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Judgment
Sankarasubban, J.—Petitioner in the Original Petition is the appellant. He is the President of the Kanakkari Service Co-operative Bank Ltd. Second respondent was a salesman in the Bank. It is alleged that while working as a Salesman, the second respondent sold goods without accounting for the same. There were also other irregularities committed by him. A memo of charges was served on the second respondent who denied the charges. Thereupon an advocate was appointed to conduct a domestic enquiry in the matter. The enquiry Officer conducted the enquiry and submitted his report. On the basis of the enquiry report, the bank dismissed the second respondent from service. The termination order was served on the second respondent on September 9, 1986. Thereafter, second respondent preferred an appeal before the Board of Directors. The appeal was dismissed and the copy was served on the second respondent on December 5, 1986. Thereafter, second respondent preferred an appeal u/s 18 of the Kerala Shops and Commercial Establishments Act, 1960. The appeal was preferred on April 7, 1987. A Petition to condone the delay in filing the appeal was filed on August 27, 1987. The appellate authority condoned the delay in filing the appeal. Thereafter, it passed Ext.P3 preliminary order dated April 30, 198,8. The appellate authority found that the domestic enquiry conducted was valid and proper. The final order of Ext.P4 was passed on July 20, 1988. The appellate authority found that the charges were not proved and hence set aside the dismissal order. The appellate authority ordered reinstatement of the second respondent with backwages. In case the Bank fails to reinstate the workman, Bank was directed to pay compensation amounting to Rs. 25,000/- Original Petition was filed challenging Ext.P4 order. Learned single Judge dismissed the Original Petition. Hence this appeal.
Shri Mathai M.Paikeday, learned counsel appearing for the appellant, raised three points (1) the period for filing the appeal should have been calculated from the date of service of the order of termination passed by the Bank, viz., September 9, 1986 and not from December 5, 1986 when the order in appeal was served on the appellant, (2) in any event, the date of filing the appeal ought to have been treated as August 27, 1987 when the petition to condone the delay was filed, and (3) the appellate authority exceeded its authority by reappreciating the evidence and passing Ext.P4 order.
Point No. 1
Rule 3(1) of the Kerala Shops and Commercial Establishments Rules reads as follows:
"3. Appeals u/s 18- (1) the Deputy Labour Commissioners of the Labour Department shall be the appellate authorities within their respective jurisdiction for the purposes of Section 18 and any such appeal shall be preferred by the employee within sixty days from the date of delivery of the order terminating his services with the employer. The date of sixty days aforesaid shall be reckoned from the date on which the order is delivered to the employee either personally or, if that be not practicable, by prepaid registered post or ordinary post to his last known address in which case the date of the delivery shall be the date when the letter would arrive in ordinary course of post.
Provided that the appellate authority may admit an appeal presented after the expiration of the said period, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period;
Provided further that no such appeal shall be admitted after a period of six months from the date of delivery of the order appealed against."
As per the Rule, the appeal has to be preferred within sixty days from the date of delivery of the order terminating his services with the employer. Learned counsel argues that the ''order'' mentioned above is the original order of punishment passed by the Bank not the order disposing of the appeal filed before the managing committee as per the Bye laws. There are two aspects standing in the way of accepting the above arguments. When an appeal is provided against an order, then the order of the original authority merges with that of the appellate authority. It may happen that the appellate authority may set aside the order of termination. Then there is no question of termination. At one time it was thought that the principle of merger applies only with regard to orders passed by courts. In S.S. Rathore Vs. State of Madhya Pradesh, a Seven Judges'' Bench held thus:
"Powers of Adjudication ordinarily vested in Courts are being exercised under the law by tribunals and other constituted authorities. In fact in respect of many disputes the jurisdiction of the court is now barred and there is vesting of jurisdiction in tribunals and authorities. That being the position, we see no justification for the distinction between courts and tribunals in regard to the principle of merger. On the authority of the precedents indicated, it must be held that the order of dismissal made by the collector did merge into the order of the Divisional Commissioner when the appellant''s appeal was dismissed on August 31, 1966".
The second aspect is that the right of appeal is created under the Bye-laws or the Rules framed by the Bank, it is axiomatic that aggrieved person has the right to exhaust all the remedies provided under the statute. Rule 198(4) of the Co-operative Societies Rules provides an appeal remedy as against any order imposing penalty. The importance of such an appeal has been stressed by a Division Bench in President, Puduperiyaram Service Co.op Society v. Rugmini Amma and Ors. 1996 (1) KLT 100. Therefore, the special remedy provided in the statute has to be pursued. As was observed in Syndicate Bank v. R. Muniraj and Ors. 1975-II-LLJ-106 the termination of services with the employer does not become complete until such appeal or revision is disposed of.
