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Madhya Pradesh High Court · body

2016 DIGILAW 451 (MP)

Nihal Singh Jatav v. State of M. P.

2016-06-15

SHEEL NAGU

body2016
ORDER 1. The present petition under Article 226 of the Constitution of India assails the final order dated 17.3.2009 passed in Case No. 25/08-09/ Revision by the Additional Commissioner, Gwalior Division contained in P-1, whereby the revision filed by the respondent No.5 against the appellate order of SDO dated 25.10.2008, has been allowed and in the process, the appeal preferred by the petitioner before the SDO, which had been allowed, has been held to be time bared and thus rejected. 2. The factual matrix lying in the foundation of the case is that the petitioner was appointed as Panchayat Karmi on 25.1.1996 vide P-2 and the powers of Secretary were vested upon him vide P-3 dated 8.10.1998. Eventually, the petitioner was terminated on 14.5.2003 by a resolution of the Gram Panchayat which came to be challenged in Writ Petition No.1579/2003, which was allowed on 11.8.2003 vide P-4 by quashing the resolution dated 14.5.2003 and restraining the appointing authority from taking any action against the petitioner except in accordance with law after affording due and sufficient opportunity. Thereafter, petitioner was reinstated as Panchayat Karmi, but no powers of Secretary were bestowed upon him. However, Gram Panchayat, by resolution dated 9.6.2004 terminated the petitioner from the post of Panchayat Karmi. Aggrieved, the petitioner preferred appeal which was allowed by the SDO on 25.8.2010 vide P-5 by holding that the Panchayat has not afforded any prior opportunity of being heard to the petitioner before depriving him of his services as Panchayat Karmi. 3. Interestingly, while the SDO passes the appellate order on 25.10.2008 after having found the appeal to be worth allowing and after recording his finding in favour of petitioner, an observation was made by the said appellate authority that the appeal is treated to be filed within limitation. Pertinently, the appeal preferred by the petitioner against the resolution dated 9.6.2004 was filed on 26.3.2008 with a delay of three years and eight months. 4. Respondent No.2, thereafter approached the revisional authority i.e. Additional Commissioner, Gwalior who allowed the revision vide impugned order P-1 dated 17.3.2009 and held that appeal being time barred by three years and eight months could not have been allowed without the appellate authority first adverting to the question of limitation. 4. Respondent No.2, thereafter approached the revisional authority i.e. Additional Commissioner, Gwalior who allowed the revision vide impugned order P-1 dated 17.3.2009 and held that appeal being time barred by three years and eight months could not have been allowed without the appellate authority first adverting to the question of limitation. The revisional authority recorded the finding that no reasons were assigned by the appellate authority for condoning delay of three years and eight months in preferring the appeal. 5. After hearing learned counsel for the rival parties, this Court is of the considered view that the entire controversy boils down to two issues : 1. Whether the appellate authority (SDO) was correct to have condoned the delay of three years and eight months in preferring the appeal at the time of passing of final order in the appeal or it was incumbent upon him to have adverted to the issue of limitation at the initial stage of appeal ? 2. Whether, the reasons assigned by the petitioner in his application under section 5 of Limitation Act filed along with the appeal before the SDO were legally acceptable or not ? 6. This Court has no manner of doubt that the first question has to be answered against the petitioner. The reasons is obvious. Rule 4 of the M.P. Panchayat (Appeal and Revision) Rules 1995 begins with a non-obstante clause by providing that no appeal shall be admitted unless filed within period prescribed for the same. 7. For ready reference and convenience, rule 4 of the M.P. Panchayat (Appeal and Revision) rules is reproduced below : 4. Limitation of appeal -- (1) No appeal shall lie to the appellate authority under rule 3 after the expiration of thirty days from the date of the order against which the appeal is made. (2) The appellate authority may admit an appeal after the expiry of thirty days referred to in sub-rule (1), if it is satisfied that there was sufficient cause for not presenting it within that period. 8. Thus, it is obvious that before adverting to the merits of the appeal, it was incumbent upon the SDO to have considered and decided the question of limitation, without keeping it pending to be decided by a passing observation in the final order. 9. 8. Thus, it is obvious that before adverting to the merits of the appeal, it was incumbent upon the SDO to have considered and decided the question of limitation, without keeping it pending to be decided by a passing observation in the final order. 9. As regards the question No.2, record before this Court does not contain the application under section 5 of the Limitation Act and therefore this Court is disabled to consider the legality of the reason assigned for condoning delay. 10. When the case today is taken up from the list of final hearing after nearly seven years of its pendency, it is unfortunate to note that the most relevant and cogent document i.e. application under section 5 of Limitation Act on which the present controversy revolves, is not on record. 11. This Court declines grant of time as sought, for bringing the said application under section 5 of the Limitation Act, for the reasons mentioned infra. 12. The petitioner had been terminated from the post of Panchayat Karmi on 9.6.2004 by the resolution of Gram Panchayat. It is obvious that from that date, he must not have received any honorarium. In such a situation, it does not appeal to reason that petitioner was ignorant about his termination for nearly three years and eight months, before he filed the appeal before the SDO. 13. Thus, even if the application under section 5 of the Limitation Act is brought on record, the same possibly cannot explain the obvious and undeniable fact of petitioner being inactive for three years and eight months despite not receiving honorarium for this period. The petitioner had the knowledge of his termination, this fact can very well be presumed to exist. The principle of res ipsa loquitur (the thing speaks by itself) can very well be invoked to come to a finding that the petitioner knew about the fact of his termination immediately after he stopped receiving salary on the passing of resolution dated 9.6.2004 and therefore, there can be no other reason for the petitioner to have delayed filing the appeal by three years and eight months. 14. In view of the above findings, it would not be fruitful to relegate the petitioner back to the stage of appeal as the same shall be an exercised in futility. 15. 14. In view of the above findings, it would not be fruitful to relegate the petitioner back to the stage of appeal as the same shall be an exercised in futility. 15. In view of the above, no case for interference is made out and the order passed by the revisional authority does not suffer from any illegality or want of jurisdiction. 16. Accordingly, this petition deserves to be and is hereby rejected sans cost. Nitin Agarwal for petitioner; Kamal Jain, Government Advocate for respondents No.1 to 4/State; D. S. Raghuwanshi for respondent No.5.