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2008 DIGILAW 386 (JK)

J&K Co-operative Supply & Mktg. Fed. Ltd. , Jammu v. Pritam Singh

2008-10-15

Vinod Gupta

body2008
1. This batch of four revision petitions have been filed by petitioner Jammu and Kashmir Cooperative Supply and Marketing Federation Ltd., (JAKFED) against the orders dated 11.3.2006, passed by the Registrar, Cooperative Societies, J&K, Jammu. All these petitions are taken up jointly because the facts of these cases are identical and similar point involves in all the petitions. 2. The material facts giving rise to filing of these revision petitions are that the respondents are employees of petitioners Federation and were working as Store Keepers in different stores of petitioners Federation at different period. During the period the respondents alongwith other Store keepers worked as store keepers, Audit team found shortages of food grain of varying amount in different stores of petitioner Federation. Accordingly show cause notices were served upon the respondents and others involved store keepers to make good the amount of shortages projected by the Audit party. Respondents and others failed to comply with these notices and accordingly arbitration proceedings were initiated against them. In case of Respondents Mohan Singh and Pritam Singh arbitration proceedings were conducted by the Additional Registrar, Cooperative Societies, Jammu, who vide order dated 17.12.2003 directed the petitioner Federation to recover the shortages amount from the respondents after allowing the shortages permissible under the norms fixed by the Managing Authority of the petitioner Federation. Aggrieved by this orders, the respondents Mohan Singh and Pritam Singh preferred appeals before the Registrar Cooperative Societies Jammu under the provisions of J&K Cooperative Societies Act 1989. The arbitration proceedings against respondents Prem Kumar and Sudesh Kumar were conducted by the Registrar Cooperative Societies J&K, Jammu. 3. The Learned Registrar Cooperative Societies, J&K Jammu, vide orders dated 01.03.2006 in appeals before him and in arbitration proceedings came to the conclusion that the issue involved in these cases is covered by the order of that Court dated 28.2.2002 passed in cases titled Vijay Kumar and Ors. Vs. JAKFED, Jammu which was duly upheld upto the Honble High Court, as such he disposed of these cases in terms of that order. 4. Not satisfied with the orders of Learned Registrar Cooperative Societies, J&K, Jammu, the petitioner assailed the impugned orders of the Learned Registrar dated 11.3.2006 through the medium of these revision petitions before this Tribunal on the ground that the principles of allowing shortages laid down in cases of Vijay Kumar and Ors. 4. Not satisfied with the orders of Learned Registrar Cooperative Societies, J&K, Jammu, the petitioner assailed the impugned orders of the Learned Registrar dated 11.3.2006 through the medium of these revision petitions before this Tribunal on the ground that the principles of allowing shortages laid down in cases of Vijay Kumar and Ors. is applicable to those cases only and benefit cannot be extended to the respondents herein also under those orders. 5. I have heard the Learned counsel for the parties and have perused the record on the file. 6. Mr. C.M.Gupta, Advocate appearing for the petitioner, has argued that the shortages allowed by the Learned Registrar under the guidelines issued in Vijay Kumar case cannot be applied in these cases also. He has further argued that the Registrar wrongly entertained the appeals of Mohan Singh and Pritam Singh after lapse of period of limitation and there is no provision for condonation of delay caused in filing appeal under the provisions of J&K Cooperative Societies Act 1989 or Act of 1960. Mr. B.B. Kotwal, Advocate appearing for respondents, on the other hand, has argued that the shortages were detected from the year 1983 from number of store keepers including the respondents and this was a continued process. The Learned Registrar after scrutinizing the different Schemes, Rules and norms of other agencies including Food Corporation of India passed an order for the entitlement of permissible shortages in case of other store keepers namely Vijay Kumar and Ors. and the revision filed by the petitioner before this Tribunal was also dismissed. The petitioner also challenged unsuccessfully this order in the Honble High Court in a writ petition and then in LPA. Thus the respondents are also entitled the shortages to that extent. He has further argued that no point of limitation was raised before the Learned Registrar nor in this revision petition. This has been raised for the first time during the course of arguments by the petitioner. 7. This Tribunal while deciding a revision petition has to exercise its power within its jurisdiction and parameter of law. This power can be exercised when there is failure to exercise jurisdiction by lower authorities or to exercise jurisdiction not vested in it or if the order of the court below is vitiated on the ground of illegality or impropriety. 