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2002 DIGILAW 1399 (RAJ)

Jagdish Chand v. Regional Audit Officer

2002-08-08

H.R.PANWAR, N.N.MATHUR

body2002
Honble MATHUR, J.–This special appeal is directed against the order of the learned Single Judge dated 27.08.2001 dismissing the writ petition. (2). Briefly stated the facts of the case are that appellant-writ petitioner (hereinafter referred to as ``the appellant) was cashier in the factory of Raisinghnagar Kraya Vikraya Sahakari Samiti Limited. The third respondent Sohanlal was the Manager of the said factory. On the basis of audit report of 1986-87, an enquiry was conducted by the Regional Audit Officer against the appellant Jagdish Chand and Sohanlal. He found the appellant guilty for making certain unauthorised payments to the contractors. He Was held liable for a loss of Rs.31,101/-. He was also directed to pay Rs.500/- against the charges for proceedings. Against the said order of Regional Audit Officer dated 26.06.1989, the appellant preferred an appeal before the Additional Registrar (Appeals), Co-operative Societies, Jodhpur. The appeal was found to be barred by limitation. An application under Section 5 of the Limitation Act for condonation of delay was also submitted by the appellant. According to the appellant, the decision of the Regional Audit Officer came to his knowledge only on 24.08.1991 and he filed the appeal on 26.08.1991 and, therefore, the appeal was within the limitation. This was not accepted by the Additional Registrar (Appeals), Co-operative Societies, Jodhpur..The appellate court found that order-sheet dated 26.06.1989 bears, the signature of the appellant and, therefore, it cannot be denied that he had the knowledge of the judgment against him. Thus, according to the appellate court, the plea that he came to know about the judgment only on 24.08.1991 was not correct. The appellate court rejected the appeal by order dated 27.02.1992 as barred by limitation. The appellant approached this court by way of writ petition under Article 228 of the Constitution of India. The learned Single Judge dismissed the appellants writ petition by order dated 27.08.2001 (3). It is contended by Mr.Sudhir Sharma, learned counsel for the appellant that learned Single Judge has failed to consider that in view of the provisions of Rule 74(8) of Rajasthan Co-operative Societies Rules, 1966 it was obligatory on the part of Regional Audit Officer to supply a copy of the judgment to the appellant. The copy of the judgment was supply to the appellant only on 24.08.1991. He has supported this fact from the Annexure-4 dated 24.08.1991. The copy of the judgment was supply to the appellant only on 24.08.1991. He has supported this fact from the Annexure-4 dated 24.08.1991. It is a letter from Raisinghnagar Kraya Vikraya Sahakari, Samiti Limited wherein it is clearly mentioned that the copy of the judgment was made available to the appellant on 24.08.1991. On the other hand, it is submitted by the learned counsel for the respondents that in view of the Section 124(2) of the Rajasthan Co-operative Societies Act, 1965 the appeal could be submitted only within 60 days from the date of the order. Thus, according to the learned counsel, the date of delivery of the copy of judgment is of no relevance. (4). We have considered the rival contentions. Sub-section (1) of Section 124 provides for an appeal against such orders or decisions which are mentioned in clause (a) to (m) of the said sub-section. By sub-section (2) of Section 124, the form of appeal is specified as, either before the State Government or the Registrar. The limitation for filing the appeal is 60 days from the date of the decision or order. Thus, on a plain reading of Section 124(2), the limitation of 60 days is to be computed from the date of the order or decision. However, at this stage, it is relevant to refer Rule 74 which provides procedure for assessing surcharge under Section 74. Sub-rule (6) provides that person authorised shall hear the argument and may pass his final order on the same day or on any date fixed by him. Sub-rule (8) castes a duty on the person or, the Registrar to furnish a copy of the order, under sub-rule (6) to the party concerned within ten days of the date on which he makes the final order. Thus, sub-rule (8) castes an obligatory duty to supply a copy of the judgment to the appellant. (5). In the instant case, it is submitted by the learned Counsel for the respondents -that a copy of the judgment was dispatched by the respondents on 01.07.1989. In order to substantiate the said fact, a xerox copy of the outward register has -been produced as Annexure-R/1. The register indicates that the order was dispatched to the appellant on 01.07.1989. However, there is no evidence to show that judgment was infact delivered to the appellant. In order to substantiate the said fact, a xerox copy of the outward register has -been produced as Annexure-R/1. The register indicates that the order was dispatched to the appellant on 01.07.1989. However, there is no evidence to show that judgment was infact delivered to the appellant. On the contrary, the document Annexure-4 clearly speaks that the copy of the judgment was first time delivered to the appellant on 24.08.1991. Thus, in the matter of calculation of the limitation for filing the appeal under Section 124(1), the period between date of the actual delivery and the date of delivery of the judgment will have to be excluded. Thus, if the said period is excluded, then the limitation is to be computed from the date of delivery of the judgment to the appellant. The appeal was presented on 26.08.1991. Thus, the appeal has been presented within the limitation. Ordinarily, in absence of provision like 74(8), the the signature of the appellant on the order-sheets on the date of delivery of the judgment could be attributed as date of knowledge of the order. However, in a case where there. is statutory obligation on an authority for supplying the order, the date of knowledge becomes irrelevant. It appears that the provision of sub-section (8) of Section 74 was not brought to the notice of the learned Single Judge which has led to a wrong conclusion. Thus, in our view, the Additional Registrar (Appeals) has committed error in rejecting the appeal only on the ground of limitation. (6). Consequently, the appeal is allowed. The judgment of the learned Single Judge dated 27.08.2001 is set aside, Similarly, the order of the Additional Registrar (Appeals), Co- operative Societies, Jodhpur dated 27.02.1992 is also set aside. The matter is remanded to the court of Additional Registrar (Appeals), Co-operative Societies, Jodhpur for fresh decision on merits. The additional Registrar (Appeals) shall register the appeal and post the case for final hearing and decide the same afresh on the merits after hearing the concerned parties. The appellant and the respondents shall appear personally or through their counsel before the Additional Registrar (Appeals), Co- operative Societies, Jodhpur on 16.09.2002. No order as to costs.