Madras High Court
P.Murugesan vs The Joint Registrar Of Co-Operative ... on 15 April, 2010
Author: P.Jyothimani
Bench: P.Jyothimani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/04/2010 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.(MD).No.4903 of 2010 P.Murugesan ... Petitioner Vs The Joint Registrar of Co-operative Societies, Dindigul Division, Dindigul. ... Respondent PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records of the respondent in Na.Ka.1828/2010/sapa., dated 31.03.2010, quash the same and consequently, direct the respondent to take up the revision petition on file and decide the same on merits and pass any other appropriate orders in the facts and circumstances of the case. !For Petitioner ... Mr.N.Sundareshan For M/s.Sun Associates ^For Respondent ... Mr.V.Rajasekaran Special Government Pleader ******* :ORDER
****** The writ petitioner has joined as a Secretary of the P.Devathur Co- operative Thrift Society on 02.04.1976 and after rendering 34 years of service, it is stated that due to illness, he has applied for leave for treatment and after the treatment was completed, when he joined for duty, the Special Officer of the said Society has refused to receive the certificate and issued a charge sheet against him for absence without permission. An enquiry was held, in which the petitioner has participated and produced records to show that he suffered from jaundice. However, ultimately, the petitioner came to be dismissed from service by order dated 10.07.2009, which is stated to have been received by the petitioner on 14.07.2009.
2. As against the said order, he has preferred a revision before the respondent under Section 153 of the Tamil Nadu Co-operative Societies Act on 03.03.2010 [hereinafter referred to as "the Act"]. The respondent has refused to receive the revision petition and returned the same on the basis that the revision petition has been filed beyond the period of limitation given under the Act. As per the Act, a revision would lie to the respondent under Section 153 of the Act within a period of 90 days of the order. The reason assigned by the petitioner before the respondent has been that due to the ill-health, he was unable to file the revision within the time stipulated under the Act. But, ultimately, by the said order dated 31.03.2010, the respondent has returned the revision only on the ground that the same came to be filed after the expiry of 90 days and the return appears to be on the ground that there is no specific provision under Section 153 of the Act enabling the revisional authority to entertain the revision filed after the expiry of the period of limitation. Section 153 of the Act is as follows:-
"Revision.- (1) The Registrar may of his own motion or on application, call for and examine the record of any officer subordinate to him or of the board or any officer of a registered society or of the competent authority constituted under sub-section (3) of section 75 and the Government may, of their own motion or on application, call for and examine the record of the Registrar, in respect of any proceedings under this Act or the rules or the by-laws not being a proceeding in respect of which an appeal to the Tribunal is provided by sub-section (1) of section 152 to satisfy himself or themselves as to the regularity of such proceedings, or the correctness, legality or propriety of any decision passed or order made therein; and, if, in any case, it appears to the Registrar or the Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, he or they may pass orders accordingly:
Provided that every application to the Registrar or the Government for the exercise of the powers under this section shall be preferred within ninety days from the date on which the proceedings, decision or order to which the application relates was communicated to the applicant. (2) No order prejudicial to any person shall be passed under sub-section (1) unless such person has been given an opportunity of making his representations.
(3) The Registrar or the Government, as the case may be, may suspend the execution of the decision or order pending the exercise of his or their power under sub-section (1) in respect thereof.
(4) The Registrar or the Government may award costs in any proceedings under this section to be paid either out of the funds of the society or by such party to the application for revision as the Registrar or the Government may deem fit."
