M.P. State Cooperative Bank Mydt. ... vs Sushil Kumar Kanoongo on 11 September, 2023

[Cites 8, Cited by 0]

Madhya Pradesh High Court

M.P. State Cooperative Bank Mydt. ... vs Sushil Kumar Kanoongo on 11 September, 2023

Bench: Maninder S. Bhatti

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 11 th OF SEPTEMBER, 2023
MISC. PETITION No. 2856 of 2023

BETWEEN:-
M.P. STATE COOPERATIVE BANK MYDT. BHOPAL
THROUGH ITS AUTHORIZED REPRESENTATIVE SHRI
P.S. TIWARI S/O LATE SHRI A N TIWARI AGED ABOUT 58
YEARS WORKING AS IN CHARGE MANAGING
DIRECTOR M.P. STATE COOPERATIVE BANK MYDT.
BHOPAL X BANK HEADQUARTERS T.T. NAGAR BHOPAL
(MADHYA PRADESH)

.....PETITIONER
(BY SHRI SUYASH MOHAN GURU - ADVOCATE)

AND
1. SUSHIL KUMAR KANOONGO S/O SHRI G.L.
KANNONGO OCCUPATION: SERVICE M.P. RAJYA
SAHAKARI BANK MARYADIT BAJAJKHANA
BRNACH INORE (MADHYA PRADESH)

2. VIRENDRA KUMAR PULAURIYA S/O SHRI L.S.
PULAURIYA OCCUPATION: SERVICE, M.P. RAJYA
SAHAKARI BANK MARYADIT HEAD OFFICE, T.T.
NAGAR, BHOPAL (MADHYA PRADESH)

3. UTTAM KUMAR YADAV S/O SHRI GANPATI
YADAV OCCUPATION: SERVICE, M.P. RAJYA
SAHAKARI BANK MARYADIT HEAD OFFICE, T.T.
NAGAR, BHOPAL (MADHYA PRADESH)

4. KAPIL KUMAR SAHU S/O SHRI KISHANLAL SAHU
OCCUPATION: SERVICE, M.P. RAJYA SAHAKARI
BANK MARYADIT HEAD OFFICE, T.T. NAGAR,
BHOPAL (MADHYA PRADESH)

5. KU. VIDHUTI PATIDAR D/O DR. S.L. PATIDAR
OCCUPATION: SERVICE, M.P. RAJYA SAHAKARI
BANK MARYADIT ARERA COLONY BRANCH,
BHOPAL (MADHYA PRADESH)

Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 9/14/2023
12:31:48 PM
2
6. MANISH VERMA S/O SHRI S.K. VERMA
OCCUPATION: NOTMENTION M.P. RAJYA
SAHAKARI BANK MYDT.BRANCH RAMPUR
(MADHYA PRADESH)

7. SMT. PRERANA YADAV W/O SHRI B.L. YADAV
OCCUPATION: SERVICE, M.P. RAJYA SAHAKARI
BANK MARYADIT JABALPUR BRANCH JABALPUR
(MADHYA PRADESH)

8. ROMESH SAXENA, S/O SHRI C.P. SAXENA
OCCUPATION: SERVICE, M.P. RAJYA SAHAKARI
BANK MARYADIT HEAD OFFICE, T.T. NAGAR,
BHOPAL (MADHYA PRADESH)

.....RESPONDENTS
(BY VISHNU CHANDRA DWIVEDI - ADVOCATE)

MISC. PETITION No. 2855 of 2023

BETWEEN:-
M.P. STATE COOPERATIVE BANK MYDT. BHOPAL
THROUGH ITS AUTHORIZED REPRESENTATIVE SHRI
P.S. TIWARI S/O LATE SHRI A.N. TIWARI AGED ABOUT
58 YEARS WORKING AS IN CHARGE MANAGING
DIRECTOR M.P. STATE COOPERATIVE BANK MYDT.
BHOPAL APEX BANK HEADQUARTERS T.T. NAGAR
BHOPAL (MADHYA PRADESH)

