SYNDICATE BANK Vs. B MUNIRAJ

JUDGEMENT

(1.) THE first respondent herein was an employee of the petitioner-bank and his services were terminated by the General Manager by an order dated May 25, 1972. That order stated that if the first respondent so desired he might prefer an appeal against the order to the Custodian within thirty days from the date of serving of the order. Such an observation happened to be made in the order in view of the provisions contained in the Syndicate Bank Officers (Conditions of Service) Rules, 1966 (hereinafter referred to as the rules ). Rule 36 (g) of the rules specifically provides that--Every officer against whom disciplinary action has been taken is entitled to appeal to the Chairman/custodian in writing within 30 days of the receipt of the original order by him. Under these circumstances, the first respondent preferred an appeal to the Custodian and that appeal was dismissed on August 29, 1972, and the same was communicated to the first respondent on September 1, 1972. Thereafter, the first respondent preferred an appeal under Section 41 (2) of the Tamil Nadu Shops and Establishments Act, 1947 (hereinafter referred to as the Act), before the second respondent herein. There was some controversy as to whether the appeal petition was sent on September 21, 1972, at all; but the second respondent has held that it was so sent, and the same was not disputed before me. However, before the second respondent, the petitioner took up the stand that the appeal preferred by the first respondent was barred by limitation and that the second respondent ought not to condone the delay in the presentation of the appeal. The second respondent took the view that the first respondent preferred the appeal under Section 41 (2) of the Act after having exhausted the departmental appeal provided for in the Rules and that the appeal preferred on September 21, 1972, was within time with reference to the appellate order of the Custodian and even if there was any delay, that delay should be condoned in view of the fact that the first respondent preferred an appeal to the departmental officers and the question of the first respondent appealing to the second respondent would arise only if he did not get any relief from the departmental appellate-authority. It is to quash this order of the second respondent dated October 15, 1973, taking up the appeal of the first respondent for disposal on merits, the present writ petition has been filed.

(2.) MR. Sampathkumar, the learned Counsel for the petitioner, contend that the provision vesting a discretion in the appellate-authority to condone the delay, embodied in the proviso to Rule 9 (1) of the Madras Shops and Establishment Rules, 1948, is ultra vires of the statute. Rule 9 (1) of the Madras Shops and Establishments Rules, 1948, states-The Commissioner for Workmen's Compensation shall be the authority for the purpose: of hearing appeals under Subsection (2) of Section 41 and any such appeal shall be preferred by the person employed within thirty days from the date of service of the order terminating the services with the employer, such service to be deemed effective if carried out either personally or if that be not practicable, by pre-paid registered post to the last known address when the date of such service shall be deemed to be the date when the letter would arrive in ordinary course of post: Provided that an appeal may be admitted after the said period of thirty days if the appellant satisfied the appellate authority that he had sufficient cause for not preferring the appeal within that period. It is the validity of this proviso that was challenged before me.

(3.) BEFORE considering this question, I shall first consider the question whether the appeal preferred by the first respondent on September 21, 1972, before the second respondent was barred by limitation at all under the main part of Sub-rule (1) of Rule 9 of the Madras Shops and Establishments Rules, 1948. For this purpose, the question for consideration is what is the starting point of limitation?whether it is the date of communication of the order of the General Manager or the date of communication of the appellate order of Custodian. If the starring point of limitation is the date of service of the appellate order of the Custodian, then, the appeal preferred by the first respondent was admittedly within time. Only if the starting point of limitation is the date of the service of the order of the General Manager, the question of condonation of the delay will arise. Therefore, the first point to be considered is what is the starting point of limitation.