - employee by filing a revision before the Madhya Pradesh State Cooperative Tribunal, Bhopal and the same was dismissed on 28.06.2000 vide Annexure P/8.
7. After remand, the Deputy Registrar, Cooperative Societies, Mandsaur on 25.10.2001 (Annexure P/9) allowed the dispute raised by the respondent - employee and he was ordered to be reinstated with all consequential benefits, holding that the claim was within limitation. It is also held that the entire exercise undertaken by the petitioner - Bank was mala fide.
8. In an appeal filed by the petitioner - Bank, the Joint Registrar, Cooperative Societies, Ujjain by order dated 08.04.2002 (Annexure P/10) dismissed 5 WP No.606/2005 the appeal and affirmed the findings regarding the issue of limitation and termination being mala fide.
9. The petitioner - Bank challenged the said order by filing a second appeal before the Madhya Pradesh State Cooperative Tribunal, Bhopal on 30.05.2002 vide Annexure P/11. As the Madhya Pradesh State Cooperative Tribunal was not functioning due to non-availability of the Presiding Officer / Chairman, a writ petition was filed by the petitioner - Bank under Article 227 of the Constitution of India vide Writ Petition No.21/2003. Learned Writ Court by order dated 03.02.2003 (Annexure P/13) granted conditional stay and disposed of the writ petition by passing the following order: -
"Shri A.K. Sethi for petitioner. Shri A. Nimgaonkar for respondent. The need to file this writ petition has arisen because the Cooperative Tribunal before whom the appeal was filed by petitioner against the order of Joint Registrar is not functioning due to non-availability of the Presiding Officer (Chairman). It is, however, contended by learned counsel for petitioner that since the respondent has already attained the age of superannuation, it may not be necessary for this Court to direct his reinstatement in service even if the appeal is eventually dismissed. The only point that remains to be considered according to petitioner now in appeal is whether respondent is entitled to claim back wages which has been awarded by the Deputy 6 WP No.606/2005 Registrar as also by the Joint Registrar while setting aside termination order of respondent.
In my opinion, the execution of impugned orders directing payment of back wages to the respondent need to be stayed on the condition that petitioner will work out the actual amount payable by the petitioner to the respondent by way of back wages and will pay the same together with the interest accrued thereon from the date of the order passed by Deputy Registrar till its actual payment at the rate of 9% per annum. The liability to pay the amount together with interest as mentioned supra will arise only if the appeal filed by the petitioner is eventually dismissed and order of Deputy Registrar and that of Joint Registrar are upheld by the Tribunal. The parties are directed to produce copy of this order before the Tribunal for their record.
It is with these observations petition is finally disposed of at this stage itself."
10. On 13.10.2004, second appeal preferred by the petitioner - Bank before the Madhya Pradesh State Cooperative Tribunal, Bhopal has been dismissed vide Annexure P/12 and the findings recorded by the Deputy Registrar, Cooperative Societies, Mandsaur have been affirmed. The petitioner - Bank has challenged the orders passed by the Deputy Registrar, Cooperative Societies, Mandsaur; Joint Registrar, Cooperative Societies, Ujjain; and Madhya Pradesh State Cooperative Tribunal, Bhopal by filing the present writ petition under Article 227 of the Constitution of India mainly on the ground of 7 WP No.606/2005 limitation and back wages and submitted that as per Section 55 (2) of the Act, the dispute was to be filed within thirty days from the date of communication of the order dated 22.03.1988 served upon the respondent - employee on 24.03.1988 i.e. up to 23.04.1988. It is submitted that admittedly the application for amendment was filed on 29.04.1988 challenging the order of his dismissal from service dated 22.03.1988. For the first time, after expiry of the period of thirty days, which was barred by limitation and he submitted that provisions of Section 65 of the Act are not attracted in the present case as the provisions are only applicable to the dispute under Section 64 of the Act and in such circumstances even the delay in filing the dispute cannot be condoned in absence of any provisions of condonation of delay in filing the dispute. The learned Authorities have committed an error apparent on the face of record by holding that the dispute was not time barred.
