Zila Sahakari Kendriya Bank Maryadit v. Deputy Registrar, Co-operative Societies
2024-02-19
RAJANI DUBEY
body2024
DigiLaw.ai
ORDER : The petitioner has preferred the present writ petition challenging the orders dated 19.01.09 (Annexure P-2), 04.11.11 (Annexure P-3),06.03.13 (Annexure P-4) and 25.02.14 (Annexure P-5) passed by respondent authorities dismissing the claim of the petitioner as being time barred. 2. Brief facts of the case, as narrated in the petition, are that the petitioner is a co-operative society registered under the CG Co- operative Societies Act, 1960 and engaged in the business of banking. It also deals in purchase and sale of minor forest produce through its subsidiary society namely L.A.M.P.S. Respondent No.4 was working as a Lower Division Clerk under the establishment of the petitioner and during the course of his service, he withdrew a sum of Rs.62,176.25 as advance on various dates. However, he deposited a sum of Rs.9,498.90 only. Hence a notice was issued to respondent No.4 for depositing the remaining amount and on his failure, a show cause notice for initiation of departmental enquiry was issued to him. Accordingly, departmental enquiry was conducted wherein respondent No.4 participated and the enquiry officer found the charges proved against him. Having concurred with the report of the enquiry officer, the disciplinary authority vide order dated 29.2.2008 terminated services of respondent No.4 vide Annexure P/1. 3. On 3.3.2008 a suit under Section 64 of the CG Co-operative Societies Act, 1960 (in short “the Act of 1960”) was filed by the petitioner before respondent No.1 on the ground that respondent No.4 had obtained various advances and has not accounted for or deposited Rs.52,677.35 despite issuance of several notices and therefore, a decree along with interest be passed in favour of the petitioner. Respondent No.4 though appeared but did not file any reply and after a lapse of one year on 5.5.2009 filed an application under Section 65 of the Act of 1960 and contended that the suit is barred by limitation. Respondent No.1 vide order dated 19.1.2009 (Annexure P/2) dismissed the suit on the ground of limitation. Thereafter, an application under Section 78(1) of the Act of 1960 for review of the order dated 19.1.2009 was filed by the petitioner. However, vide order dated 4.11.2011 respondent No.1 concluded that since the order sought to be reviewed is appealable one under Section 77 of the Act of 1960, the review petition is not maintainable.
Thereafter, an application under Section 78(1) of the Act of 1960 for review of the order dated 19.1.2009 was filed by the petitioner. However, vide order dated 4.11.2011 respondent No.1 concluded that since the order sought to be reviewed is appealable one under Section 77 of the Act of 1960, the review petition is not maintainable. Hence, the petitioner preferred an appeal under Section 77(1) of the Act of 1960 before respondent No.2 who after hearing the parties concluded that dispute is of the year 1986, show cause notice was issued on 14.9.2000 for initiation of departmental enquiry whereas the suit is filed on 3.3.2008 which is beyond the period of limitation and accordingly, dismissed the appeal vide order dated 6.3.2013 (Annexure P/4). Further, the second appeal of the petitioner was also dismissed by respondent No.3 vide order dated 25.2.2014 (Annexure P/5) holding that the orders passed by the Courts below are just and proper as the suit is clearly barred by limitation. Hence this petition for the following reliefs: “10.1 To call for the records of the case for the kind perusal of this Hon’ble Court. 10.2 To issue an appropriate writ or order and declare that the order dated 19.01.09 (Annexure P-2), 04.11.11 (Annexure P-3), 06.03.13 (Annexure P-4) and 25.02.14 (Annexure P-5) are bad in law. 10.3 To issue an appropriate writ or order and quash the order dated 19.01.09 (Annexure P-2), 04.11.11 (Annexure P-3), 06.03.13 (Annexure P-4) and 25.02.14 (Annexure P-5). 10.4 To issue an appropriate writ or order and direct res. no. 1 to decide the dispute filed by the petitioner in accordance with law. 10.5 Any other relief deemed fit in the facts and circumstances of the case may also be granted.” 4. Learned counsel for the petitioner submits that the impugned orders passed by respondents No. 1 to 3 are bad in law and liable to be set aside as the conclusion arrived at by them that the suit filed by the petitioner is barred by limitation, is wholly erroneous. Respondents No. 1 to 3 failed to consider that Section 65 of the Act of 1960 prescribes limitation for filing of a suit to be six years from the date on which the act or omission with reference to which the dispute arose, took place.
Respondents No. 1 to 3 failed to consider that Section 65 of the Act of 1960 prescribes limitation for filing of a suit to be six years from the date on which the act or omission with reference to which the dispute arose, took place. In the present case, respondent No.4 received several advances on different dates; on 14.2.2000 a show cause notice for initiation of departmental enquiry was issued to him which was replied by him and after a due departmental enquiry, the enquiry officer submitted report on 24.11.2006 wherein charges leveled against respondent No.4 were proved. Hence respondent No.4 was terminated from service on 29.2.2008. The cause of action in this case would arise from the date of termination i.e. 29.2.2008 or from the date the enquiry report was submitted i.e. 24.11.2006. In both the cases, the suit filed on 3.3.2008 was well within limitation. Respondents No. 1 to 3 failed to consider that until and unless a finding with respect to act or omission is recorded by the authority, a suit under Section 64 of the Act of 1960 could not be filed. As per enquiry report dated 24.11.2006, the charges of causing loss to the society were duly proved against respondent No.4 and as such, the suit filed on 3.3.2008 cannot be said to be hit by limitation. Respondents No. 1 to 3 utterly failed to exercise the jurisdiction vested with them and acted with material irregularity. Therefore, the impugned orders are liable to be set aside and respondent No.1 be directed to decide the dispute raised by the petitioner in accordance with law. 5. On the other hand, learned counsel for respondents No. 1 to 3 strongly opposes the contention of the petitioner and submits that the instant petition has been filed by the petitioner essentially under Article 227 of the Constitution of India for setting aside the impugned orders passed by different appellate/revisional authorities in the capacity of quasi judicial authority under the Act of 1960. The impugned orders have been passed after affording reasonable opportunity of hearing to the parties and considering all the relevant aspects of the matter. The petitioner has failed to make out a case for interference by this Hon’ble Court. Therefore, this petition being without any merit is liable to be dismissed. Reliance has been placed on the decision of the Hon’ble Supreme Court in the matters of Mohd.