7. This Tribunal while deciding a revision petition has to exercise its power within its jurisdiction and parameter of law. This power can be exercised when there is failure to exercise jurisdiction by lower authorities or to exercise jurisdiction not vested in it or if the order of the court below is vitiated on the ground of illegality or impropriety. In present case, the question arises is as to whether the benefit of shortages allowed by the Learned Registrar vide its order dated 11.03.2006 after applying certain norms is proper or not. 8. In Vijay Kumar and Ors. cases 7 persons(store keepers) of petitioner Federation were involved for the shortages of varying amount. The Learned Additional Registrar, Cooperative Societies, Jammu while passing the award in arbitration proceedings directed the petitioner Federation to recover the shortages amount from them after allowing the shortages as per norms fixed by the petitioner Federation . The Learned Registrar, Cooperative Societies, J&K, Jammu vide order dated 28.2.2002 after examining the different norms for shortages of grain in stores occurring due to natural causes i.e. dryages, infestation by rats and rodents and picking up of food grains by the birds etc. and norms of other institutions including Food Corporation of India, allowed the shortages on account of various causes at the rate of 3.56 kg. per Qtls. instead of 3.5 kg. per Qtls., as allowed by the arbitrator in his award. This order was challenged in a revision before this Tribunal and the Learned Chairman of this Tribunal vide order dated 4.6.2000 dismissed that revision petition on the ground that the order of Registrar is proper. The petitioner Federation thereafter challenged the order before the Honble High Court by way of writ which was dismissed on the ground that the Learned Chairman has advanced very good and sound reasons for upholding the order of the Registrar. It was further held that the question of shortages depends upon the facts and circumstances of each case and no set rules can be applied universally to all the cases. The petitioner Federation has thereafter preferred LPA before the Honble DB of High Court which was also dismissed on 11.06.2004. 9. The main argument of the Learned Counsel for the petitioner is that the shortages of food grains allowed under the order passed by the Learned Registrar in Vijay Kumar and Ors. The petitioner Federation has thereafter preferred LPA before the Honble DB of High Court which was also dismissed on 11.06.2004. 9. The main argument of the Learned Counsel for the petitioner is that the shortages of food grains allowed under the order passed by the Learned Registrar in Vijay Kumar and Ors. case was in a particular case and it cannot be applied universally in all other cases. On the other hands, the Learned counsel for the respondents has argued that the respondents herein and Vijay Kumar and Ors were similarly placed and the shortages process was a continued process from the year 1983 onwards as such they should not be any discrimination between different store keeper placed in similar situation. He further argued that this point does not raise any substantial legal point as such the petition is not maintainable. 10. The Learned Chairman while disposing of the revision petition of Vijay Kumar and Ors. on 4.6.2003 observed as under:- I have perused the relevant record and carefully considered the arguments led by parties including the written arguments filed by the petitioner. Occurrence of some shortages in handling of food grains and fertilizers etc. are not a subject matter of dispute. The actual quantum of shortage is dependent on how scientific the storage and handling mechanism is in a particular organization. Shortage is also a function of time and of the storage environment. In a scientific storage system it may be possible to scientifically work out norms of shortages due to dryages/loss of moisture. In a non scientific storage where birds and rodents have part of their share, no scientific assessment can be done. Therefore the actual shortages can be worked out in a non scientific storage system, as in the case of JAKFED by physical verification of stocks at frequent intervals. The Jakfed will be having a lock and key system of storage and admittedly the management have not filed cases of embezzlement against the store keeps/respondents 2 to 8 in these cases of shortages. In such a situation, application of any book norm for allowing shortages would be impractical and injudicious. It is presumed that the two successive Registrars have looked into all the relevant aspects applicable to the present case and worked out shortages (3.5 kgs and 3.560 kgs) which are quite near to each other. I have no reason to reject their findings. It is presumed that the two successive Registrars have looked into all the relevant aspects applicable to the present case and worked out shortages (3.5 kgs and 3.560 kgs) which are quite near to each other. I have no reason to reject their findings. The petitioner/management of JAKFED has not come out with their own alternative formulation on this subject which would take care of actual losses in storage including loss by rodents and birds etc as also likely variation of weight at the time of receiving of stocks and issue of stocks in a logical manner. Similarly the Registrar Cooperative Societies was within his competence to pass a consequential order in respect of suspension period of the employees on e he gave out his findings in the matter of regulation of quantum of shortage. This was to be done as a natural corollary as well as in compliance to order of this Tribunal issued in 1992. 