1984 Supreme(MP) 558

V. D. Gysni, J.
Dhar Central Co-op. Bank v. Board of Revenue.
M. P. No. 615 of 1983 (I); Decided on 4-9-1984.

Headnote:(1) Co· operative Societies Act, 1960 (M. P.)-S. 55 (2)-dispute under cannot be presented by post.

       (2) Co-operative Societies Act, 1960 (M.P.)-Ss. 65(3),64 and 55-power of con-donation of delay under S. 65(,J)-does not apply to dispute under section 55 but applies only to dispute mentioned under S. 64.

       (3) Notice-service on the date of hearing at 3.40 p. m.-cannot be considered a service in law.

       (4) Natural Justice -principles of-opportunity of being heard-not a mere formality-opportunity should be meaningful.

       (5) Interpretation of Statutes-proviso to a section-merely carves out an exception to what has been generally provided in the body of section itself.

       In this petition the points which arise for consideration are (i) whet-her the dispute was tiled in time, (ii) whether respondents 3 and 4 had jurisdiction to entertain the dispute, which was apparently barred by time and as such time be condoned by the respondents, and (HI) whether the order dated] 11-9-979.

       proceeding ex-parte, was legal and proper.

       Held: Shri Sethi, learned counsel. for respondent No.5 does not dispute the proposition that presentation of dispute by post is not permissible under the Rules. In view of this undisputed legal position, even Annexure-R/2, which is a communication to the counsel for respondent No.5, from the Superintendent, Registrars Office, to which attention was invited by the learned counsel for respondent No.5, is of no avail to him, apart from the suspicious nature of this document. It is of no use in view of the fact that Rules do not permit such presentation of a dispute by post

       Shri Sethi contended that Section 65(3) of the Act empowers the .Registrar to condone any delay in the matter of presentation and this discretion exercised by the respondents should not be interfered with in the extraorinary jurisdiction of this Court.

       Shri Chaphekar, learned counsel for the petitioner on the other hand contends that so far as S. 55 of the Act is concerned, such power of condonation is not vested and S. 65 (3) of tbe Act cannot be construed so as to cover a dispute relating to a service matter. On. correct interpretation Shri Chaphekars contention deserves to be upheld. Section 65 falls under Chapter. VII, which is captioned as Disputes and Arbitration. Thus, it is dear that the dispute contemplated by S. 65(3) is one, which is covered by Section 64 of the Act.

       This position becomes demonstrably clear by re;1ding sub section (3) of S. 63 in just apposition with sub-section (1) of S. 65 of the Act A comparative reading of S. 55 and the proviso to sub-Sec. (2) thereof would show that the period prescribed for a dispute ragarding disciplinary action taken by a society is 30 days. It is a settled principle of interpretation of statutes that a proviso to a Section merely carves out an exception to what has been generally provided in the body of the Section itself; Sub-section (3) of S. 65 has, therefore, no application to the instant case. On facts, as established, the presentation of the dispute by respondent No.5. was apparently barred by time. It is further held that the respondents 2 and 3 have no powers under the Act to condone the delay in presentation of a dispute, contemplated by S. 55 of the Act; In the instant case there was no application or affidavit in this beha1f.

       Thus respondents 1 and 2 arrogated to themselves the power of con-donation of delay, which has not been conferred on them by the Act itself.

       The second submission made by Shri Chaphekar learned counsel for the petitioner is that there was no notice to the petitioner and the ex-parte order dated 11.4-1979, passed by respondent No.3 was wholly unjustified. Shri Sethi, on the other hand, contend that as admitted by the petitioner, the notice was served at 3.40 p. m. on 30-3-1979 and the petitioner Gould have appeared before the respondent No.3 at Indore, if so desired. It does not stand to reason that the service of a notice on the date of hearing at 3.40 p.m. would be considered to be a service of notice in law so as to enable any party to appear before the Court or authority on that very day, even if it is a matter of appearing in the same town or city. In the instant case the petitioner was served at Dhar and naturally it cannot be expected that appearance could have been made during the Office-hours. There is absolutely no material on record to show as towh at prompted respondent No.3 to proceed ex-parte on 11-4-79 and before passing such an order to proceed ex-parte. It was incumbent upon respondent No.3 to satisfy itself about the service, and the order passed on 11-4-1979 by proceeding ex-parte can in no circumstances be allowed to stand. In this view of the matter, the subsequent proceedings continued ex-parte cannot also be said to be valid.

       The fundamental principle of natural justice is that the party proceeded against must have an opportunity of being heard and this opportunity enjoined by principles of natural justice is not an empty formality, it has bas to be meaningful opportunity before it can be said that the proceedings were in accordance with the principles of natural justice. The hasty decision on the part of the respondent No.3 to proceed ex-parte suffers from violation of the principles of natural justice. Petition partly allowed.