STATE OF PUNJAB AND ANOTHER versus SHAMLAL MURARI & ANR,

STATE OF PUNJAB AND ANOTHER

SHAMLAL MURARI & ANR, October 6, 1975

[V. R. KRISHNA lYER AND A. C. GUPTA, JJ.]

Letters Pate11t Appeals under c/au~e 10-The Punjab and Haryana High Court Rules and Orders, Vol. 5 Chapter 2-C-Ru/e 3-Core or esse11ce of the Rule-Rule is 11ot ma11datory for the purposes of e11tertaini11g t/1e Leffers Patent Appeal-Breach of the Rule is only an irregularitY-lnterference, by the Court of Appeal with the discretionary exercise of power should be exceptional and 011ly when there is somet/1i11g perverse or irrational in the exercise of that power.

Rule 3 of Chapter 2-C, Vol. 5 of the Punjab and Haryana High Court Rules and Orders reads as follows :

"R. 3 : No appeal under clause 10 of the Letters Patent will be received by the Deputy Registrnr unless it is accompanied by three typed copies of the following :

(a) Memorandum of appeal;

(b) Judgment appealed from, and

( c) Paper book which was before the Judge from whose judgment the appeal is preferred."

While construing the said ru.le, the Full Bench of the Punjab and Haryana High Court in JJikram Das v. The Fi11a11cial Commissioner, Revenue, Punjab, . C/wndigarh and others, A.LR. 197 5 Punjab and Haryana 1, held that Rule 3 relating to filing of Letters Patent Appeals is mandatory.

The appellant-State while preferring the Letters Pa!ent Appeal against the orders of the single Judge holding in favour of the respondent that the denial of increments and certain o!her benefits for failure to pass departmental test for which exemption has been granted to him as bad, filed copies of all the three documents referred to in Rule 3 relating to Letters Patent Appeal, but not three copies of each an_d with an application for condonation of delay. The Court refused to entertain the appeal (i) following Bikram Dass case for non-compliance of Rule 3, and (ii) declining to exerdse its discretion as regards !he extension of the period of limita,tion and condonation of delay.

On appeal, by Special Leave, the State contended :

(i) that the ratio in Bikram Das's case of the Full Bench of Punjab and Haryana High Court holding that Rule 3 relating to entertaining of Letters Patent Appeals as mandatory was wrong.

(ii) Reluctance to exercise the discretionary power to condone the delay and extend the period of limitation was not proper, and

(iii) Denial of the increments and other benefits to Government servant for failure to pass the departmental test in spite of exemption having been granted to him, was not bad in law.

Dismhsing the appeal, the Court,

HELD: (1) The contention that the failure to pass the departmental test by the Government servant concerned after having been put in more than two decades of service cannot stand in the way of his enjoying the benefits of increments etc., particularly, because he had been accorded exemption, is not correct. [84 G.]

(2) It is true that Rule 3 of the Leitem Patent Appeal of the Punjab and Haryana High Court Orders and Rules, Vol. 5, Chapter 2-C, in form, strikes

mandatory note and, in design, is intended to facilitate plurality of Judges· hearing the appeal, equipped with set of relevant papers. May be, there is force in the view,. that certain basic records must be before the Court along with the appeal if the Court is to function satisfactorily in the exercise of its appellate power. Jn this sense, the needs of the Rule transcend the directory level and may perhaps be considered mandatory need. [85 D-EJ .•

(3) Even taking stern view, every minor detail in Rule 3 cannot carry

, compulsory or imperative import. Three copies would certainly be greater advantage, but what is the core of the matter is not the numher but the presence; and the over emphasis on three copies is mistaken. Perhaps, the Rule requires three copies and failure to comply therewith may be an irregularity. What is of the essence of Rule 3 is not that three copies should b.e furnis~ed, but that copies of all the three important documents referred to ·in that rule shall be produ.:ed. The Court, if it thinks it neceS'3itous, exercise its discretion and grant further time for formal compliance with the Rule, if the copies fall short of the requisite number. Where· the non-compliance, though procedural, will thwart fair hearing or prejudice doing of justice to parties, the Rule is manda-., , tory. If the breach can be corrected ·without injury to just disposal of case, regulatory requirement .should not be enthroned into dominant desideratum. Sin:e courts are -to do justice, not to wreck this end product on technicalities, even what is ,regarded as mandatory traditionally mav. perhaps have to be mode-rated into wholesome directions to be complied with in time or in extended time. [85 F-HJ.