.....PETITIONER
(BY SHRI SUYASH MOHAN GURU)

AND
MURARILAL KHATIK S/O SHRI K.R. KHATIK
OCCUPATION: SERVICE POST PATHARIA TEHSIL
PATHARIA DISTRICT DAMOH (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI ALOK VAGRECHA - ADVOCATE)

MISC. PETITION No. 2857 of 2023

BETWEEN:-
M.P. STATE COOPERATIVE ANK MYDT. BHOPAL
THROUGH ITS AUTHORIZED REPRESENTATIVE SHRI
P.S. TIWARI S/O LATE SHRI A. N. TIWARI AGED ABOUT
Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 9/14/2023
12:31:48 PM
3
58 EARS WORKING AS IN CHARGE MANAGING
DIRECTOR M.P. STATE COOPERATIVE BANK MYDT.
BHOPAL M.P. STATE COOPERATIVE BANK MYDT.
BHOPAL APEX BANK HEADQUARTERS T.T. NAGAR
BHOPAL (MADHYA PRADESH)

.....PETITIONER
(BY SHRI SUYASH MOHAN GURU - ADVOCATE)

AND
SHRIKANT PANDEY S/O SHRI S.L. PANDEY
OCCUPATION: EX- SERVICEMENT WITH M.P. STATE
COOPERATIVE BANK BYDT. BHOPAL R/O 13 HOUSING
BOARD COLONY CHHATRSAL CHOURAHA DISTRICT
CHHATARPUR (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI ALOK VAGRECHA - ADVOCATE)

MISC. PETITION No. 2859 of 2023

.....PETITIONER
(BY SHRI SUYASH MOHAN GURU - ADVOCATE)

AND
1. PANKAJ KUMAR SAHU S/O SHRI B.P. SAHU
OCCUPATION: SERVICE M.P. RAJYA SAHAKARI
BANK MARYADIT RAMPUR BRANCH JABALPUR
DISTRICT JABALPUR (MADHYA PRADESH)

2. SHANKAR PATIDAR S/O SHRI S.R. PATIDAR
OCCUPATION: SERVICE M.P RAJYA SAHAKARI
BANK MARYADIT KHARGONE DISTRICT
KHARGONE (MADHYA PRADESH)

3. BALKRISHNA YADAV S/O LATE SHRI M.R. YADAV
OCCUPATION: SERVICE M.P RAJYA SAHAKARI
BANK MARYADIT HEAD OFFICE T.T. NAGAR
Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 9/14/2023
12:31:48 PM
4
BHOPAL (MADHYA PRADESH)

4. MOHAN SINGH RATHORE S/O SHRI MOTE SINGH
RATHORE OCCUPATION: SERVICE M.P RAJYA
SAHAKARI BANK MARYADIT HEAD OFFICE T.T.
NAGAR BHOPAL (MADHYA PRADESH)

5. LAKHAN SINGH SOLANKI S/O SHRI CHANDAN
SINGH SOLANKI OCCUPATION: SERVICE M.P
RAJYA SAHAKARI BANK MARYADIT HEAD
OFFICE T.T. NAGAR BHOPAL (MADHYA PRADESH)

6. VIKRAM SINGH CHOUHAN S/O SHRI KESARI
SINGH CHOUHAN OCCUPATION: SERVICE M.P
RAJYA SAHAKARI BANK MARYADIT HEAD
OFFICE T.T. NAGAR BHOPAL (MADHYA PRADESH)

7. KRISHNLAL YADAV S/O SHRI Y.K. YADAV
OCCUPATION: SERVICE M.P RAJYA SAHAKARI
BANK MARYADIT BAJAJKHANA BRANCH
INDORE (MADHYA PRADESH)

8. MANISH MALHOTRA S/O SHRI D. MALHOTRA
OCCUPATION: SERVICE M.P RAJYA SAHAKARI
BANK MARYADIT UJJAIN BRANCH DISTRICT
UJJAIN (MADHYA PRADESH)

