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2009 DIGILAW 277 (ORI)

Dhruba Charan Mohapatra v. State of Orissa

2009-03-27

S.C.PARIJA

body2009
JUDGMENT S. C. PARIJA, J. — This appeal is directed against the order dated 22.11.2008 passed by the State Education Tribunal, Orissa, Bhubaneswar, in G.I.A. Case No. 81 of 2008, rejecting the application of the appellant for non-fulfilment of the mandatory requirement of law regarding service of statutory notice. 2. The brief facts of the case is that the appellant had moved this Court in O.J.C. No.8475 of 2001, challenging the order of recovery from his salary. This Court by order dated 18.02.2008 disposed of the writ application by passing the following order : “We dispose of the writ petition as withdrawn and observe that within two weeks if the petitioner files application under Section 24-B of the Act together with applications under Section 5 read with Section 14 of the Limitation Act for condonation of delay and waiver of statutory notice, then learned Education Tribunal may do well to consider such interim applications liber¬ally in view of the fact that the writ petition was filed on 05.07.2001 and copy of the writ petition was served on the coun¬sel for the State and thereafter application under Section 24-B of the Act be considered in accordance with law.” 3. Pursuant to the aforesaid order/direction of this Court, the appellant filed GIA Case No. 81 of 2008 before the State Education Tribunal Orissa, Bhubaneswar, under Section 24-B of the Orissa Education Act, 1969 (“the Act” for short), along with application for waiver of statutory notice and an applica¬tion for condonation of delay. 4. The Tribunal took up the matter for admission and by order dated 22.11.2008 proceeded to reject the application for non-compliance of the statutory provisions prescribed for service of notice under Section 24-B(3) of the Act. The relevant findings of the order of the learned Tribunal is extracted below : “The mandate of law in Section 24-B(3) of the Orissa Educa¬tion Act, 1969 which the reading of provision makes clear is that no application for grant-in-aid before the Tribunal against the State Govt. or any Officer or Authority of Govt. shall be admit¬ted (emphasis laid) unless the applicant serves a notice on them and the period of two months expires from the date of receipt of such notice. The use of the words “shall” in the proviso to Sec¬tion 24-B(3) of the Orissa Education Act, 1969 indicates that the requirement is mandatory. or any Officer or Authority of Govt. shall be admit¬ted (emphasis laid) unless the applicant serves a notice on them and the period of two months expires from the date of receipt of such notice. The use of the words “shall” in the proviso to Sec¬tion 24-B(3) of the Orissa Education Act, 1969 indicates that the requirement is mandatory. The obvious purpose underlying such provision is salutary in as much as the State and its public functionaries are not dragged into avoidable litigation before getting reasonable scope to sort out the matter at their level before-hand. The Section does not allow any discretion to the Tribunal to waive this requirement of service of notice under any contingency alike a Civil Court U/S 80(2) of Code of Civil Proce¬dure. The order also does not authorize the Tribunal to altogeth¬er ignore the aspect of service of notice, but requires it to consider the matter of service of notice in accordance with law. Since the provision of law in Section 24-B of the Orissa Educa¬tion Act, 1969 does not clothe Tribunal even with the semblance of discretion in the matter of waiver of statutory notice, this Tribunal even making a liberal construction of the provision finds its difficult to waive the service of statutory notice. Therefore, the submission of the learned counsel for the Appli¬cant is not tenable at all, more so, when there is total dearth of material to show service of notice besides on the State of Orissa, on two other Officers, Authorities, such as, O.P. Nos. 2 & 3. As the relief sought for in the application is not divisible against the individual O.Ps., the application is rejected for non-fulfilment of the mandatory requirement of law regarding service of statutory notice.” 5. Learned counsel for the appellant submits that as this Court by order dated 18.02.2008 had permitted the appellant to move the learned Tribunal under Section 24-B of the along with an application for condonation of delay and waiver of statutory notice, with a further observation that such interim application shall be considered liberally, in view of the fact that copy of the writ application has been served on the counsel for the State, it was not open for the learned Tribunal to reject the appeal on the ground of non-service of statutory notice, as provided under Section 24-B(3) of the Act. In this regard, it is submitted that as the provision for service of notice is a ques¬tion of procedure and not a substantive law, the rejection of the application by the learned Tribunal on the ground that the same amounts to non-compliance of mandatory provision is erroneous and misconceived. It is also submitted that as the appellant had filed the writ application (O.J.C. No.8475 of 2001), serving copy of the same on the counsel for the State and on the direction of this Court, the appellant had filed the application before the learned Tribunal under Section 24-B of the Act along with appro¬priate application for condonation of delay and waiver of statu¬tory notice, the learned Tribunal should have considered the same liberally and waived the requirement of statutory notice, espe¬cially when the State had prior notice of the same and there was substantive compliance of the said provision. 