11. In the instant cases, the respondents herein are also similarly placed and there is no bar legal or otherwise in applying same guidelines for allowing shortages as laid down in Vijay Kumars case. The facts and circumstances of cases of respondents herein are similar to the cases of Vijay Kumar and others. Rather this a continuous chain and shortages occurred in a period of more than ten years when different store keepers were Incharge of different stores of petitioner Federation. The respondents shall be discriminated in case same yardstick is not applied in these cases as well. For the reasons stated above in earlier case, I would hold that impugned orders of Registrar are proper. 12. Further also the dispute or controversy raised in these cases is not a legal point but is a matter of facts, as such no interference is required. Also the impugned orders are perfectly legal proper and do not suffer from any infirmity. Also this is not a case where there is wrong exercise of jurisdiction by the Registrar, Cooperative Societies, J&K, Jammu. 13. The Learned counsel for the petitioner has also argued that in cases of Mohan Singh and Pritam Singh, the Learned Registrar entertained time barred appeals. He could not do so, as such the order is bad. In support he has relied upon SLJ 1982 J&K page 198. 13. The Learned counsel for the petitioner has also argued that in cases of Mohan Singh and Pritam Singh, the Learned Registrar entertained time barred appeals. He could not do so, as such the order is bad. In support he has relied upon SLJ 1982 J&K page 198. In this case, it was held that Section 5 of the Limitation Act is attracted when specifically made applicable to any suit, appeal or application by special or local law prescribing limitation for the same. In present case, it is stated that Section 5 has not been made applicable to the provisions of J&K Cooperative Societies Act, 1989 and as such the delay caused in filing the appeal cannot be even condoned by the appellate authority. The Learned counsel for the respondent argued that this point was not raised by the Learned counsel for the petitioner at the earlier stage. He has further argued that in order to advance justice, such type of plea was not to be considered at this stage. In support he has relied upon 1998 AIR SCW 3139 and 2007 KLJ 81. In earlier judgment, it was held that the order of condonation of delay of 883 days in filing the appeal was due to failure of advocate to inform appellant as well as his failure to take action and this was proper satisfaction of trial court. In latter case our own Honble High Court has held that while dealing with the matters coming up before the court for adjudication, regard needs to be had to the real dispute between the parties and every effort is required to be made by the court to ensure that real justice was imparted to the parties by resolving their contentious issues. It is a settled proposition that in quassi judicial proceedings the Authority, Courts and Tribunal shall be liberal in entertaining time barred appeals for the cause of justice by resolving the dispute between the parties on merits instead of defeating justice on technical ground. 14. In the instant case, from the perusal of the record, it appears that the plea in respect of non-maintainability of application of Section 5 was never raised by the petitioners herein in its objections filed before the Registrar against the main appeal or against the application for condonation of delay. Application was never resisted on this point. 14. In the instant case, from the perusal of the record, it appears that the plea in respect of non-maintainability of application of Section 5 was never raised by the petitioners herein in its objections filed before the Registrar against the main appeal or against the application for condonation of delay. Application was never resisted on this point. Even this plea was not raised during the course of arguments. Also in the revision petition filed before this Tribunal, the petitioner has not raised this point. This was for the first time raised during the course of arguments. Any point which was not raised earlier, cannot be allowed to raise for the first time in this revision petition during course of arguments under the grab of law point. This point is a mixed question of law and facts and the revisional court cannot consider the factual points in the revision petition. If the delay caused in filing appeal has been condoned and the other party did not contest the same, this cannot be raised for the first time before revisional court. 15. For the fore-going reasons, I would held that the orders passed by the Registrar, Cooperative Societies, J&K Jammu are legal and proper and do not suffer from any infirmity. Accordingly I would hold that there is no merit for interference with the impugned orders dated 11.03.2006 passed by the Learned Registrar, Cooperative Societies, J&K, Jammu. Accordingly these petitions are dismissed. 16. Let a copy of this order be placed on each file. Record of the court below be sent back and files of this Tribunal be consigned to record after due completion.