DISTT CO OP CENTRAL BANK LTD Vs. PRABHULAL

JUDGEMENT

(1.) BEING aggrieved of the orders passed by the Joint Registrar, Cooperative Societies, Jabalpur in appeal No. 77/90-98 order dated 24.4.99. the appellant bank has preferred this second appeal under the following circumstances :

(2.) RESPONDENT was appointed as Peon in the appellant bank. On the basis of complaints of misappropriating the funds of the appellant bank, the respondent was placed under suspension on 3.1.97 and after conducting the domestic enquiry against the respondent he was removed from the services as per order dated 16.9.97. Respondent filed an appeal before the staff sub-committee on 22.11.97 and the same was rejected. There after he filed a dispute case under section 55(2) of the M.P. Cooperative Societies Act, for short hereinafter referred to as Act, before the Asstt. Registrar, Balaghat on 22.12.97, on the ground that the domestic enquiry was conducted against him in an ex-parte manner. He was not afforded any opportunity of hearing and defending himself. At the relevant time, his mental condition was not good and he was undergoing treatment. He has also deposited the amount of collection of bills and have not committed any defalcation. He was removed by the order of the Manager, who was also not competent authority under the rules to issue such orders. Learned Asstt. Registrar after hearing the parties passed the order in dispute case No. 15/97 on 21.8.98 and he held that the enquiry was not conducted in accordance with the rules and therefore the same was vitiated. He accordingly quashed the removal order and directed the appellant bank to take back the respondent in service with back wages from the date of his reinstatement. Appellant bank preferred first appeal against this order of the learned Asstt. Registrar and the same has also been dismissed by his impugned order dated 26.4.99. The appellant bank has now preferred this second appeal on the ground that the learned Courts below have failed to correctly appreciate the facts of the case. Respondent was issued notice by the enquiry officer, but he did not appear before him. After receipt of the enquiry report he was also issued a final show cause notice for personal hearing thrice, by registered post, by personal service and by publication in news paper. But he did not appear for the personal hearing. After considering the enquiry report he has been removed from the services. Enquiry was conducted in accordance with the procedure laid down under the rules. Along with this appeal the appellant bank has also filed an application under section 5 of the Limitation Act for condonation of delay.

(3.) ACCORDING to the appellant the copy of the impugned order of the Joint Registrar was received on 14.5.99. Because of pressure of heavy work' and transfer of Branch Manager the matter could not be considered and thus delay was caused in preferring the appeal. Present appeal was filed on 11.8.99 whereas the same should have been filed upto 13.6.99. Thus, there has been delay of about 2 months in filing the appeal. Appellant is a registered Cooperative Society and body Corporate. Its affairs are being managed by the several officials. In view of the principles of law laid down by the honourable Supreme Court Special Tahsildar, Land Acquisition, Kerala v. K. V. Ayisumma AIR 1996, SC 2750, State of Jammu & Kashmir v. Dr. Ashok Kumar Gupta AIR 1996, SC 2882, Collector Land Acquisition, Amant Nag and others v. Mrs. Katiji and others AIR 1987, SC 353, application submitted by the appellant is allowed and the delay in not filing the appeal within the prescribed period of limitation is hereby condoned. With regard to preliminary objection of the learned appellant counsel that the dispute case should have been filed by the respondent before the Dy.,Registrar within 30 days from the date of removal order. But the same was filed on 22.12.97 after more than 3 months and therefore it was time barred. In this connection the respondent in his dispute case has pleaded that after his removal order he submitted his representation to the staff sub-committee on 22.11.97 and the same was rejected and the respondent was informed of the same on 8.12.97. There after he filed the present dispute case within one month from the date of such intimation. Respondent is governed by the M.P. District Cooperative Central Bank Employees Service Condition Rules 1982. Rule 65 of the Rules provides for presentation of appeal. This rule does not prescribe any period of limitation. After rejection of his departmental appeal, the respondent filed the dispute case and thus it can not be held to be time barred. Secondly surprisingly enough this argument has been advanced against pleading of the appellant bank, who has not been pleaded anything in its written statement that the dispute case is time barred. In the absence of such pleading no issue was also framed by the learned Dy. Registrar. When there was no any pleading and objection in written statement by the appellant about the question of limitation, it does not lie in the,mouth of the appellant bank, to raise any objection about the limitation. Even otherwise, after rejection of his departmental appeal on 8.12.97, the present dispute case having been filed on 22.12.97 is within time. In this connection the learned respondent counsel has placed his reliance on a judgment reported in Rajendra Vipanan Sahakari Samiti Ltd., Baldevgarh v. Harcharan Kada 1994 RN 197, which supports this conclusion.