6. Learned counsel for the State submits that as the requirement of Section 24-B(3) proviso is a mandatory requirement of law, the non-compliance of the same cannot be waived or con¬doned and therefore the learned Tribunal was right in rejecting the application of the appellant, for non-fulfilment of the mandatory requirements, regarding service of statutory notice. 7. The proviso to Section 24-B(3) of the Act reads as under : “Provided that no application before the Tribunal seeking a claim of grant-in-aid against the State Government or any officer or authority of the said Government shall be admitted, unless the applicant has served a notice on the State Government or con¬cerned officer or authority furnishing the details of the claim and a period of two months has expired from the date of receipt of the said notice by the State Government or, as the case may be, the concerned officer or authority.” 8. From the above provision it is abundantly clear that such procedural requirement has been prescribed for providing the State Government with a prior notice with regard to the claims of a party, so that the matter may be settled without approaching the Tribunal. The entire object of such a notice to the State Government or concerned officer or authority is only for provid¬ing an opportunity to the concerned authorities to consider the claim of the party and decide as to whether such claim should be accepted or not. 9. The entire object of such a notice to the State Government or concerned officer or authority is only for provid¬ing an opportunity to the concerned authorities to consider the claim of the party and decide as to whether such claim should be accepted or not. 9. The apex Court in the case of State of Punjab and another -vrs- Shamlal Murari and another, AIR 1976 SC 1177 , while considering the need of complying with procedural provision, observed as under : “xx xx xx. 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 prescrip¬tions are the hand-maid 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 preju¬dice doing of justice to parties, the rule is mandatory. But, grammer 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 moderate into wholesome directions to be complied with in time or in extended time. xx xx xx” 10. It is now well settled that whether a statute would be directory or mandatory will depend on the scheme thereof and ordinarily a procedural provision would not be mandatory even if the work “shall” is employed therein unless a prejudice is caused. See P. T. Rajan V. T. P. M. Sahir and others, (2003) 8 SCC 498 . 11. Even a mandatory provision having regard to the text and context of the statute may not call for strict construction or compliance. Ordinarily, although the word “shall” is consid¬ered to be imperative in nature but it has to be interpreted as directory if the context or the intention otherwise demands, as has been observed in the case of Sainik Motors -vrs- State of Rajasthan, AIR 1961 SC 1480 . 12. Ordinarily, although the word “shall” is consid¬ered to be imperative in nature but it has to be interpreted as directory if the context or the intention otherwise demands, as has been observed in the case of Sainik Motors -vrs- State of Rajasthan, AIR 1961 SC 1480 . 12. It has been reiterated by the apex Court in the case of Mohan Singh and Others -vrs- International Airport Authority of India and others, (1997) 9 SCC 132 , that the distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, purpose and effect. The scope and language of the statute and consideration of policy at times, however, create ex¬ception showing that the legislature did not intend a remedy to be exclusive. Therefore it is necessary to ascertain the inten¬tion and the word “shall” is not always decisive. Regard must be had to the context, subject matter and object of the statutory provision in question, in determining whether the same is manda¬tory or directory. No universal principle of law can be laid down in that behalf as to whether the particular provision or enact¬ment shall be considered mandatory or directory. It is the duty of the Court to try to get at the real intention of the legisla¬ture by carefully analysing the whole scope of the statute or the section or a phrase under consideration. 