The petitioner has failed to make out a case for interference by this Hon’ble Court. Therefore, this petition being without any merit is liable to be dismissed. Reliance has been placed on the decision of the Hon’ble Supreme Court in the matters of Mohd. Yunus Vs. Mohd. Mustaquim and others, AIR 1984 SC 38 . 6. Learned counsel for respondent No.4 submits that the respondent authorities have passed well reasoned orders and recorded a concurrent finding that the suit filed by the petitioner was beyond limitation. This apart, respondent No.4 has been acquitted of the charges by the Chief Judicial Magistrate, Jagdalpur in Criminal Case No.1851/95 vide judgment dated 3.7.2009 vide Annexure R-4/1. The matter of reinstatement of respondent No.4 is already pending before respondent No.1 but on the pretext of pendency of this petition, the petitioner is not taking respondent No.4 back in service. Therefore, the present petition is liable to be dismissed with a direction to the petitioner to take back the respondent No.4 in service. 7. Heard learned counsel for the parties and perused the material available on record. 8. It is an admitted position in this case that respondent No.4 was working as Lower Division Clerk under the establishment of the petitioner. A departmental enquiry was conducted against him in which the disciplinary authority passed an order dated 29.2.2008 (Annexure P/1) for termination of his service. It is also not in dispute that a suit under Section 64 of the Act of 1960 was filed by the petitioner before respondent No.1 for recovery of Rs.52,677.35 which was misappropriated by respondent No.4 and thereby caused financial loss to the petitioner stating that even after issuing notices, he did not deposit the said amount. Respondent No.1 passed order on 19.1.2009 (Annexure P/2) and dismissed the suit on the ground of limitation as it was not filed within six years of the cause of action. The review petition filed by the petitioner under Section 78(1) of the Act of 1960 was also dismissed vide order dated 4.11.2011 (Annexure P/3) by respondent No.1 on the ground that since under Section 77 of the Act of 1960, an appeal can be filed against the order sought to be reviewed, the review petition is not maintainable.
The review petition filed by the petitioner under Section 78(1) of the Act of 1960 was also dismissed vide order dated 4.11.2011 (Annexure P/3) by respondent No.1 on the ground that since under Section 77 of the Act of 1960, an appeal can be filed against the order sought to be reviewed, the review petition is not maintainable. The petitioner thereafter filed an appeal under Section 77(1) of the Act of 1960 before respondent No.2, however, this appeal was also dismissed by order dated 6.3.2013 (Annexure P/4) and the second appeal was also dismissed by respondent No.3 vide order dated 25.2.2014 (Annexure P/5). 9. The contention of learned counsel for the petitioner is that respondent No.4 received various advances on different dates, the cause of action in the present case would arose from the date of termination of his service i.e. 29.2.2008 or from the date on which the enquiry report holding him guilty was submitted on 24.11.2006. Therefore, the period of limitation would run either from 29.2.2008 or 24.11.2006 and as such, the orders passed by the concerned authorities dismissing the suit and appeals of the petitioner on the ground of limitation are contrary to the rules. 10. The Hon’ble Apex Court in the matter of Mohd. Yunus (supra) held in paras 6 & 7 of its judgment as under: “6. The petition under Art. 227 of the Constitution was wholly misconceived. An appeal lay from an order under O.XXI, Rule 92 setting aside or refusing to set aside a sale, under O.XLIII, rule 1 (j) to the District Judge. That apart, the application made by the petitioner claiming to be the legal representative of the surety, the judgment-debtor's representative, on the one hand and the auction-purchaser, the decree-holder's representative, on the other alleging that there had been a fraud perpetrated by the decree- holder in causing the sale to be held, with a prayer for recording satisfaction of the decree under O,XXI, rule 2, raised a question relating to the execution, discharge or satisfaction of the decree and therefore fell within the purview of Sec. 47 which prior to February 1,1977 was appealable because then a decision under Sec. 47 was deemed to be a decree under Section 2(2) of the Code, and therefore the petitioner had the remedy of an appeal to the District Judge.
Even if no appeal lay against the impugned orders of the learned Subordinate Judge, the petitioner had the remedy of filing a revision before the High Court under Sec.115 of the Code. Upon any view of the matter, the High Court had no jurisdiction to interfere with the impugned orders passed by the learned Subordinate Judge, under Art. 227 of the Constitution. A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Art. 227. 7. The supervisory jurisdiction conferred on the High Courts udder Art. 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision. 11. In light of the above decision, it is clear that the respondent authorities dismissed the suit, revision and appeals of the petitioner on the ground of limitation and the petitioner has no right to challenge these well reasoned orders of the competent authorities in writ jurisdiction. This Court finds no good reason to interfere with the impugned orders in exercise of writ jurisdiction. Accordingly, the writ petition being without any substance is hereby dismissed.