11. In respect of back wages, learned Senior Counsel for the petitioner - Bank has submitted that prior to the law laid down by the Apex Court in the case of U.P. State Brass-ware Corporation Limited v. Uday Narain Pandey reported in (2006) 1 SCC 479, back wages on grant of reinstatement was automatic, but after the aforesaid 8 WP No.606/2005 decision full back wages cannot be allowed automatically or mechanically only because an order of termination is found to be unsustainable. The employee has to prove that during the period of termination, he was not gainfully employed.
12. In the present case, the respondent - employee did not plead that he, after his termination, was wholly unemployed. There is no pleading in the dispute nor any evidence was recorded to show that the respondent - employee not gainfully employed. In view of the aforesaid, the learned authorities have committed an error in awarding back wages to the respondent - employee and prays for setting aside of the impugned orders.
13. Per contra, Shri B.L. Pavecha, learned Senior Counsel for the respondent - employee has submitted that even though there is no express provision for condonation of delay in Section 55 (2) of the Act, but the provisions of Section 5 of the Limitation Act would apply to these proceedings by virtue of Section 29 (2) of the Limitation Act, as there is no express exclusion of Section 5 of Limitation Act. Since the Act does not specifically prohibit application of the provisions of Sections 5 and 14 of the Limitation Act on the disputes filed under Section 55 (2) of the Act, and therefore, provisions of Sections 5 and 14 of the Limitation Act 9 WP No.606/2005 regarding condonation of delay are applicable on the dispute filed under Section 55 (2) of the Act. To support the aforesaid, he has drawn our attention to the decisions of the Madhya Pradesh High Court in the case of Gwalior Dugdh Sangh Sahakari Maryadit, Gwalior & another v. Narendra Pal Singh Rana & others reported in 2002 (4) MPLJ 519; Amar Singh v. MP State Marketing Federation & others reported in 2003 RN 41 and decision of the Apex Court in the case of Syed Zalil Akhtar v. Zila Sahakari Krishi Avam Gramin Vikas Bank Mydt. reported in 2016 (1) JLJ 291.
14. In respect of amendment application for claiming relief of reinstatement with back wages, he submitted that the application was made on 29.04.1988 in the plaint filed on 22.03.1988. Any amendment in the plaint relates back to the date of the suit unless a different or contrary direction is made in the order allowing amendment.
15. In the present case, amendment was allowed on 10.02.1992 without any direction, and therefore, the learned Authority rightly set aside the order of reinstatement. He also placed reliance on paragraph No.10 of the decisions of the Supreme Court in the case of Siddalingamma & another v. Mamtha Shenoy reported in (2001) 8 SCC 561 and in the case of 10 WP No.606/2005 Sampath Kumar v. Ayyakannu and another reported in (2002) 7 SCC 559.
16. In respect of back wages, he submitted that the petitioner - Bank having enjoyed the stay on the conditions imposed by this Court vide order dated 03.02.2003 passed in Writ Petition No.21/2003, it is not open to the petitioner to wriggle out of the conditions imposed therein or to claim any reduction or relaxation therein. On dismissal of the second appeal by the MP State Cooperative Tribunal, the petitioner - Bank is bound to pay the entire back wages with interest calculated at 9% per annum as per order dated 03.02.2003 of this Court. He also submitted that all the three Authorities have concurrently exercised discretion in favour of granting full back wages, after holding the termination of respondent to be mala fide and groundless. The exercise of this discretion cannot be called in question in a writ petition under Article 227 of the Constitution of India.
17. In respect of decision of the Apex Court in the case of U.P. State Brass-ware Corporation Limited v. Uday Narain Pandey (supra), he placed reliance on paragraph No.15 of the decision of the Apex Court in the case of Jasbir Singh v. Punjab & Sind Bank reported in (2007) 1 SCC 566 and submitted 11 WP No.606/2005 that the judgment in the case of U.P. State Brass- ware Corporation Limited v. Uday Narain Pandey (supra) was further explained and the Hon'ble Supreme Court has held that it is applicable in cases arising out of labour or industrial disputes. The respondent was holding a civil post and, therefore, his case stand on a different footing. He placed reliance on paragraphs No.16, 17 and 18 of the decision in the case of Correspondent, St. Michael's Teacher's Training Institute v. V.N. Karpaga Mary and others reported in (2008) 7 SCC 388 and in the case of Roop Singh Negi v. Punjab National Bank & others reported in (2009) 2 SCC 570 and prayed for dismissal of the writ petition.
