Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 1081 (CAL)

Nirmal Kumar Sen v. Lt. Governor

2010-08-27

DIPANKAR DATTA

body2010
JUDGMENT Dipankar Datta, J. 1. CHALLENGE in this writ petition is to the order dated 28th August, 2006 of the Administrator, Andaman and Nicobar Islands, being the appellate authority, confirming the order passed by the Registrar of Co-operative Societies, Andaman and Nicobar Islands (hereafter the Registrar) dated 16.08.2002, and thereby rejecting the appeal preferred by the petitioner under Section 68 of the Andaman and Nicobar Islands Cooperative Societies Regulation, 1973 (hereafter the Regulation). By the order dated 16th August, 2002, the Registrar had initiated proceedings against the petitioner under Section 54 of the Regulation. He made an order of surcharge directing the petitioner to make good an amount of Rs.1,54,251/- towards the loss caused to the Andaman and Nicobar State Co-operative Bank Limited, Port Blair (hereafter the Bank) on account of reversal of entry in the overdraft account of M/s. Classic Enterprises (in which Shri Tapan Sen, son of the petitioner was a partner). The petitioner was also directed to make good to the Bank an amount of Rs.370.19 lakh within two months from date of communication of the order, failing which liberty was reserved to the Co-operative Department for initiation of execution proceedings in accordance with the Regulation and the rules framed thereunder. 2. SINCE this writ petition has been prefaced by three previous writ petitions and two writ appeals and it is being heard on remand, it would be appropriate to give a composite picture of the facts involved herein. The petitioner was the Managing Director of the Bank. The Registrar by an order dated 1st November, 1993 had directed Shri Justine Periera, Auditor to investigate into the various financial irregularities committed by the petitioner including sanctioning of excess over the overdraft limit. Report submitted by Shri Periera on 12th January, 1994, revealed a serious state of affairs in the Bank. Even the audit for the year 1992-93 of the Bank, conducted by the said Shri Periera and his report dated 7th March.1994 pointed to financial irregularities. These were followed by further inspection and inquiry for the purpose of fixing responsibility. The report of inquiry submitted on 23.8.1994 once again reflected substantial financial irregularities. 3. BASED on such inquiry report, the petitioner was suspended from service in contemplation of disciplinary proceedings on 10th November, 1993. Disciplinary proceedings commenced against the petitioner by issuance of charge sheet dated 24th September, 1994 containing several charges. The report of inquiry submitted on 23.8.1994 once again reflected substantial financial irregularities. 3. BASED on such inquiry report, the petitioner was suspended from service in contemplation of disciplinary proceedings on 10th November, 1993. Disciplinary proceedings commenced against the petitioner by issuance of charge sheet dated 24th September, 1994 containing several charges. However, on attaining the age of superannuation, he retired from service on 30th September, 1994. Questioning continuance of the disciplinary proceedings against him after retirement, the petitioner approached the writ court by filing a petition, registered as C.O. No. 2020 (W) of 1995. While admitting the writ petition, a learned Judge granted the respondents liberty to continue the proceedings but ordered that no final order shall be passed without obtaining leave. The respondents were also directed to pay all lawful dues to the petitioner including arrears of salary and subsistence allowances in accordance with law. 4. A contempt petition was filed by the petitioner alleging countumacious acts on the part of the respondents in not releasing his dues in terms of the said interim order. While the writ petition and the contempt petition were pending, the inquiry that was conducted in connection with the disciplinary proceedings against the petitioner resulted in submission of a report holding the petitioner guilty of several charges leveled against him. However, no penal order could be passed against the petitioner in view of the order of injunction. Ultimately, the writ petition and the contempt petition were listed for hearing before Hon'ble S.B. Sinha, J. (as his Lordship then was). By judgment and order dated 2nd August, 1996, His Lordship disposed of the writ petition. It was, inter alia, held as follows:- "Admittedly, the entire disciplinary proceedings as against the petitioner was illegal. In the order dated 10.2.95 this court referred to the aforesaid 2 decisions which are authorities for the proposition that after the relationship of master and servant ceases, a disciplinary proceedings cannot continue unless there exists any rule contrary thereto. No such rule, according to Mr. Roy exists. Even there does not exist any pension rule. In this view of the matter, continuance of the disciplinary proceedings as against the petitioner, after his superannuation cannot be sustained. No such rule, according to