. Jn the present case, as copies of all the three documents prescribed have been furnished, but not three copies of each, the omission or default is only breach which can be characterised as an irregularity to be corrected on app!ica- · tion by the party fulfilling the condition within time allowed by the Court. To this extent, the view taken by the Punjab High Court in Bikram Dm's case is not correct. [86 B-C].

· Bikram Das v. The Financial Commissioner, Revenue, Punjab, Chandigarh and Ors.; A.J.Jl. 1975 Pmijab & Haryana 1, over-ruled partly.

( 4) Dhcretionary exercise of power by Court can be interfered with by Court of Appeal only when there is something perverse or irrational in the cxer:is~. ln the instant case, there being nothing perverse or irrational, the reluctance in interfering at the appellate level by the High Cou.rt by declining to exercise its discretion in condoning the delay in compliance with Ruk 3 of tbe Punjab and Haryana High Court Orders and Rules, Vol. 5, Chapter 2-C is normal and proper. [86 D'-E].

OBfTER:

fo) Passing petty tests after petrifying length of dull official service is an odd insisrenee except in important levels of work. (84 GJ.

(b) The use of "shall''..!...a work of slippery semantics-in rule is not decisive and the conteKt of the statute, the purpose of the prescrip-tion, the public inju.ry in the event of neglect of the rule and the conspectus of circumstances bearing on the importance of the condi-tion are considerations before condemning violation of rule as fatal. (85. E~FJ.

( c) Processual law is r.ct to be tyrant but servant, not an obstruction but an aid td justice. Procedural prrescriptions are the hand-maid and not the mistress, a. lubricant, not resistant in the administration of justice. [85 H, 86 A].

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1415 of 1975. •

Appeal by Special Leave from the Judgment and Order dated the 11th September, 1974, of the Punjab and Haryana High Court in Letters Patent Appeal No. 259 of 1974.

Kapil Sibal and 0. P. Sharma, for the Appellants.

V. C. Mahajan a~d Mrs. Urmila Sirur for Respondent No. 1.

The Judgment of the Court was delivered by

KRISHNA IYER, J. Having granted special leave we have heard counsel on both sides in this appeal right away on all the points in-volved-of course, with their coJ,1sent and preparedness.

The State, the appellant, has urged that the High Court's judgment is wrong and our conclusion rests on consideration of three obstacles in the way of the appellant which we now proceed to dispose of. The facts necessary to appreciate the controversy are minimal and emerge from the brief, though sufficient, discuss.ion that follows. Brevity is not inconsistent with clarity and prolixity is not· always or ever virtue.

The first fatal objection to the Government's cali.e stated in the order of the High Court, is the ratio in Full Bench decision in Bikram Das v. The Financial Commissioner, Revenue, Punjab~ Chandigarh and Ors.,(') which holds that rule 3 relating to filing of Letters Patent Appeals is mandatory which, in this instance, has not been complied with, resulting in the dismissal of the appeal in limine. The second obstacle in the way of the appellant is that assuming that r. 3 is direc-tory-cum-discretionary, an application for condonation of delay in compliance with r. 3 had been made and the High Court, in division Bench, had declined to exercise its discretion in favour of the appel-lant. The reluctance in interfering, at the appellate level, with the exercise of the discretion by the High Court is natural and proper. The third point, which is the substantive one on the merits, is as to whether it is just and legal that Government servant, who has put in 22 long and languishing years of service, should be denied increments and certain other benefits. for failure to pass departmental tests for which exemption had been granted to him. The learned single Judge had held that the failure to pass the departmental test should not be bar to the drawal of the benefits, and since the letters patent appeal was not entertained on the procedural ground we have indicated above, that question did not fall for decision.

Right away, we may indicate that we· are not impressed with the State's contention that the failure to pass the departmental test by the -Government servant concerned, after having put in more than two decades of service cannot stand in the way of his enjoying the benefits • of increments, etc., particularly because he had been accorded exemp-tion. Passing petty tests after petrifying length of dull official service is an odd insistence except in important levels of work.. That apart, we. see no reason to differ from the learned single Judge's finding on this matter. That should put the lid on this appeal but the concern of the State is to set right the law regarding rule 3 above mentioned.