9. SMT. SHEELA THAKUR W/O SHRI B.D. THAKUR
OCCUPATION: SERVICE M.P RAJYA SAHAKARI
BANK MARYADIT BHILAI BRANCH DISTRICT
BHILAI C.G. (CHHATTISGARH)

10. SMT. RACHNA MATHUR W/O SHRI S. MATHUR
OCCUPATION: SERVICE M.P RAJYA SAHAKARI
BANK MARYADIT BHILAI BRANCH DISTRICT
BHILAI C.G. (CHHATTISGARH)

11. RAJENDRA KUMAR PATIDAR S/O SHRI P.C.
PATIDAR OCCUPATION: SERVICE M.P RAJYA
SAHAKARI BANK MARYADIT BRANCH NIHALPUR
DISTRICT INDORE (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI VISHNU CHANDRA DWIVEDI - ADVOCATE)

This petition coming on for admission this day, th e court passed the
following:
ORDER

Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 9/14/2023 12:31:48 PM 5 This order shall govern disposal of aforementioned four cases.

1. This is a petition assailing the orders dated 24.12.2019 (Annexure P/8) and 26.4.2023 (Annexure P/12) in all the petitions.

2. Counsel for the petitioners contends that initially the respondents had assailed their termination by taking recourse to remedy available in terms of Section 55 of M.P. Cooperative Societies Act, 1960 (hereinafter referred to as "Act of 1960" for the sake of brevity). The Joint Registrar vide order dated 10.8.2021 contained in Annexure P-2, though held that the termination of the petitioner was illegal and accordingly set aside the same yet also observed that their induction in service was not in accordance with the statutory provisions contained in the Act as well as Rules made there-under. The Joint Registrar also made an observation that if in future steps are taken to fill up the vacancies, the entire exercise shall be done while ensuring adherence to the statutory provisions. The order passed by the Joint Registrar was assailed before the Tribunal by the employees. The Tribunal vide an order contained in Annexure P-3 dated 29.3.2006 remitted back the matter to the Joint Registrar again while permitting the petitioner Bank to incorporate certain amendments in the written statement and the Joint Registrar was further extended liberty to frame additional issues and record further additional evidence. The order passed by the Tribunal dated 29.3.2006 was assailed before this Court in a writ petition filed vide W.P. No. 4822/2006 by the employees. The said Writ Petition was dismissed vide an order dated 29.1.2008. Thereafter the employees filed Writ Appeal as well. The Writ Appeal was also dismissed vide order dated 10.1.2011 (Annexure P-5). Thereafter Special Leave Petition was filed by the employees vide Special Leave to Appeal (C) Nos. 17329-17334/2011; however, Signature Not Verified the same was also dismissed by an order dated 22.1.2019 (Annexure P-6).

Signed by: VIVEK KUMAR TRIPATHI Signing time: 9/14/2023 12:31:48 PM 6

Thereafter in terms of the original order of remand by the Tribunal, which is contained in Annexure P-3, the Joint Registrar passed an order afresh on 24.12.2019 (Annexure P-8) and concluded that as similarly situated employees in Gwalior were protected and their appointments were not disturbed while keeping the principle of parity, the Joint Registrar also held that the respondent/employees herein are also entitled for the same benefit and accordingly their termination orders were set aside by the Joint Registrar.

3. Initially the order of Joint Registrar dated 24.12.2019 was subject matter of a suo motu revision but the said suo motu revision was dismissed vide order dated 28.1.2022 (Annexure P-1). After the order of the Joint Registrar dated 28.1.2022, the petitioner approached the Madhya Pradesh Cooperative Tribunal in terms of Section 78 of the Act of 1960 along with an application filed under Section 5 of the Limitation Act. The Tribunal, while dealing with the application filed under Section 5 of the Limitation Act, vide impugned order dated 26.4.2023 (Annexure P/12), has dismissed the appeal being barred by limitation and also on the ground that the appeal was not filed by the Managing Director in terms of Section 49-A(1) H of the Act of 1960 as well as Clause 47 (2) of byelaws of Society as the Managing Director was empowered to file the appeal but the appeal was filed by the Assistant General Manager (Karmik) Societies General Manager (Karmik). Thus assailing the order passed by the Joint Registrar as well as Tribunal this petition is filed.

