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2014 DIGILAW 188 (RAJ)

Managing Committee Agarwal College, Jaipur v. Rajasthan Non-Government Educational Institutions

2014-01-13

ALOK SHARMA

body2014
JUDGMENT : Alok Sharma, J. The petition has been filed against the order dated 03.02.2005 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (hereinafter the Tribunal) whereby an application under Section 5 of the Limitation Act, 1963 (hereinafter the 1963 Act) as also the application under Order 9 Rule 13 CPC filed by the petitioner Managing Committee Agrawal College (hereinafter 'the petitioner Committee') seeking to impugn the ex-parte order dated 16.04.1999 has been dismissed. 2. The facts of the case that the respondent No.2- applicant Ghanshyam (hereinafter 'the applicant') filed an appeal under Section 19 of the Rajasthan Non-Government Educational Institutions Act, 1989 (hereinafter 1989 Act') before the Tribunal on 13.07.1998 challenging his verbal termination dated 01.06.1998 by the Principal Agrawal College. In the array of parties, the Agrawal College, through Manager Agrawal College, Managing Committee Jaipur as also director of the College Education were impleaded as non-applicants. It appears from the record that notices on the appeal were served by registered post AD on 21.07.1998 on the non applicant Agrawal College and acknowledgement due received back at the Tribunal. None however appeared on behalf of the non-applicant Agrawal College. Consequently on consideration of evidence laid by the applicant Ghanshyam arguments were heard on 07.04.1999 and vide order dated 16.04.1999 the learned Tribunal set aside the verbal termination order of the applicant on 01.06.1998. The College was directed to reinstate the applicant Ghanshyam back in service with all consequential benefits. 3. An application under Order 9 Rule 13 CPC came to be filed on 16.09.1999 for setting aside the exparte order dated 16.04.1999 passed by the Tribunal. An application under Section 5 of the Limitation Act seeking condonation of delay in approaching the Tribunal for setting aside the exparte order dated 16.04.1999 was also filed. It was stated that notice on appeal under Section 19 of the 1989 Act was not received by the Secretary of the Managing Committee of the petitioner Agrawal college and only in May, 1999 a registered letter was received by the petitioner Agrawal College from the applicant Ghanshyam detailing the factum of ex-parte order dated 16.04.1999 and his reinstatement with consequential benefits. It was stated that the entire proceedings before the Tribunal leading to the ex-parte order dated 16.04.1999 were thus vitiated on grounds of denial of natural justice. It was stated that the entire proceedings before the Tribunal leading to the ex-parte order dated 16.04.1999 were thus vitiated on grounds of denial of natural justice. The contention was that no post of a Manager of the Agrawal College Managing Committee, existed and hence the purported service even by a registered letter on such Manager was no service in the eye of law. It was further stated that after the letter of May, 1999 from the applicant Ghanshyam was received by the College, informing it of his order of reinstatement passed on 16.04.1999 the petitioner college could not earlier approach the Tribunal as annual examinations were underway. Consequently, the consideration of the ex-parte order dated 16.04.1999 was kept in abeyance. Subsequent to conclusion of the annual examinations the matter was considered and a decision was taken that as the applicant Ghanshyam was not even an employee of the petitioner Agrawal College, but an employee of Agrawal Day College proceedings against the Agrawal College culminating in the Tribunal's order of 16.04.1999 should be put to challenge. It was further submitted that no order of termination of service of the applicant Ghanshyam had been passed on 01.06.1998 or otherwise. Instead the applicant himself abandoned service on 01.06.1998 and in spite of a notice dated 25.06.1998 did not comply therewith and return to work. It was submitted that after inspection of the file of the Tribunal a certified copy of the order dated 16.04.1999 was obtained on 30.08.1999. It was prayed that in the circumstances of the case and in the interest of justice the delay in filing the Order 9 Rule 13 CPC application on 16.09.1999 be condoned under Section 5 of the Limitation Act, 1963 and the impugned order dated 16.04.1999 be recalled. It was prayed that the matter be heard afresh on merits, such that the non-applicant College be put in a position to set up its defence to the wholly frivolous application under Section 19 of the 1989 Act filed by the applicant Ghanshyam. 4. The learned Tribunal vide its order dated 03.02.2005 however found against the non-applicant Agrawal College both in respect of the application for condonation of delay under Section 5 of the Limitation Act as also the merits of the application under Order 9 Rule 13 CPC itself. 4. The learned Tribunal vide its order dated 03.02.2005 however found against the non-applicant Agrawal College both in respect of the application for condonation of delay under Section 5 of the Limitation Act as also the merits of the application under Order 9 Rule 13 CPC itself. The learned Tribunal has noted that from its record it was apparent that the non-applicant Agrawal College was served by registered post on 21.07.1998 and acknowledgement of receipt obtained. The Tribunal concluded that the submission of the non-applicant College that there was no post in the College designated as Manager of the Managing Committee was specious in view of the proviso to Order 9 Rule 13 CPC which states that no court shall set aside a decree passed ex-parte merely on the ground that there had been an irregularity in the service of summons, if the court was satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. The learned Tribunal held that the registered notice of the application under Section 19 of the 1989 Act filed by the applicant was served on non-applicant college on 21.07.1998, and with the acknowledgement due have been received back it was proof of service and it was of little significance that instead of 'Secretary' the word 'Manager' had been written on the address which was otherwise complete. Thereafter the matter was adjourned on various occasions upto 07.04.1999 when the arguments were heard. All along the non-applicant college had adequate opportunity to appear and file its return before the Tribunal and contest the case on