Mr. Roy exists. Even there does not exist any pension rule. In this view of the matter, continuance of the disciplinary proceedings as against the petitioner, after his superannuation cannot be sustained. However, there cannot be any doubt whatsoever that it would be open to the respondents to initiate any surcharge proceedings in terms of Rule 54 of the Andaman and Nicobar Islands Co-operative Societies Regulation, 1973 and other persons responsible, if any. The respondents may, therefore pay on to the petitioner all the legal dues as may be payable to him subject to any action that might have been or may be taken against him in future in terms of the aforementioned Regulation. Such amount shall be paid at an early date and preferably within a period of 2 months from the date herein. 5. IN this view of the matter and in view of the stand taken by the respondents, subject to the right of the bank to take such action or actions as against the petitioner as is permissible in law, I am of the opinion that the contempt matter need not be proceeded with, any further. The Rule issued in the contempt matter is discharged. The writ application is also disposed of with the aforementioned observations and directions. 6. THE respondents did not prefer any writ appeal and consequently the judgment and order dated 2nd August, 1996 attained finality. The Chairman of the Bank having regard to the observations made therein, however, by his letter dated 6th September, 1996 requested the Registrar to initiate surcharge proceedings against the petitioner in terms of Section 54 of the Regulation to recover a sum of Rs.1,69,873.15, being the sum waived by the petitioner from the overdraft account of his son without any justification or approval of the committee [defined in Section 2(c) of the Regulation]. More than three years after the request of the Chairman, the Registrar passed an order dated 7th October, 1999. He considered it necessary to initiate surcharge proceedings against the petitioner on the following points:- 7. THAT Shri N.K. Sen did not exercise any vigilance or control on issue of excess overdraft sanctioned over and above the limit which had a long list likely to become had and doubtful debt. 8. THAT he waived out interest in respect of his son's accounts amounting to Rs. THAT Shri N.K. Sen did not exercise any vigilance or control on issue of excess overdraft sanctioned over and above the limit which had a long list likely to become had and doubtful debt. 8. THAT he waived out interest in respect of his son's accounts amounting to Rs. 1,69,873.15 on his own motion without any justification or approval of the Committee. Shri Ramnath Choudhury, Deputy Registrar of Co-operative Societies (Audit), Port Blair was appointed as the Inquiry Officer to initiate inquiry in connection with the surcharge proceedings on the aforesaid points and submit his report within a period of 30 days from date of receipt of such order. Shri Choudhury submitted his report of inquiry on 4th April, 2000 holding that charges 1 and 2 specified in the order dated 7th October, 1999 had been established. The contention raised by the petitioner that the proceedings were incompetent was found to be untenable by the Inquiry Officer. His report was placed before the Registrar who ultimately disposed of the proceedings by the order dated 16th August, 2002, referred to above. The petitioner challenged the order of the Registrar by filing an application under Section 68 of the Regulation. In terms of Section 68, the application was in effect an appeal. By an order dated 17th May, 2003, the appeal was dismissed by the appellate authority. The petitioner questioned the appellate order confirming the original order by filing writ petition, registered as W.P. No. 135 of 2004. By judgment and order dated 10th June, 2004, Hon'ble Kalyan Jyoti Sengupta, J. set aside the order of the appellate authority and remanded the appeal for de-novo hearing in accordance with law upon giving reasonable opportunity of hearing to the petitioner. The appeal was directed to be disposed of within a period of 12 (twelve) weeks from the date of communication of the order. The petitioner preferred an intra-court appeal (MAT No. 10 of 2004) against the said judgment and order. The Division Bench (cor. Hon'ble Bhaskar Bhattacharya and Hon'ble Indira Banerjee, JJ.) found no reason to interfere with the order impugned. The petitioner preferred an intra-court appeal (MAT No. 10 of 2004) against the said judgment and order. The Division Bench (cor. Hon'ble Bhaskar Bhattacharya and Hon'ble Indira Banerjee, JJ.) found no reason to interfere with the order impugned. The appeal was disposed of with a minor modification of the order impugned to the extent that the appellate authority shall dispose of the proceedings within three months from date and that after such period in the event of the petitioner praying for two consecutive adjournments, the authority shall be free to proceed ex-parte as ordered by the learned single judge. 