State of Punjab and Another v. Shamlal Murari & Anr,
KRISHNA IYER, J. Having granted special leave we have heard
counsel on both sides in this appeal right away on all the points in- jl
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 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, discuss.ion 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 cali.e 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.,(') 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 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 exemp
tion. 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 I.
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PUNJAB v. SHAMLAL (Krishna Iyer, !.) 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 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 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 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 a ma\.1datory note and,
in design, is intended to facilitate a pluarlity of judges hearing the ap
peal, 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
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, E
the. needs of the rule transcend the. directory level and may, perhaps,
be considered a mandatory need. The use of 'shall' _;a word of slip-
pery 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 condemn-
ing a violation as fatal. F
It is obvious that even taking a stem view, every minor detail
in r. ~ cann?t carry a 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 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 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 a breach which can be
characterised as an irregularity to be corrected by condonation on ap
plication 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
has been wisely observed that procedural prescriptions are the hand
maid and not the mistress, a lubricant, not a 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 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 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 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 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 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 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.
S.R. Appeal dismissed.
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