Counsel for the State contends that large number of appeals will be affected by the interpretation of r. 3 of the Punjab & Haryana High

(1) A. I. R. 1975 Punjab & Haryana I.

Court Rules and Orders, Vol. 5, Chap 2-C by the Full Bench in Bikram Dass (supra). What is pressed before us is that_r. 3 which requires, in terms, that three typed copies of (a) the me;morandum .of appeal, (b) judgment appealed from, and (c) the paper book which was before the Judge from whose judgment the appeal is preferred, is not mandatory, although· the Full Bench has chosen to hold that it is obligatory to comply with them if the appeal is to be entertained at all. We do not agree that this fatal consequence should necessarily follow even if there is minor deviation in fulfilling the requirements of r. 3.

It is appropriate at this stage to extract r. 3 which runs as follows:-

"3. No appeal under clause 10 of the Letters Patent

· will be received by' the Deputy Registrar unless it is accom-panied by three typed copies of the following:-

(a) Memorandum of appeal;

(b) Judgment appealed from, and

(c) Paper book which was before the Judge from whose judgment the appeal is preferred."

It is true that, in form, the rule strikes ma\.1datory note and, in design, is intended to facilitate pluarlity of judges hearing the ap-peal, each equipped with set of relevant papers. May be,. there is force in the view taken by the Full Bench that certain basic records mµst be before the Court along with the appeal if the Court is to fnnc-tfon satisfactorily in the exercise of its appellate power. In this sense, the. needs of the rule transcend the. directory level and may, perhaps, be considered mandatory need. The use of 'shall' _;a word of slip-pery semantics-in rule is not decisive and the context of the statute the purpose of the prescription, the public injury in the event of neglect of the rule and the conspectus of the circumstances bearing on the importance of the condition; have all to be considered before condemn-ing violation as fatal.

It is obvious that even taking stem view, every minor detail in r. ~ cann?t carry compulsory ?r imperative import. After all, what is requtred for the Judges to dispose of the appeal is the memo-randum of appeal plus the judgment and the paper book. Three copies would certainly be great advantage, but what is the core of the matter is not the number but the presence, and the over-emphasis laid by the Court on three copies is, we think, mistaken. Perhaps, the rule re-quires three copies and failure to comply therewith may be an irregu-· larity. Had no copy been furnished of any one of the three items, the result might have been different. In the present case, copies of all the three documents prescribed, have been furnished but not three copies of each. This omission or default is only breach which can be characterised as an irregularity to be corrected by condonation on ap-plication by the party fulfilling the condition within time allowed by the Court. We must always remember that processual law is not to be tyrant but servant, not an obstruction but an aid to justice. It

has been wisely observed that procedural prescriptions are the hand-maid and not the mistress, lubricant, not resistant in the administra-tion of justice. Where the non-compliance, tho' procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected with-out injury to just disposal of the case, we should not enthrone regulatory requirement into dominant desideratum. After, all Courts are to do justice,. not to wreck this end _product on technicali-ties. Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be modera!ed into wholesome directions to be complied with in time or in extended time. Be that as it may, and ignoring for moment the exploration of the true office of procedural conditions, we have no doubt that what is of the essence of r. 3 is not that three copies should be furnished, but that copies of all the three important documents referred to in that rule, shall be pro-duced. We further feel that the Court should, if it thinks it necessi-tous, exercise its discretion and grant further time for formal compli-ance with the rule if the copies fall short of the requisite number. In this view and to the extent indicated, we over-rule the decision in Rikram Dass's (supra) case.

The State has- yet another hurdle in its walY. In the present case, an application for condonation of delay in filing the three copies re-quired by r. 3 was made and the Court, in the exercise of its discre-tion, held that such condonation should not be granted. Discretionary exercise of power by Court cannot be lightly interfered with by Court of appeal,_ and we are loathe, therefore, to upset the order of the High Court declining to condone the delay, there being nothing per-verse or irratid11al in the exercise. In this view also, the appcflant has to lose. For jhese reasons, the appeal fails and is dismissed. There will be no order as to costs.

Appeal dismissed.