18. In respect of question of limitation, the law is well settled by the Apex Court in the case of Syed Zalil Akhtar v. Zila Sahakari Krishi Avam Gramin Vikas Bank Mydt. (supra), wherein the Apex Court held that Section 5 of the Limitation Act would apply in all force to the case on hand and consequently condoned the delay by holding that there was every justification and sufficient cause for the appellant in his claim for condoning the said two days delay in filing the application before the original authority.
19. Here, in the present case, the Tribunal 12 WP No.606/2005 considered the question of limitation in appeal in paragraphs No.12 to 14 of the impugned order dated 13.10.2004 (Annexure P/12). It is also not disputed by the learned Senior Counsel for the petitioner that there is no express provision for condonation of delay in Section 55 (2) of the Act and the provisions of Section 5 of the Limitation Act would apply to these proceedings by virtue of Section 29 (2) of the Limitation Act and thus, the learned Authorities have not committed any legal error in condoning the delay of 6-7 days, even though there was no application for condonation of delay.
20. In the present case, no direction was made by the learned Deputy Registrar, Cooperative Societies, Mandsaur while allowing the application for amendment on 10.02.1992 and thus, in view of the law laid down by the Apex Court in the case of Siddalingamma & another v. Mamtha Shenoy (supra and in the case of Sampath Kumar v. Ayyakannu and another (supra), any amendment in the plaint relates back to the date of the suit unless a different or contrary direction is made in the order allowing amendment. Thus, we, relying on the aforesaid analogy, fully agree with the arguments of the learned counsel for the respondent - employee and the order on amendment passed by the learned 13 WP No.606/2005 Authorities.
21. In respect of back wages, learned Writ Court, while disposing of Writ Petition No.21/2003, granted conditional stay, that on dismissal of the second appeal by the Madhya Pradesh State Cooperative Tribunal, Bhopal, the petitioner - Bank has to pay the entire back wages with interest at the rate of 9% per annum. This order was passed in a writ petition filed by the petitioner - Bank. The petitioner - Bank enjoyed the stay order before the learned Authorities, and therefore, we are of the view that the respondent - employee is entitled for full back wages, because all the three Authorities have concurrently exercised their discretion in favour of grant of full back wages, after holding termination of the respondent - employee as mala fide and groundless. The grant or refusal of back wages is no doubt discretionary and does not follow as a rule of thumb on termination being set aside. This discretion is to be exercised by the Tribunal after taking into account all facts and circumstances of the case, the conduct of the parties and length of services up to the termination, being the most important of them. The discretion has been exercised by the learned Authorities concurrently in favour of the respondent - employee on these vital considerations. The decision in the case of U.P. State Brass-ware Corporation 14 WP No.606/2005 Limited v. Uday Narain Pandey (supra) has been further explained by the Hon'ble Supreme Court by holding that it is applicable in cases arising out of labour or industrial disputes. The present case does not come within the aforesaid two categories. The respondent was holding a civil post and his case stand on a different footing.
22. Under Article 227 of the Constitution of India, there is limited scope to interfere with the order passed by the MP State Cooperative Tribunal. We can interfere with incorrect decision of the learned Tribunal only if it had given such conclusion based on wrong interpretation. The error alleged must be apparent on the face of record. The Apex Court in the case of K.V.S. Ram v. Bangalore Metropolitan Transport Corporation reported in (2015) 12 SCC 39 held that in exercise of superintendence under Article 227 of the Constitution, this Court can interfere with order of Tribunal only when there is patent perversity in orders of Tribunal and Courts subordinate to it, or where there is gross and manifest failure of justice or principles of natural justice have been flouted.
23. On going through the findings recorded by the learned Authorities below, we are of the view that the Deputy Registrar, Cooperative Societies, 15 WP No.606/2005 Mandsaur; Joint Registrar, Cooperative Societies, Ujjain and Madhya Pradesh State Cooperative Tribunal, Bhopal have not committed any legal error or gave finding dehors of any statutory provision while reinstating the respondent - employee and granting back wages to him.
24. For these reasons, the writ petition filed by the petitioner - bank has no merit and is accordingly dismissed, without any order as to costs.
(P.K. Jaiswal) (Alok Verma)
Judge Judge
Pithawe RC