9. ACTING in compliance with the order of the Division Bench, the appellate authority passed an order dated 3rd August, 2005. By furnishing reasons, he held the surcharge proceedings to be maintainable and not barred by the period of limitation. The appeal was rejected, being devoid of merit. It was directed that an amount of Rs.322.24 lakh should be recovered from the petitioner within a time period of three months from date by taking action in accordance with the provisions of the Regulation, the Rules framed thereunder and other laws of the land. 10. THE order of the appellate authority dated 3rd August, 2005 was again made the subject matter of challenge in a fresh writ petition, registered as W.P. No. 137 of 2005. It was disposed of by an order dated 22nd November, 2005 passed by Hon'ble Ashim Kumar Banerjee, J. The operative part of the order reads as follows:- "On the question of maintainability and limitation, I find that the appellate authority misconstrued the provisions relevant therefor. I do not wish to dilate on this, as I feel that further opportunity should be given to the appellate authority to go into the question afresh. I further reiterate that the appellate authority should first decide the issue of maintainability and limitation by assigning detailed reasons therefor and make it known to the parties before the matter is heard and disposed of on merits by him. 11. IT was in compliance with the said order dated 22nd November, 2005 that the appellate authority once again considered the appeal filed by the petitioner and rejected the same by the impugned order. 11. IT was in compliance with the said order dated 22nd November, 2005 that the appellate authority once again considered the appeal filed by the petitioner and rejected the same by the impugned order. IT has been held therein is as follows:- "After going through submission put forth by the parties the authority reached the conclusion that the surcharge proceeding ordered on 07/10/1999 was very much within the stipulated period of 6 years. The starting point of the case is the Annual Audit Report of the relevant period i.e. 1992-93 which was released on 07/04/1994 where certain irregularity and misappropriation of funds of AandN State Cooperative Bank Ltd were detected and after this there are series of action. The surcharge proceeding was to cover irregularity committed upto 10/11/1993 (date of suspension of Shri N.K. Sen) and surcharge proceedings was ordered on 07/10/1999 which is very much within 6 years. Now the question needs to be verified whether Shri N.K.Sen committed irregularity in between 07/10/1993 and 10/11/1993. As per records available, the last debt slip was issued by Shri N.K. Sen on 10/08/1993. Shri N.K. Sen did not initiate any action to rectify the irregularity and allowed to continue such irregularity till his date of superannuation i.e. on 30/09/1994 by way of omission and as such failed to discharge his duties while working as Managing Director of the Bank and due to his negligence the overdraft for an amount of Rs.370.17 lakhs become bad and non-recoverable which is subsequently reduced to Rs. 322.24 lakhs due to recovery effected as on 31/08/2005. Moreover, Shri N.K.Sen, Managing Director was not competent to allow such overdraft under the AandN Islands Co-operative Societies Regulation, 1973. Keeping in view the factors explained above, it is observed that the surcharge proceedings are maintainable and not barred by the period of limitation. 12. THEREFORE, I reject and dismiss the appeal and order for recovery of an amount of Rs. 322.24 lakhs from Shri N.K. Sen, Petitioner within a period of six months from the date of this order by taking action in accordance with the provisions of the Andaman and Nicobar Islands Cooperative Societies Regulations, 1973 and the Rules framed thereunder and other laws of the land. I had the occasion to admit the writ petition by order dated 28th February, 2007. I had the occasion to admit the writ petition by order dated 28th February, 2007. While calling for affidavits, I stayed the operation of the impugned order for a limited period and directed the writ petition to be listed for hearing on the day following expiry of the period fixed for exchanging affidavits. 13. ALTHOUGH, the order of injunction was limited till 2nd April, 2007, the petitioner did not pray for its extension. The writ petition was listed on several occasions between 22nd March, 2007 and 4th September, 2008. Ultimately, the petitioner filed an application for extension of interim order. I had the occasion to consider the application. By an order dated 21st November, 2008, a fresh interim order was passed staying operation of the order impugned till disposal of the writ petition and thereby the application was disposed of. The writ petition could not be taken up for consideration finally since it was the penultimate day of the current circuit and it was directed to be placed for hearing in the next circuit. 