Madras High Court
M. Saravanan vs The Joint Registrar Of Co-Operative ... on 27 April, 2012
Author: N. Paul Vasanthakumar
Bench: N. Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.4.2012
CORAM
THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR
WRIT PETITION NOS.12314 & 12315 OF 2012
M. SARAVANAN ... Petitioner in W.P.No.
12314 of 2012
P. SELVAM ... Petitioner in W.P.No.
12315 of 2012
Vs.
1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
NAMAKKAL
NAMAKKAL DISTRICT.
2 THE SPECIAL OFFICER
NO.622 MOHANUR PRIMARY
AGRICULTURAL CO-OP. BANK LTD
NO.14, BAZAAR STREEET
MOHANUR - 637 105.
NAMAKKAL DISTRICT. ... Respondents in both
WPs.
Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the records relating to the first respondent herein in Revision Petition Nos.5126/2011/Sa.Pa and 5125/2011/Sa.Pa., respectively, dated 12.9.2011 and quash the same and consequently issue a suitable direction directing the first respondent herein to consider the revision petitions on merits after condoning the delay in filing the revision petitions filed under section 153 (1) of the Tamilnadu Co-operative Societies Act, 1983.
For Petitioners : Mr. M.S.Palanisamy for Mr.P.K.Shivakumar
For Respondents : Mr.L.P.Shanmugasundaram, AGP
*********
COMMON ORDER
The prayer in these writ petitions are to quash the individual orders dated 12.9.2011 and direct the first respondent to consider the Revision Petitions filed under Section 153(1) of the Tamil Nadu Co-Operative Societies Act, 1983, on merits filed by the petitioners.
2. The case of the petitioners in both the writ petitions are that they were working as Salesmen in Mohanur Primary Agricultural Co-Operative Bank Secretary from 1.3.1990. As per G.O.Ms.No.289, Co-operative Department, dated 28.9.2007, the State Government fixed the salary for employees of P.A.C.Bs, which was to be in force for five years with effect from 1.7.1997. The circular issued by the second respondent was challenged by the Salem District Co-operative Society Employees Union by filing W.P.No.15631 of 2003 before this Court and this Court, by order dated 27.5.2003, granted interim order. Pursuant to the interim order passed by this Court, the respondents have not taken any further action.
3. While such being the position, the second respondent-Bank issued a notice on 17.10.2008 under Section 9-A of the Industrial Disputes Act for reduction of wages, to the petitioners, in the light of the said Government Order dated 28.9.2007. The petitioners have submitted their explanations to the second respondent stating that notice as contemplated under Section 9-A of the Industrial Disputes Act has not been followed by the second respondent. Thereafter, the petitioners have filed W.P.Nos.27376 of 2008 and 27407 of 2008 respectively and the same were dismissed and challenging the same, the petitioners have preferred Writ Appeal Nos.487 & 488 of 2010 and the same were disposed of with a direction to approach the Labour Court or the Tribunal.
4. Again, the petitioners have filed W.P.No.8993 of 2010 and the said writ petition was also dismissed on 25.11.2010. The said order copy was received by the petitioners only in the month of March, 2011. Since there is an alternative remedy of revision before the first respondent as per the provisions of the Tamil Nadu Co-operative Societies Act, 1983, the petitioners have filed revision petitions under Section 153(1) of the Tamil Nadu Co-operative Societies Act, 1983 on 22.7.2011 along with condone delay petitions. The first respondent also issued a show cause notice dated 2.8.2011 as to why the said revision petitions should not be rejected on the ground of delay and directed the petitioners to submit their explanations within a period of fifteen days. The petitioners have also submitted their explanations on 26.8.2011. Not satisfied with the explanation, the first respondent passed the impugned order on 12.9.2011 on the ground that the petitioners have filed revision petition belatedly and there is no provision for condoning the delay in filing the revision petitions. Against the said rejection of the revision petitions, the petitioners have filed these writ petitions.
5. The learned counsel appearing for the petitioners submitted that similar issue was considered by the Madurai Bench of this Court in W.P.(MD)No.4903 of 2010 and by order dated 15.4.2010. This Court found fault with the respondent therein in returning the revision on the ground of limitation and held that filing of revision beyond the period of 90 days shall not stand in the right of the petitioners therein to agitate his right on merit of the revision.
6. The learned Additional Government Pleader took notice for the respondents and submitted that the issue is covered by the order of Madurai Bench of this Court dated 15.4.2010, stated supra. In the said judgment, it is held thus:-
"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."
Apart from the above decision, this Court also considered similar issue in W.P.No.11822 of 2010 order dated 9.6.2010 and W.P.No.9733 of 2012 dated 17.4.2012.
8. Following the above referred orders, these writ petitions are allowed and the impugned orders dated 12.9.2011 are set aside. The N. PAUL VASANTHAKUMAR, J.
kb petitioners are directed to re-present the revision petitions before the first respondent, within a period of two weeks from the date of receipt of copy of this order and the revisional authority is directed to take note of the reasons adduced by the petitioners for entertaining the revision petitions beyond the period of limitation and pass orders on merits, within a period of four weeks after hearing the second respondent also. No costs.
Index : Yes 27.4.2012 Internet : Yes kb
To
1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
NAMAKKAL
NAMAKKAL DISTRICT.
2 THE SPECIAL OFFICER
NO.622 MOHANUR PRIMARY
AGRICULTURAL CO-OP. BANK LTD
NO.14, BAZAAR STREEET
MOHANUR - 637 105.
NAMAKKAL DISTRICT.
W.P.Nos.12314 &
12315 of 2012