13. In a subsequent 3-Judge Bench of the apex Court, in the case of Kailash -vrs- Nankhu and others, (2005) 4 SCC 480 , the Hon’ble Court while interpreting Order 8, Rule 1 of the Code of Civil Procedure, was of the opinion : “As stated earlier, Order 8 Rule 1 is a provision contained in CPC and hence belongs to the domain of procedural law. Another feature noticeable in the language of Order 8 Rule 1 is that al¬though it appoints a time within which the written statement has to be presented and also restricts the power of the Court by employing language couched in a negative way that the extension of time appointed for filing the written statement was not to be later than 90 days from the date of service of summons yet it does not in itself provide for penal consequences to follow if the time schedule, as laid down, is not observed. From these two features certain consequences follow.” The aforementioned decisions have been referred to and reit¬erated in a subsequent decision of the apex Court in the case of M/s. Dove Investments Pvt. Ltd. and others -vrs- M/s. Gujrat Industrial Investment Corporation and another, AIR 2006 SC 1454 , wherein the Hon’ble Court observed that even if a statute is directory in nature, the same should be substantially complied with. What would satisfy the requirements of substantial compli¬ance, however, would depend upon the facts of the case. Whether a particular provision in a statute would be manda¬tory or is merely directory came up for consideration in a recent decision of the apex Court in the case of Bachahan Devi and another -vrs- Nagar Nigam, Gorakhpur and another, (2008) 12 SCC 372 , wherein the Hon’ble Court observed as under: “The question, whether a particular provision of statute, which, on the face of it, appears mandatory in as much as it used the word “shall”, or is merely directory, cannot be resolved by laying down any general rule, but depends upon the facts of each case particularly on a consideration of the purpose and object of the enactment in making the provision. To ascertain the inten¬tion, the court has to examine carefully the object of the stat¬ute, consequence that may follow from insisting on a strict ob¬servance of the particular provision and, above all, the general scheme of the other provisions of which it forms a part. The pur¬pose for which the provision has been made, the object to be attained, the intention of the legislature in making the provi¬sion, the serious in connivance or injustice which may result in treating the provision one way or the other, the relation of the provision to other consideration which may arise on the facts of any particular case, have all to be taken into account in arriving at the conclusion whether the provision is mandatory or directo¬ry. Two main considerations for regarding a rule as directory are: (i) absence of any provision for the contingency of any particular rule not being complied with or followed, and (ii) serious general in convenience and prejudice to the general public would result if the act in question is declared invalid for non-compliance with the particular rule.” 14. Two main considerations for regarding a rule as directory are: (i) absence of any provision for the contingency of any particular rule not being complied with or followed, and (ii) serious general in convenience and prejudice to the general public would result if the act in question is declared invalid for non-compliance with the particular rule.” 14. On an analysis of the principles of law discussed above, the obvious conclusion is that a procedural provision prescribed in a statute is not intended to act as an obstruction but an aid to justice. Such a procedural provision, in most cases, irrespective of the language used, would be directory, unless any serious prejudice is caused to a party, due to non-compliance of such a provision. A procedural provision in a stat¬ute is meant to be a useful servant rather than a dangerous mas¬ter. Procedural provisions are prescribed in a statute to facili¬tate smooth and efficient operation of the statute and not to thwart or obstruct the administration of justice and thereby defeat the very object of the statute. 15. In the present case, the object and purpose of the proviso to Section 24-B(3) of the Act is intended to provide the State Government or its functionaries with a prior notice, re¬garding the claims of a party. The non-compliance of such a provision cannot be said to be a fundamental or a fatal breach of the mandatory provisions but a mere technical or venial infrac¬tion of a procedural requirement. Moreover, as the appellant had earlier filed writ application (O.J.C.No. 8475 of 2001), with copy to the State and the same had been disposed of by this Court by order dated 18.02.2008, permitting the appellant to withdraw the writ application and move the learned Tribunal under Section 24-B of the Act, it cannot be said that the State Government or its functionaries had no prior notice of the appellant’s claim. Further this Court having also permitted the appellant to file application for condonation of delay and waiver of statutory notice, with the observation that the learned Tribunal to consid¬er the same liberally, in view of the fact that the writ applica¬tion was filed way back on 5.7.2001 and copy of the writ petition was served on the counsel for the State, learned Tribunal was not justified in rejecting the same on the ground of non-service of statutory notice. In any case, the copy of the writ application having been served on the counsel for the State, it had prior notice of the subject matter of the application filed by the appellant under Section 24-B of the Act and therefore there was substantial compliance of the procedural provision regarding service of prior notice. 16. Applying the principles of law as discussed above to the facts of the present case, the impugned order cannot be sustained and the same is set aside. The matter is remitted back to the Tribunal to consider the appellant’s application under Section 24-B of the Act on merit and dispose of the same, in accordance with law, after due and proper notice to the parties. The writ petition is accordingly allowed. Petition allowed.