14. THE writ petition was finally considered by the learned Judge, next on circuit. Upon hearing the parties, the learned Judge allowed the writ petition. By judgment and order dated 2nd December, 2008, the impugned order was set aside primarily on the ground that the appellate authority did not adhere to the direction contained in the order dated 22nd November, 2005 passed by Hon'ble Ashim Kumar Banerjee, J. The appellate authority was again directed to decide the point of maintainability and limitation first and then make it known to the parties; only thereafter the other issues involved in the appeal were to be decided. He was further directed to dispose of the appeal within four months from the date of communication of the order by passing a reasoned order. The appellate authority preferred an intra-court appeal against the judgment and order dated 2nd December, 2008. The Division Bench (cor. Hon'ble Kalyan Jyoti Sengupta and Hon'ble Kalidas Mukherjee, JJ.) expressed surprise as to why it was at all necessary for the learned Judge to send back the matter for decision by the same person who had taken decision. According to the Division Bench, the learned Judge ought not to have remanded the matter. The Division Bench (cor. Hon'ble Kalyan Jyoti Sengupta and Hon'ble Kalidas Mukherjee, JJ.) expressed surprise as to why it was at all necessary for the learned Judge to send back the matter for decision by the same person who had taken decision. According to the Division Bench, the learned Judge ought not to have remanded the matter. It was observed that there are points which require adjudication and consideration by the writ court within the parameters of the power of judicial review and, accordingly, while setting aside the judgment and order under appeal, the writ petition was remanded for deciding it afresh as early as possible. 15. EVEN after the aforesaid order of the Division Bench, the writ petition was listed on six occasions before different learned Judges. On each and every occasion, prayers for adjournment were made and granted. Ultimately, the writ petition has again been listed before me for final hearing. 16. THE short point that has been urged by Mr. N.N.Adhikari, learned senior advocate appearing for the petitioner is that the proceedings initiated by the Registrar under Section 54 of the Regulation is clearly barred, since inquiry as contemplated therein was directed to be held by his order dated 7th October, 1999 after the expiry of six years from the date of alleged offending acts on the part of the petitioner; consequently, the proviso to Section 54(1) is attracted and, therefore, any order passed in connection with such proceedings on conclusion of inquiry ought to be held null and void. Mr. Bahadur, learned advocate appearing for the respondents 3 and 4 (the Bank and its Managing Director) contended that on conducting audit of the accounts of the bank for the financial year 1992-1993, the irregularities committed by the petitioner while he was functioning as the Managing Director of the Bank came to light. The audit report was submitted by the Auditor on 7th March, 1994 and, therefore, initiation of inquiry by the Registrar by his order dated 7th October, 1999 is well within the time frame referred to in the proviso to Section 54(1) of the Regulation. The order passed by the Registrar dated 16th August, 2002, since confirmed by the appellate authority by the order dated 28th August, 2006, according to him is unexceptionable. The order passed by the Registrar dated 16th August, 2002, since confirmed by the appellate authority by the order dated 28th August, 2006, according to him is unexceptionable. He further contended that the irregularities committed by the petitioner could only be detected on completion of audit and the date on which the Bank derived knowledge of commission of misdemeanour by the petitioner ought to be construed as the starting point for computing the period of six years within which inquiry, as is referred to in Section 54(1) of the Regulation, is to be commenced. Based thereon, it was submitted that the writ petition does not merit interference and is liable to be dismissed. 17. MR. Ray, learned senior advocate appearing for the appellate authority adopted the contention of MR. Bahadur. He urged the Court to supply casus omissus in the proviso for ironing out the creases. In addition, it was submitted by him that inquiry contemplated in Section 54(1) had in fact been conducted on the order of the Registrar which led to initiation of disciplinary proceedings against the petitioner. However, since the disciplinary proceedings stood quashed and liberty was granted by the order dated 2nd August, 1996 to proceed against the petitioner under Section 54 of the Regulation, the Registrar did not commit any illegality in conducting inquiry against the petitioner for the purpose of compensating the Bank for the loss suffered by it due to misdemeanour on the part of the petitioner. He too prayed for dismissal of the writ petition. 18. I have heard learned advocates for the parties. Decision on this petition hinges on proper interpretation of Section 54 of the Regulation. It would, therefore, be necessary to note what the same provides. Section 54 reads as under:- "54. He too prayed for dismissal of the writ petition. 