4. Counsel contends that while passing the impugned order the Tribunal has failed to appreciate that against the order dated 24.12.2019 suo motu powers of revision were exercised, which ultimately ensued in passing of an order dated 28.1.2022 and certified copy of order was made available to the Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 9/14/2023 12:31:48 PM 7 petitioner on 2.2.2022 and thereafter on 25.2.2022 the appeal was filed. Therefore, while appreciating the provisions of 78 A of 1960, the application filed under Section 5 of Limitation Act ought to have been allowed. It is further contended by the Counsel for the petitioner that Tribunal had only dealt with an application under Section 5 of Limitation Act but at no point of time there was any objection regarding maintainability of an appeal at the instance of an officer other than the Managing Director of the Society and it is, therefore, contended by the counsel that a hyper technical approach has been taken recourse to by the Tribunal while dismissing petitioner's appeal. Thus, while placing reliance on the decision of Apex Court in Sridevi Datla v. Union of India and others [(2021) 5 SCC 321], the Counsel submits that there should have been a liberal approach which ought to have taken recourse to while dealing with the application for condonation of delay particularly when the reasons for delay were satisfactorily explained by the petitioner. The counsel has also placed reliance on the decision of Apex Court in Sidhartha Sarawgi v. board of Trustees for the Port of Kolkata and others and Universal Autocrafts Private Limited and another v. Board of Trustees for the Port of Kolkata and others [(2014) 16 SCC 248] and submits that for the day to day functioning of the Society, the Managing Director can delegate the power and, therefore, in the present case only an authorization was in favour of the Assistant General Manager to file an appeal and there was no infirmity or perversity with the same. Thus counsel submits that the petition deserves to be allowed.

5. Per contra, counsel for the respondents submits that a perusal of order dated 24.12.2019 passed by the Joint Registrar reflects that as the matter on earlier occasion had travelled up to the Apex Court and Apex Court having Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 9/14/2023 12:31:48 PM 8 conclusively decided the controversy, there was no scope to entertain the appeal which was filed at the behest of the present petitioner and the Tribunal rightly dismissed the appeal as the same was barred by limitation and secondly the powers which are delegated to the Managing Director in terms of Section 49 of the Act of 1960 could not have been further deleted to subordinate authority. Therefore, counsel submits that as the issue has already been conclusively decided which is evident from the perusal of the order passed by the Joint Registrar, no interference is warranted.

6. No other point is expressed by the parties.

7. Heard the submissions and perused the record.

8. A perusal of the record reflects that it is the second round of litigation. Initially, Joint Registrar passed an order, which was subjected to challenge before the various authorities and ultimately travelled up to the Apex Court. The crucial order of Joint Registrar was set aside and the matter was remitted back to the Joint Registrar by the Tribunal by passing the order contained in Annexure P-3. As the order of Tribunal (Annexure P-3) has remained affirmed and has not been disturbed even by the Apex Court, the Joint Registrar passed an order afresh on 24.11.2019 in terms of the order passed by the Tribunal on earlier occasion dated 29.3.2006 contained in Annexure P-3. The order passed by the Joint Registrar was subject matter of suo motu revision. The suo motu revision was also dismissed on 28.1.2022 and as per the stand of the petitioner after obtaining the certified copy of the order dt. 28.1.2022 which was made available to the petitioner on 2.2.2022, an appeal was preferred before the M.P. State Cooperative Tribunal on 25.2.2022 supported by an application filed under Section 5 of the Limitation Act. The Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 9/14/2023 12:31:48 PM 9 Tribunal while dealing with the said application has dismissed the appeal not only on the ground of limitation but also on the ground of maintainability as the same was not filed by the person who is empowered in terms of Section 49 of the Act of 1960 to prefer such an appeal.