3. The proviso to Section 153(1) of the Act, no doubt, makes it clear that a revision shall be filed within a period of 90 days from the date on which the decision or order came to be communicated to the applicant. The order came to be communicated to the petitioner on 14.07.2009 and he has filed the revision on 03.03.2010 and there appears to be more than 146 days delay in filing the revision. As stated above, the impugned order of the respondent in not entertaining the revision shows as if there are no powers on the part of the revisional authority to condone delay. It is equally true that there is no provision under Section 153 of the Act imposing a specific bar on the revisional authority from entertaining any revision filed beyond the statutory period, on considering the facts and circumstances of the case which has prevented the individual from filing such revision within the prescribed time. The revisional powers exercised by the respondent under Section 153 of the Act is a quasi judicial function exercised by the authority competent under the Act. While dealing with such similar circumstances, of course under the Tamil Nadu Stamp (Prevention of Under-Valuation of Instruments) Rules, 1968 r/w the Stamp Act, 1889, Section 47-A(10), where also as against the order passed under Section 47- A(5) of the Act, an appeal is postulated within two months from the date of order. Under the provision of the Tamil Nadu Stamp Act, there is no enabling provision available to the appellate authority to exercise the powers under Section 5 of the Limitation Act to condone delay under various circumstances. It was in those circumstances, when an appeal was filed before this Court with a delay, it was held in Indira Devi v. Inspector General of Registration reported in 2005(1) CTC 733 by a Division Bench of P.Sathasivam, J (as His Lordship then was) holding that in the absence of a specific provision excluding the application of Section 5 of the Limitation Act, the appellate authority has inherent right to consider the circumstances which prevented the party concerned from preferring appeal within the stipulated time and pass appropriate orders. The relevant paragraphs in the said judgment of the Division Bench are as follows:-
"5. There is no dispute that as per Rule 9(5)(a) of the said Rules, an appeal under Section (10) of Section 47-A shall be preferred within two months from the date of final order passed under sub-section (5) or sub-section (6) of Section 47-A. Though the relevant rule says that an appeal has to be preferred within two months from the date of final order passed, in the absence of specific exclusion regarding application of Section 5 of the Limitation Act, the learned counsel appearing for the petitioner drawing our attention to the decision of a Division Bench of this Court (Principal Seat) dated 31.3.2004 made in C.M.A.(NPD)Nos.896 and 897 of 2004 would submit that the appeal filed by the appellant before the first respondent is well within time. In the said decision, the Division Bench had occasion to consider the similar claim under the very same provision i.e Rule 9(5)(a) of the Rules referred to above. After referring to a judgment of the Supreme Court dealt with in a similar circumstance, the Division Bench has concluded thus:
"We, therefore, hold that the date of the order under Section 47-A for the purpose of deciding the limitation for filing appeals should be construed to mean the date of the service of the order. Hence, the date of order under Rule 9 of the said Rules shall be construed to mean the date of service of the order for the purpose of determining the time limit to prefer the appeals."
6. Inasmuch as there is a specific provision enabling the aggrieved person to file an appeal to the appellate authority, the first respondent herein viz., the Inspector General of Registration, as rightly observed by the Division Bench, unless the copy of the order is furnished/served on the aggrieved person, it would not be possible for him to file the appeal. We are in respectful agreement with the view expressed by the Division Bench.
7. In addition to this, as rightly pointed out by the learned counsel for the petitioner, inasmuch as there is no specific exclusion of Section 5 of the Limitation Act in the Rules, we are of the view that taking note of the fact that copy of the order passed by the second respondent dated 28.11.2002 has been served/received by the appellant only on 17.12.2002 and the appeal filed by the appellant on 10.02.2003 before the first respondent is well within time. The first respondent has committed error in dismissing the appeal stating that the same is barred by limitation. The impugned order of the first respondent dated 10.3.2003 is set aside. The first respondent is directed to hear the appeal on merits within a period of three months from the date of receipt of copy of this order after affording opportunity to all the parties concerned."
