Calcutta High Court (Appellete Side)
For The Writ vs Ganga Das on 11 April, 2008
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
11.4.2008.
F.M.A. No. 2247 of 2007
Mr. P. Chaturvedi
Mr. Asit Baran Ghosh
.. for the writ petitioner/appellant.
Mr. Dipak Kr. Paul
.. for the respondent/applicants.
Re: C.A.N. No. 3786 of 2007 Pratap Kumar Ray,J Heard the learned Advocates appearing for the parties.
This is an application seeking extension of time to complete the departmental proceeding which was allowed to be completed within two months by the order dated 27th February, 2007 when the appeal of the delinquent employee was disposed of without interfering with the departmental proceeding which was the subject matter of challenge. As the departmental proceeding was pending for a considerable period, the Court directed to complete the departmental proceeding within two months positively with a rider that such time limit could be extended if and only if there was any situation as would be beyond the control of the disciplinary authority to complete the proceeding within the time framed by the Court. The application for extension of time that is the present application has been filed before expiry of the said two months and more precisely on the last date as fixed by the Court to complete the proceeding, though we observe in our order dated 27th February, 2007 that well before the expiry of the time limit the application of extension could be considered. But since the application was filed even on the last date of expiry of time limit, we are accepting the application as in order to decide the issue. The contingency and/or the circumstance for which the disciplinary proceeding could not be completed has been detailed in 2 the application as well as in the affidavit-in-reply. It appears from the affidavits filed by the respondent-Bank that Mallabhum Gramin Bank was amalgamated along with other four such Gramin Banks to constitute one Bank under the name and style of "Bangiya Gramin Vikash Bank"
by notification dated 21st February, 2007 published in the Gazette of India Extra-ordinary. This amalgamation of the respondent-Bank along with other four Banks were done in exercise of power conferred by sub-section (1) of Section 23A of the Regional Rural Banks Act, 1976 by the Central Government. As a result of such formation of the Bank, "Bangiya Gramin Vikash Bank" by amalgamation of other Gramin Banks including the respondent, Mallabhum Gramin Bank, a service regulation which will control the departmental proceeding as well as the other service condition was framed and constituted in exercise of power under Section 30 of the Regional Rural Banks Act, 1976 under the name and style of "Officers & Employees Service Regulations, 2007".
The same was published in the Gazette of India on 4th March, 2008. However, from the records it appears, namely, the application and the rejoinder that the departmental proceeding has reached to the stage of consideration of the punishment by the disciplinary authority. The Enquiring Officer has submitted his report and objection of such report has been filed by the delinquent employee. The very tenor of the order dated 27th February, 2007 was to complete the departmental proceeding in accordance with law. The Court accordingly did not interfere with the initiation of the departmental proceeding which was the subject matter of challenge in the writ application. The time limit was fixed in view of the pendency of the matter. It is a settled law that time limit as is fixed by the Court to complete anything by an order comes within the field of procedural part of order and not on subjective adjudication part of the order. The adjudicatory part was whether the departmental proceeding should be allowed to continue on merit. Such adjudication was done by this Court disposing of the appeal by not interfering with the impugned judgement under appeal 3 passed by the learned trial Judge whereby and whereunder the initiation of the departmental proceeding and its continuation was not interfered with. The extension of time to complete it is nothing but allowing the time limit to complete a procedural matter and it is not coming within the field of any adjudication of the matter on merit.
Considering that aspect of the matter and having regard to the judgement in this field, namely, Mahanth Ram Das -vs- Ganga Das, reported in A.I.R. 1961 S.C. 882 wherein it has been held that when there would be no prayer for modification of substantive portion of the judgement but only the procedural portion of the judgement, the doctrine of functus officio had no applicability. This judgement was followed by the Calcutta High Court in the case Anadi Nath Roy Chowdhury -vs- Sudhangshu Kumar Bhattcharya, reported in 1987 (1) CLJ 370. One of us (Pratap Kumar Ray, J.) sitting singly while considering the applicability of the said doctrine and its scope thereof while extending the time limit of any act which was directed to be completed by the Court in the case Snehendu Chowdhury & Ors. -vs- State of West Bengal & Ors. reported in (2006) 2 Cal. LT 412 (HC) by dealing an identical question about extension of time of a departmental proceeding answered it by holding that time limit for completion of the departmental proceeding being in the procedural field of judgement, it could be extended. The applicability of the amended provision of Section 148 of the Code of Civil Procedure whereby a limitation has been prescribed not to extend any time limit beyond thirty days became the subject matter for consideration on the issue as to whether the Court would be powerless on the situation when there will be expiry of time limit of thirty days in terms of Section 148 of the Code of Civil Procedure, to extend the time, the answer has been given by the Apex Court in the case Salem Advocate Bar Association, T.N. -vs- Union of India, reported in (2005) 6 SCC 344, a judgement of 3-Judges Bench by holding that the rigid operation of the section would lead to an absurdity and extension of time beyond the 4 maximum period of thirty days could be allowed by the Court by taking resort to Section 151 of the Code of Civil Procedure. Paragraphs 41, 42 and 43 would be profitable to quote, which read such:-
"41. The amendment made in Section 148 affects the power of the court to enlarge time that may have been fixed or granted by the court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the court has no inherent power to extend the time beyond 30 days is the question. We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of the court. The rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to operate fully. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either under Section 148 or Section 151. We are dealing with a case where the time is fixed or granted by the court for performance of an act prescribed o allowed by the court.