merits. This was however not done. Consequently on 16.04.1999 the ex-parte order was passed by the Tribunal. Aside of the lack of any sufficient cause which prevented the non-applicant college before the Tribunal from contesting the case on merits in spite of service of notice on applicant's application on 21.07.1998, the learned Tribunal found that even otherwise on the admission of non-applicant college itself it had came to know of the ex-parte order dated 16.04.1999 in May, 1999. Yet the application under Order 9 Rule 13 CPC was filed only on 16.09.1999, after a delay beyond the limitation of ninety days. Yet the application under Order 9 Rule 13 CPC was filed only on 16.09.1999, after a delay beyond the limitation of ninety days. Adverting to the application under Section 5 of the 1963 Act, (earned Tribunal found that the reasons advanced for moving the application under Order 9 Rule 13 CPC beyond the period of (imitation were not sustainable, inasmuch as the College in spite of receipt of notice in the month of May, 1999 informing it of exparte order dated 16.04.1999, did not take steps within the period of limitation on the ground that annual examinations were underway. The learned Tribunal held that the circumstances adverted to by the non-applicant college for resorting to a belated application under Order 9 Rule 13 CPC could not come within the 'sufficient cause' warranting condonation of delay under Section 5 of the 1963 Act. The learned Tribunal therefore dismissed the application for condonation of delay under Section 5 of the 1963 Act. So was consequently dismissed the application under Order 9 Rule 13 CPC also. 5. Heard learned counsel for the parties and perused the impugned order. 6. In my considered opinion, there is no illegality or perversity in the impugned order dated 03.02.2005 passed by the Tribunal dismissing the application for condonation of delay under Section 5 of the Limitation Act as also the application under Order 9 Rule 13 CPC. Section 27 of the General Clauses Act provides for presumption of service when a letter is sent by registered post to the correct address of the addressee, it is not in dispute that notice on the applicant's appeal under Section 19 of the 1989 Act were sent by registered post to the correct address of the non-applicant College and was duly received by it on 21.07.1998, as evident from acknowledge due receipt received by the Tribunal. Argument of the non-applicant college to escape the consequence of valid service was palpably specious in submitting that because the word 'Manager' was used in the notice sent by registered post, service was vitiated. The argument overlooks the proviso to Order 9 Rule 13 CPC which states that mere irregularity in service of summons would be not sufficient when the concerned court finds that the party served the notice of the proceedings before it had knowledge of the proceedings and sufficient time to respond thereto. The argument overlooks the proviso to Order 9 Rule 13 CPC which states that mere irregularity in service of summons would be not sufficient when the concerned court finds that the party served the notice of the proceedings before it had knowledge of the proceedings and sufficient time to respond thereto. In my considered opinion, merely because instead of the word 'Secretary' (Managing Committee) the word 'Manager' (Managing Committee) was reflected in the address which was otherwise complete it would not be sufficient to hold that the non-applicant college was not served - more particularly when the notices sent by registered post were not returned unserved but the AD duly signed was received by the Tribunal. The defence of the non-applicant college, about non receipt of notice, to my mind was thus not only fragile but in fact dishonest. In my considered opinion, the provisions of Order 9 Rule 13 CPC as sought to be agitated by the non-applicant college on account of allegedly not being 'duly served' did not attract to the facts obtaining in the case. Aside of that, I am also of the considered view that the learned Tribunal has rightly held that the application under Section 5 of the 1963 Act seeking condonation of the delay in filing the application under Order 9 Rule 13 CPC did not make out 'sufficient cause' and was liable to be dismissed. From the facts on record, it is an admitted fact that the college had notice of the ex-parte order dated 16.04.1999 passed by the Tribunal in May, 1999. Assuming even 30.05.1999, the application for setting aside the exparte order dated 16.04.1999 ought to have been filed within ninety days from 30.05.1999, Yet the college did not do so. The 'sufficient cause' preferred for seeking condonation of delay was engagement of the college in annual examinations, and thereafter in the consultative process. To my mind the reasons advanced by the college for the condonation of delay in filing the application under Order 9 Rule 13 CPC were wholly insufficient. Judicial process and compliance with the order of the courts/Tribunals are fundamental to a society governed by the Rule of Law. Cavalier approach to the orders of the court/ Tribunals cannot be countenanced. To my mind the reasons advanced by the college for the condonation of delay in filing the application under Order 9 Rule 13 CPC were wholly insufficient. Judicial process and compliance with the order of the courts/Tribunals are fundamental to a society governed by the Rule of Law. Cavalier approach to the orders of the court/ Tribunals cannot be countenanced. It was incumbent upon the college, immediately on coming to know of the exparte order dated 16.04.1999 passed by the Tribunal, to take steps for availing its remedy there against. Consequence of a leisurely approach with limitation in the meantime running out, have of necessity to be to the account of the non-applicant college. Any other view, would only dilute the efficacy of judicial process and judicial orders lawfully passed. In any event, the discretion to condone the delay under Section 5 of the 1963 Act was that of the Tribunal. To my mind the said discretion having been exercised reasonably by the Tribunal in the facts of the case, there is no occasion whatsoever for this court merely by virtue of being the superior court, to interfere therewith under its supervisory powers relatable to Article 227 of the Constitution of India. Further, putting the clock 14 years back would now in 2014, be extremely prejudicial to the applicant employee. Consequently, I find no force in the petition and the same is dismissed.