The question has come up before the Supreme Court in interpreting Article 58 of the Limitation Act in S.S.Rathore v. State of M.P. (supra). Article 58 of the Limitation Act reads as follows:
"Article 58 - To obtain Three When the right to other declaration Years sue first accrues"
There a suit was filed for a declaration that the order of dismissal was inoperative and the plaintiff continued to be in service. The order of dismissal passed by the Collector was appealed against before the Divisional Commissioner. Supreme Court held that "cause of action first arises when the remedies available to the public servant under the relevant service Rules as to redressal are disposed of. The same was followed in Mohd. Quaramuddin (Dead) by Lrs. Vs. State of A.P., . In Sadanadan v. Regional Manager. State Bank of India 1984 KLT 766 a Division bench of this Court held thus:
"When a dismissed employee takes recourse to the appeal provision, the appeal being to the employer himself, that order in appeal is the final and ultimate order of the employer in the matter of dispensing with the services of the employee and termination would begin to run from the date of that order only".
Here the jurisdiction of the appellate authority for condoning the delay is circum-scribed by imposing a time limit Such a time limit should be interpreted in favour of the aggrieved person whose right of appeal is impaired by such restrictions. The time limit is made to run explicitly from the date of the order appealed against. So, it is immaterial for this purpose to decide whether order of termination is different from the order appealed against.
Point No. 2
The second point urged was that even though the appeal was filed on April 7, 1987, the petition to condone the delay was filed only on August 27, 1987 which was beyond the outer period of six months from December 5, 1986 (date of order of the managing Committee in appeal) and hence the first respondent had no jurisdiction to condone the delay.
Rule 3(1) of the Kerala Shops and Commercial Establishments Rules does not envisage filing of an application for condonation of delay along with appeal. What the Rule states is that the appeal has to be preferred within sixty days. But the appellate authority can admit an appeal preferred after sixty days, if sufficient cause is shown. But the appellate authority cannot admit an appeal after a period of six months from the "date of delivery of the order appealed against". The right of appeal is not a mere procedural right, but it is a substantive right. Hence unless there is something in the Rule which expressly takes away this right, the right is not destroyed. Thus the right of appeal ceases to exist, if six months had expired from the date of delivery of the order appealed against. The Rule does not insist on filing an application for condonation of delay. What it insists on is that the appellate authority should be satisfied that the appellant had sufficient cause for not preferring the appeal within the period. The Rule does not say that the appeal will be deemed to be validly presented only if it is accompanied by an application to condone delay. Of course, application to condone the delay has to be filed when it is so required by the provisions of law.
In Thayoob Sait v. Ayyappan 1963 KLT 455 a Division Bench of this Court dealing with an appeal filed under Order 41, Rule 1 of the CPC and beyond time held thus:
"We do not think this decision lays down a rule that unless the application to condone the delay is filed along with the proceeding, the same must be dismissed".
Relying on the decision of the Supreme Court in Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, their Lordships observed that such appeals could be treated as defective appeals and the appellant should be required to remedy the defect. After the CPC as amended in 1976, Order 41 Rule 3A was introduced. Order 41 Rule 3A(1) of the CPC reads thus:
"Application for condonation of delay: (1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period."
Rule 3-A mandates for filing of an application to condone delay along with the memorandum of appeal when the appeal is filed out of time. The interpretation of Rule 3-A came for consideration in Maya Devi v. Krishna Bhattathiri 1981 KLT 239. It was held that the memorandum of appeal cannot be dismissed merely on the ground that it was not accompanied by a petition to condone the delay. The court said that in such cases as per the procedural rules the memorandum of appeal should be returned for curing the defects. When the appeal is represented after curing the defects the date of presentation of the appeal shall be deemed to be the date on which it was originally filed. In this case, the Rule does not insist on filing an application to condone the delay along with the memorandum of appeal. Further going by the decision in Maya Devi v. Krishna Bhattathiri (supra), such presentation can be deemed to be only a defective presentation and once such defect is cured, the appeal will be deemed to be presented on the date on which it was originally filed. This the appellant is not right in contending that the appeal was validly filed only on August 27, 1987 when the petition to condone the delay was filed.
Point No. 3
The last point urged was that having found that the domestic enquiry was validly conducted, the first respondent went wrong in setting aside the dismissal order. The appellate authority initially found that the domestic enquiry was conducted in accordance with the principles of natural justice. Once it is found that the enquiry is not vitiated by malafides, the appellate authority has to enquire whether the order passed was proper or not. For this purpose the appellate authority has got power to reappreciate the evidence (See M.A.K. and Sons Vs. Kumara Pillai (P.) and Another, Thus Ext.P4 order was passed legally and there is no legal invalidity attached to the same.
In the result, Writ Appeal is dismissed.