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PETITIONER: STATE OF PUNJAB AND ANOTHER

       Vs.

RESPONDENT: SHAMLAL MURARI & ANR

DATE OF JUDGMENT06/10/1975

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. GUPTA, A.C.

CITATION:  1976 AIR 1177            1976 SCR  (2)  82  1976 SCC  (1) 719  CITATOR INFO :  F          1977 SC2221  (17)

ACT:      Letters Patent  Appeals under  clause 10-The Punjab and Haryana High Court Rules and orders, Vol. 5 Chapter 2-C-Rule 3-Core or  essence of the Rule-Rule is not mandatory for the purposes of entertaining the Letters Patent Appeal-Breach of the Rule  is only an irregularity-Interference, by the Court of Appeal  with the  discretionary  exercise of power should be exceptional  and only when there is something perverse or irrational in the exercise of that power.

HEADNOTE:      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 Registrar 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      While construing  the said  rule, the Full Bench of the Punjab and Haryana High Court in Bikram Das in The Financial Commissioner, Revenue,  Punjab, Chandigarh and others, A.I.R 1975 Punjab  and Haryana  1, held  that Rule  3 relating  to filing of Letters Patent Appeals is mandatory.      The appellant-State while preferring the Letters Patent Appeal against  the orders  of the  single Judge  holding in favour of  the respondent  that the denial of increments and certain other 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 and  with an  application for condonation of delay. The Court refused  to entertain  the appeal (1) following Bikram Das’s case  for non-compliance of Rule 3, and (ii) declining to exercise  its discretion  as regards the extension of the period of limitation and condonation of delay.      On appeal, by Special Leave, the State contended:      (1) that  the ratio  in Bikram  Das’s case  of the Full

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Bench of  Punjab and  Haryana High Court holding that Rule 3 relating to      (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 a Government servant for failure to pass the departmental test in spite  of exemption  having been  granted to him, was not bad in law.      Dismissing 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 Letters Patent Appeal of the  Punjab and Haryana High Court orders and Rules, Vol. 5. Chapter 2-C, in form strikes 83 mandatory. note  and, in  design, is  intended to facilitate plurality of  Judges hearing the appeal, equipped with a 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. In this sense, the needs of the Rule  transcend the  directory level  and may perhaps be considered a mandatory need [85 D-E].      (3) Even  taking a  stern view,  every minor  detail in Rule 3 cannot carry a compulsory or imperative import. Three copies would  certainly be   greater  advantage, but what is the core  of the  matter is not the number 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  be furnished, but that copies of all the three important documents referred to in that  rule. shall be produced. The Court, if it thinks it necessitous, 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 mandatory. If the breach can be corrected without injury to a just disposal of a case,  regulatory requirement should not be enthroned into a dominant  desideratum. Since courts are to do justice, not to wreck  this end  product on  technicalities even  what is regarded as  mandatory traditionally  may perhaps have to be moderated into  wholesome directions  to be complied with in time or in extended time [85 F-H].      In 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 a breach which  can   be  characterised  as  an  irregularity  to  be corrected  on   application  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 Das’s case is not correct. [86 B-C].      Bikram Das  v.  The  Financial  Commissioner,  Revenue, Punjab, Chandigarh  and Ors; A.I.R. 1975 Punjab & Haryana 1, over-ruled partly.      (4) Discretionary  exercise of  power by a Court can be interfered with  by a  Court of  Appeal only  when there  is something perverse  or irrational  in the  exercise. I n the

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instant case  there being nothing perverse or irrational the reluctance in interfering at the appellate level by the High Court by  declining to  exercise its discretion in condoning the delay  in compliance  with Rule  3  of  the  Punjab  and Haryana High  Court orders and Rules, Vol. 5, Chapter 2-C is normal and proper. [86 D-E]. OBITER:           (a)  Passing petty tests after a petrifying length                of dull official service is an odd insistence                except in important levels of work. [84 G]           (b)  The  use  of  "shall"  -a  work  of  slippery                semantics-in a  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                circumstances bearing  on the  importance  of                the  condition   are  considerations   before                condemning a  violation of  a rule  as fatal.                [85 E-F].           (c)   Processual law  is not  to be a tyrant but a                servant, not  an obstruction  but an  aid  to                justice. Procedural  prrescriptions  are  the                hand-maid and  not the mistress, a lubricant,                not a  resistant  in  the  administration  or                justice. [85 H, 86 A].

JUDGMENT:      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. 84      Kapil Sibal and O. P. Sharma, for the Appellants.      Y. C.  Mahajan and 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  involved-of  course,  with  their  consent  and preparedness.      The State,  the appellant,  has  urged  that  the  High Court’s judgment  is wrong  and our  conclusion rests  on  a 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, discussion  that follows. Brevity is not inconsistent with clarity and prolixity is not always or ever a virtue.      The first  fatal objection  to  the  Government’s  case stated in  the order  of the  High Court,  is the ratio in a Full  Bench   decision  in   Bikram  Das  v.  The  Financial Commissioner, Revenue, Punjab, Chandigarh and ors. (1) 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 directory-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 appellant. The  reluctance in  interfering, at the appellate level, with the exercise of the discretion by the High Court

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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 a 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 a 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 exemption. Passing petty tests  after a  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 a 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 1. 85 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  memorandum 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  a 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   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                hose judgment the appeal is preferred."      It is  true that, in form, the rule strikes a mandatory note and,  in design,  is intended to facilitate a plurality of judges  hearing the  appeal, each  equipped with a set of relevant papers. May be, there is force in the view taken by the Full Bench 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. In this sense,  the needs  of the  rule transcend the directory level and  may, perhaps, be considered a mandatory need. The use of  ’’shall’ -a  word of slippery semantics-in a 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 condemning a violation as fatal.      It is  obvious that  even taking  a stern  view,  every

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minor detail in r. 3 cannot carry a compulsory or imperative import. After all what is required for the Judges to dispose of the  appeal is the memorandum of appeal plus the judgment and the  paper book. Three copies would certainly be a 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 requires  three copies  and failure to comply therewith may be  an irregularity.  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 a breach which  can   be  characterised  as  an  irregularity  to  be corrected  by   condonation  on  application  by  the  party fulfilling the condition within a time allowed by the Court. We must  always remember  that processual law is not to be a tyrant but  a servant,  not an  obstruction but  an  aid  to justice. It 86 has been  wisely observed  that procedural prescriptions are the handmaid  and not  the  mistress,  a  lubricant,  not  a resistant in  the administration  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 without  injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After,  all Courts  are to  do justice,  not to wreck this  end product  on technicalities.  Viewed in  this perspective,   even    what   is   regarded   as   mandatory traditionally  may,  perhaps,  have  to  be  moderated  into wholesome directions  to be  complied with  in  time  or  in extended time.  Be that as it may, and ignoring for a 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 produced. We further feel that the Court should, if it thinks  it necessitous, exercise its discretion and grant further time  for formal  compliance 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 Bikram Dass’s(supra) case.      The State  has yet  another hurdle  in its  way. In the present case,  an application  for condonation  of delay  in filing the  three copies re queried by r. 3 was made and the Court, in  the exercise  of its  discretion, held  that such condonation should not be granted. Discretionary exercise of power by  a Court  cannot be  lightly interfered  with by  a Court of  appeal, and we are loathe, therefore, to upset the order of  the High  Court declining  to condone  the  delay, there being  nothing perverse or irrational in the exercise. In this  view also,  the appellant  has to  lose. For  these reasons, the appeal fails and is dismissed. There will be no order as to costs. S.R.                                       Appeal dismissed. 87