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“7. Yet there is another aspect of the matter which cannot be lost sight of. It is a well-settled principle that if a thing is required to be done by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences therefor are specified. In Sutherland’s Statutory Construction, 3rd Edn., Vol. 3, at p. 107, it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow non-compliance with the provision. At p. 111 it is stated as follows:
40) In other words, it is not mandatory for the Bank to necessarily complete all the formalities before the due date specified in the clause and if the Bank fails to do it within the time but completes the formalities after the specified date, it would be permissible for the Bank to do so and the act so done would be regarded as being in conformity with the requirement of the Scheme.
41) This we say for several reasons. Firstly, the Scheme does not provide any consequence as to what would follow, if the Bank does not ensure compliance within the time fixed in the clause. Secondly, the appellant being a private individual, if he is required to do some act within a specified time prescribed in the Scheme then it is mandatory for him to do so within the time specified. Thirdly, the Bank being a public functionary is required to perform public functions and hence while discharging such functions, if the Scheme has not provided any consequence for non-compliance of the act within time, then the Scheme would not be construed as mandatory but it would be construed as directory insofar as the Bank is concerned. Fourthly, since the Scheme has not provided for accrual of any benefit in employee's favour by "deeming fiction” in the event of non-compliance on the part of the Bank then no such benefit can accrue in favour of an employee automatically by fiction as a result of any non-compliance. In other words, in order to enable an employee to claim any benefit by "deeming fiction" on account of non-compliance of any act by the Bank under the Scheme, it is necessary for the employee to show that the Scheme contains a clause for conferral of such benefit on the employee by “deeming fiction”. There is no such clause in the Scheme and lastly, when the Scheme has provided that the voluntary retirement of any employee would come into effect only when the order is passed on the application of an employee then there is no question of any application being accepted by "deeming fiction". In other words, when the Scheme has provided passing of a specific order by the Bank for accepting the application for voluntary retirement then the application cannot be held as accepted by “deeming fiction”.