9. To deal with the order impugned first it is apposite to deal with the provisions of Section 78-A of the Cooperative Societies Act, 1960 which are reproduced herein :

"78-A. Extension of period of limitation by appellate authority in certain cases.- In all cases in which it is provided under this Act that an appeal may be filed against any decision or order within a specified period, the appellate authority may admit an appeal after the expiry of such period if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within such period."

10. A perusal of the aforesaid reflects that in terms of Section 78-A of the Act of 1960 the Tribunal is empowered to deal with an application for condonation of delay. In the present case, the order of Joint Registrar dated 24.12.2019 as was initially subject matter of a suo motu revision which was decided on 28.1.2022. Certified copy of the same was made available to the petitioner on 2.2.2022 and after obtaining the said certified copy the appeal before the Tribunal was filed on 25.2.2022. Therefore, in the considered view of this Court the delay was satisfactorily explained by the petitioner before the Tribunal. Even otherwise the Rules of limitation are not meant to destroy the substantive rights of parties and unless the parties concerned take recourse to dilatory tactics. The Apex Court in N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123] held in paragraphs 9, 10, and 11 as under:

Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 9/14/2023 12:31:48 PM 10

9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.

10. The reason for such a different stance is thus:

The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.

11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury.

The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered.

Time is precious and wasted time would never revisit.

During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 9/14/2023 12:31:48 PM 11 by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation).

Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."

11. Therefore, the Tribunal grossly erred in dismissing the application under Section 5 of the Limitation Act. So far as other ground on which the Tribunal has declined the interference is as regards the authority of the person who had filed affidavit in support of the appeal as well as application is concerned, a perusal of the order reflects that the Tribunal has taken recourse to provisions of Rule 49 A of the M.P. Cooperative Societies Rules, 1962. Rule 49-A(1)(h) provides as under:

"49-A.Powers and duties of the Chief Executive Officer of State aided society.-(1)The Chief Executive officer of an Apex or central society appointed under clause (1) read with clause (c) of sub-section (1) or clause (b) of sub-section (2) of section 49-E shall perform duties and exercise powers given below, namely-

(h) to institute, conduct, defend, compound or abandon any suit or other legal proceedings by or against the society or otherwise concerning the affairs of the society and also to compound and allow time for payment or satisfaction of any claims or demand by or against the society in accordance with the decisions of the committee;

12. A perusal of the aforesaid reflects that the same provides that Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 9/14/2023 12:31:48 PM 12 Managing Director has been entrusted to institute, conduct, defend, compound or abandon any suit or other legal proceedings by or against the society. It is, therefore, evident from the perusal of Rule 49-A of 1960 Act that the Managing Director has been entrusted with certain powers including the power to sue or to defend in the eventuality when the society is sued. This Court finds force in the argument of the petitioner that in the light of the law laid down by the Apex Court in the Case of Siddharth Sarawgi (supra), practical necessities or exigencies of administration require that the decision-making authority who has b een conferred with statutory power, be able to delegate tasks when the situation so requires. The Apex Court has held in paragraph 7 as under.

"7. Practical necessities or exigencies of administration require that the decision-making authority who has been conferred with statutory power, be able to delegate tasks when the situation so requires. Thus, the maxim delegatus non potest delegare, gives way in the performance of administrative or ministerial tasks by subordinate authorities in furtherance of the exercise of the delegated power by an authority."

Therefore, the other ground on which the appeal has been dismissed is also hyper technical in the considered opinion of this Court.

13. Therefore, taking into consideration the aforesaid analysis this Court is of the considered view that the Tribunal fell in error while passing the impugned order dated 26.4.2023 Annexure P-12. Accordingly the order impugned dated 26.4.2023 contained in Annexure P-12 passed by the Tribunal is set aside. The matter is remitted back to the Tribunal to decide the appeal afresh on merit, as expeditiously as possible, preferably within 90 days from the production of certified copy of this order.

Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 9/14/2023 12:31:48 PM 13

14. With the aforesaid the petition stands disposed of.

(MANINDER S. BHATTI) JUDGE vivek Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 9/14/2023 12:31:48 PM

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