42. In Mahanth Ram Das v. Ganga Das this Court considered a case where an order was passed by the Court that if the court fee was not paid by a particular day, the suit shall stand dismissed. It was a self-operating order lading to dismissal of the suit. The party's application filed under Sections 148 and 151 of the Code for extension of time was dismissed. Allowing the appeal, it was observed:
"How undesirable it is to fix time peremptorily for a happening which leaves the court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out often enough to be inexpedient. Such 5 procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves on the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians".
43. There can be many cases where non-grant of extension beyond 30 days would amount to failure of justice. The object of the Code is not to promote failure of justice. Section 148, therefore, deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the court would have inherent power to extend time beyond 30 days".
The learned Advocate appearing for the appellant, who is the opposite party of this application, namely, the delinquent employee has opposed this application by relying the judgement passed in the case Smt. Sova Ray & Anr. -vs- Gostha Gopal Dey & Ors., reported in A.I.R. 1988 S.C. 981 wherein in a compromise decree there was a default clause regarding payment of instalment money under decree and there was a failure to make payment. The issue was considered whether Court had the power to extend the time limit. Relying upon one earlier judgement of the Apex Court passed in the case Smt. Periyakkal -vs- Smt. Dakshyani, reported in A.I.R. 1983 SC 428, the Court held that ordinarily on mere asking time should not be granted but in rare case to prevent manifest injustice, time could be allowed. The relevant paragraph of the said report being paragraph 8 reads such:-
6
" 8. Coming to the next question as to whether the High Court acted rightly in extending the period for payment of the second instalment, th learned counsel for the parties have placed all the facts and circumstances of the case in detail in support of their respective arguments, and we have considered them closely and do not have any hesitation in holding that the High Court , assuming that it had the power to do so, was not justified in allowing the prayer of the defendant no. 9 permitting him to make a grossly belated payment. Even where such a power exists it is not to be exercised liberally. In Smt. Periyakkal v. Smt. Dakshyani, (1983) 2 SCR 467 : (AIR 1983 SC
428) relied upon by the respondents, this Court thus observed :
"Of course, time would not be extended ordinarily, nor for the mere asking. It would be granted in rare cases to prevent manifest injustice. True, the court would not rewrite a contract between the parties but the court would relieve against a forfeiture clause...."
In the present case, justice is manifestly in favour of the plaintiffs and against the contesting respondents and further the clause in question was not a forfeiture clause. Even the High Court had to observe as follows:
"The conduct of the appellant (i.e. the defendant no. 9) is indeed very reprehensible. Though extensions were obtained from us, he did not comply with the directions and suffered order No. 72 dated 17.8.1981 to be passed. Only when his rights were taken away did he realise real effect of what he had lost".
In view of our conclusion it is not necessary to decide the abstract question of the general power of the court in this regard."
Having regard to those legal positions, we have to consider the matter whether the circumstances was beyond the control of the present applicants to complete the departmental proceeding. It is an admitted position that Mallabhum Gramin Bank who was directed to complete 7 the departmental proceeding suffered an order of amalgamation along with other four Banks for converging to a Central Bank under the name and style of "Bangiya Gramin Vikash Bank" and in view of the notification as issued, as already discussed, the "Bangiya Gramin Vikash Bank" only got the authority to complete the proceeding and/or other matters of the Banks which were amalgamated to form it. The service regulation of the employees as already referred to got its final seal as a regulation on 4th March, 2008.
Having regard to such state of affairs, we are of the view that the present applicant "Bangiya Gramin Vikash Bank" has faced the difficulty to complete the departmental proceeding as the framing of regulation was under process as would control the departmental proceeding. From the application it appears that different communications were made for publication of the regulation in the gazette and ultimately it was published. Since the extension of time is not within the substantive field of a judgement and it does not involve any new adjudicatory process for deciding any lis in between the parties but only a procedural matter and having regard to the contingency arose in view of amalgamation of the Bank and the framing of regulation subsequently, we are considering the grounds of delay to complete the proceeding as justified. To stop the departmental proceeding on technical ground of time limit practically will cause great injustice as the delinquent who is facing a departmental proceeding on the charge of irregularity in sanction of the loan which has a greater public interest so far as the banking transaction is concerned, will get a premium to come out from the clutches of the departmental proceeding without any final adjudication of the same on merit. Furthermore, as the departmental proceeding has already reached to the final stage of consideration of the decision by the disciplinary authority on perusing the enquiry report as filed by the Enquiring Officer and the objection as filed by the delinquent employee, we are of the view 8 that to stop the proceeding at this stage will cause not only injustice but will provide a premium to the delinquent employee on technical ground.
Having regard to such, this case could be considered as a rare case having regard to the views expressed in the case Smt. Sova Ray (supra) as relied upon by the learned Advocate for the delinquent employee to extend the time limit to complete the departmental proceeding. Beside such 'functus officio' doctrine has no applicability here, an extension of time is within procedural field.
Having regard to such, this application is accordingly allowed. Time limit is extended which will have an effect of such extension in continuation of the order dated 27th February, 2007 till a period of three months from this date.
It is clarified that for all purposes it will be deemed that time to complete the departmental proceeding as has been extended is on extension of time limit as passed in the order dated 27th February, 2007 by extending the past period also with effect from 27th February, 2007 as the application for extension was pending from that date.
It is further made clear that the extension of time limit to complete the departmental proceeding is limited only about the completion of departmental proceeding. The point of legality and validity of the departmental proceeding on the premises whether it has been done following the procedure of law, is kept open.
The application is allowed.
9Let Xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditiously.
(Pratap Kumar Ray, J.) I agree.
(Tapas Kumar Giri, J.)