4. While construing a provision to decide as to whether the provision is mandatory or directory, law is well settled that the same has to be decided on the basis and in the context of the provision of that Act. Even if the term "shall" is used, whether the term should be treated as a mandatory or directory is based on the facts and circumstances of the case. While deciding the same, necessarily one has to take into consideration the inconvenience or injustice that may be caused by such literal interpretation of word "shall". There are circumstances where especially in fiscal law, the term "shall" is normally construed as mandatory. But, in cases where the technicalities are manipulated like the one under Section 153 of the Act wherein a time limit is prescribed for the purpose of filing a statutory revision, simply because the term "shall" is used that such revision has to be filed within a period contemplated therein, it does not mean as if the revisional authority has no jurisdiction to consider the factual circumstance to decide as to whether there was any compelling circumstance on the part of the authority in not approaching the Court within the time stipulated therein. If the term "shall" is to be used literally in such context, it would result in not only inconvenience but also gross injustice. Since such power of the authority to consider the factual circumstance which has prevented a person in approaching the Court is shut, it would result in the inconvenience and injustice to a party. The test to be followed in such cases especially when the power of the authority to condone delay under Section 5 of the Limitation Act is not taken away by a specific provision, is to find out as to whether the non-compliance of such provision causes inconvenience or injustice and if it does, then the Court has to construe the provision that the compliance is in mandatory in character, if not, it has to be taken as directory. That was the view of K.Govindarajan, J (as he then was) in Ponnammal v. Subburaman reported in 2003(3) CTC 385. Of course, the Court was dealing about an application under Order 8 Rule 1 of the Civil Procedure Code, 1908, wherein the written statement has to be presented within 30 days and in the absence of any provision for condoning the delay, the Court has taken a stand that by construing the term "shall", in those circumstances, should be treated as "may" and directory in nature, since the factual circumstances are to be gone into. The proposition of law in that regard was laid down by this Court in the above said case based on the judgment of the Supreme Court in Sharif-ud-Din v. Abdul Gani reported in AIR 1980 SC 303 making a distinction between the mandatory rule and directory rule, which is as follows:-
"16.To arrive at proper conclusion, we have to find out whether Order 8 of the Code is a mandatory provision or directory. If it is mandatory, the first conclusion could be sustained. If Court has no power to extend time even in cases of non-compliance for reasons beyond the control of the party or advocate, time should not be extended. If it is directory, the court can condone the delay and/or extend the time in cases of non-compliance within the time for the reasons beyond the control of the party or the advocate if it has power to extend the time. Even if the Court has power to extend time, in case of wilful, gross or deliberate default, the Court may refuse to extend the time.
17. A mandatory provision in a statute is one, which renders the proceedings illegal and void on omission to comply with the same strictly, while directory provision is one where the substantial compliance of which is sufficient to validate the proceeding. The other test which can be employed to determine whether the provision is mandatory or directory in character, is whether non-compliance of the particular provision causes inconvenience or injustice and if it does then the Court would say that that provision must be complied with and that it is mandatory in character.
18. Whether the statute is mandatory or directory, it depends upon the intent and object of the legislature and not upon the language or upon its form. For ascertaining the real intention of the legislature, the Court has to consider inter alia the nature and design of the statute and the conclusion which would follow from construing it one way or the other. If the object or intent of law is to be defeated by non-compliance with it, it should be considered as mandatory and if serious inconveniences will be created to innocent persons without very much furthering the object of enactment, the same has to be construed as directory. The circumstances, namely, the non-compliance with the provision is or is not visited by some penalty or the serious or trivial consequences that flows therefrom; and above all the object of the legislature will be defeated or furthered, are also to be considered."
5. Further, the condonation of delay is a matter of discretion and if the reason for such delay is properly explained, the same has to be accepted. The limitation is not to destroy any right of individuals and the same has to be taken with utmost care and consideration as it was held by this Court in N.Balakrishnan v. M.Krishnamurthy reported in 1998(2) CTC 533.
6. On the present factual matrix, by entertaining the statutory revision beyond the period of limitation, no gross injustice is going to be caused either to the department or to any other individuals in the sense that by entertaining the revision, the revisional authority is going to decide the validity or otherwise of the order of dismissal passed against the petitioner. Therefore, by foreclosing the right of the petitioner on the ground of limitation, certainly an injustice would be caused to the petitioner's case.
7. In such view of the matter, I am of the considered view that the stand taken by the respondent in returning the revision filed by the petitioner only on the ground that the revision has been presented after the period of 90 days should not stand in the right of the petitioner to agitate his right on the merit of the revision. In these circumstances, the impugned order of return made by the respondent stands set aside and the Writ Petition stands allowed. However, if the revision filed by the petitioner is re-presented within a period of one week from the date of receipt of a copy of this order, the revisional authority shall take note of the reasons adduced by the petitioner for entertaining the revision beyond the period of limitation and pass appropriate orders on merits and in accordance with law, within a period of four weeks thereafter. No costs.
SML To The Joint Registrar of Co-operative Societies, Dindigul Division, Dindigul.