18. I have heard learned advocates for the parties. Decision on this petition hinges on proper interpretation of Section 54 of the Regulation. It would, therefore, be necessary to note what the same provides. Section 54 reads as under:- "54. Surcharge (1) If in the course of an audit, inquiry, inspection or the winding up of a co-operative society, it is found that any person, who is or was entrusted with the organization or management of such society or who is or has at any time been an officer or an employee of the society, has made any payment contrary to this Regulation, the rules or the bye-laws or has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has misappropriated or fraudulently retained any money or other property belonging to such society, the Registrar may, of his own motion or on the application of the committee, liquidator or any creditor, inquire himself or direct any person authorized by him, by an order in writing in this behalf to inquire into the conduct of such person: Provided that no such inquiry shall be held after the expiry of six years from the date of any act or omission referred to in this sub-section. (2) Where an inquiry is made under sub-section (1), the Registrar may, after giving the person concerned an opportunity of being heard, make an order requiring him to repay or restore the money or property or any part thereof, with interest at such rate, or to pay contribution and costs or compensation to such extent, as the Registrar may consider just and equitable." My understanding of Section 54 is that an inquiry may be directed by the Registrar on his own motion or on the application of the committee, liquidator or any creditor if in the course of an audit, inquiry, inspection or the winding up of a co-operative society, it is found that any person of the nature mentioned therein has either (i) made any payment contrary to the Regulation/rules or the bye-laws; (ii) caused any deficiency in the assets of the society by breach of trust or wilful negligence; or (iii) has misappropriated or fraudulently retained any money or other property belonging to such society. If any of these three elements of misdemeanour is, prima-facie, detected, the Registrar has the power to inquire himself or to authorize any person by an order in writing to inquire into the conduct of such person. An order for surcharge may be made by the Registrar after extending opportunity of defence to the delinquent. 19. THE proviso to Section 54(1), however, mandates that no such inquiry shall be held after the expiry of six years from the date of any act or omission referred to therein. 20. LEARNED advocates for the respondents have rightly not joined issue on the point that the proviso being expressed in negative form, the provision is mandatory and not merely directory. The Bank's stand is that the time frame of six years must be counted from date of the audit report, which was made public in April, 1994 and, therefore, initiation of surcharge proceedings by the Registrar in October, 1999 is well within the prescribed time limit. The appellate authority, however, appears to be of the opinion that the surcharge proceedings would cover irregularity committed upto 10th November, 1993 i.e. the date when the petitioner was placed under suspension and, therefore, surcharge proceedings ordered on 7th October, 1993 is very much within 6 years. He further posed a question for verification as to whether the petitioner committed irregularity in between 7th October, 1993 and 10th November, 1993. On the basis of the available records, it was found that the last debt slip was issued by the petitioner on 10th August, 1993, and finding was returned to the effect that the petitioner did not initiate any action to rectify the irregularity and allowed to continue such irregularity till his date of superannuation i.e. on 30th September, 1994, by way of omission and as such failed to discharge his duties attracting surcharge proceedings. On the contrary, the petitioner has relied on the affidavit-inopposition filed on behalf of the Bank wherein it has been stated that the petitioner committed irregularities on 26th May, 1993. The plea is that the period of six months must, therefore, be counted from 26th May, 1993 and not from any subsequent date; so counted, the order of the Registrar initiating surcharge proceedings must be held to be time-barred. 21. The plea is that the period of six months must, therefore, be counted from 26th May, 1993 and not from any subsequent date; so counted, the order of the Registrar initiating surcharge proceedings must be held to be time-barred. 21. I am not oblivious of the purposive approach adopted by Lord Denning to the interpretation of a word used in the statute in Seaford Court Estates Ltd. v. Asher, (1949) 2 All E R 155 (CA), where it was held: "The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature.... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases. (underlining for emphasis by me) 22. I have noted that this statement of law has been consistently followed by the Supreme Court in M. Pentiah v. Muddala Veeramallappa, AIR 1961 SC1107, S. Gopal Reddy v. State of A.P., (1996) 4 SCC 596 , and Ahmedabad Municipal Corporation v. Nilaybhai R. Thakore, (1999) 8 SCC 139 . (underlining for emphasis by me) 22. I have noted that this statement of law has been consistently followed by the Supreme Court in M. Pentiah v. Muddala Veeramallappa, AIR 1961 SC1107, S. Gopal Reddy v. State of A.P., (1996) 4 SCC 596 , and Ahmedabad Municipal Corporation v. Nilaybhai R. Thakore, (1999) 8 SCC 139 . However, in the decision of the Supreme Court in V. Jagannadha Rao v. State of A.P., (2001) 10 SCC 401 , I find an enlightening discussion on interpretation of statutes, which I quote below : "18. No provision or word in a statute has to be read in isolation. In fact, the statute has to be read as a whole. A statute is an edict of the legislature. The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid as to what has been said as also to what has not been said [See Mohd. Ali Khan v. CWT, (1997) 3 SCC 511 and Institute of Chartered Accountants of India v. Price Waterhouse, (1997) 6 SCC 312 .] As a consequence a construction which requires for its support addition or substitution of words or which resorts to rejection of words as meaningless, has to be avoided. As stated by the Privy Council in Robert Wigram Crawford v. Richard Spooner, (1846) 6 Moore PCC 1,: 'We cannot aid the legislature's defective phrasing of an Act, we cannot add or mend and, by construction make deficiencies which are left there.' The aforesaid decision was referred to by this Court in State of Gujarat v. Dilipbhai Nathjibhai Patel, (1998) 3 SCC 234 . It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so [See Stock v. Frank Jones (Tipton) Ltd., (1978) All ER 948 (HL)]. Similarly, it is wrong and dangerous to proceed by substituting some other words for words of the statute [See Pinner v. Everett, (1969) 3 All ER 257 (HL)]. In other words, there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary for deciding a particular case. Much trouble is made by substituting other phrases assumed to be equivalent, which then are reasoned from as if they were in the Act. In other words, there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary for deciding a particular case. Much trouble is made by substituting other phrases assumed to be equivalent, which then are reasoned from as if they were in the Act. In Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323, it was observed that the court cannot reframe the legislation for the very good reason that it has no power to legislate. It is incumbent on the court to avoid the construction if reasonably permissible on the language which would render a part of the statute devoid of any meaning or application. In the interpretation of statutes, the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have an effect. (underlining for emphasis by me) Keeping in mind the above principles, I shall proceed to decide the contentious issue. In the event the reasoning of the appellate authority and the common argument of Mr. Bahadur and Mr. Ray are to be accepted, I have to read words in the proviso and in the following manner: 'provided that no such inquiry shall be held after the expiry of six years from the date of detection of any act or omission referred to in this subsection'. 23. I am afraid, the proviso is worded in plain, simple and unambiguous words and reading the words 'of detection' therein as illustrated above would amount to legislation by the Court contrary to the intention of the framer of the Regulation. Judicial legislation may be permissible when literal reading of parliamentary legislation results in manifest absurdity, and casus omissus may be supplied in case of clear necessity. The Supreme Court in number of decided cases has cautioned that a casus omissus ought not to be created by interpretation, save in some case of strong necessity. Literal reading of the proviso in question does not, in my view, produce absurd results. The proviso clearly postulates that an inquiry as is permitted by sub-section (1) of Section 54 must commence within six years from the date the offending act referred to therein has been committed. Literal reading of the proviso in question does not, in my view, produce absurd results. The proviso clearly postulates that an inquiry as is permitted by sub-section (1) of Section 54 must commence within six years from the date the offending act referred to therein has been committed. To read additional words in the proviso for postponing the starting point of the period of six months to the date of detection of acts of omission/commission referred to in sub-section (1) would tantamount to altering the material of which the statute is woven and not merely in ironing out the creases. 24. THE foundational rule of statutory interpretation is that the statute must be consistent with constitutional provisions, viz. Article 14, Article 21, etc. If the proviso is given a broader interpretation to extend the coverage of surcharge proceedings, as suggested by learned advocates for the respondents, the same would clearly be inconsistent with Articles 14 and 21. To cite an example, if an offending act, for which proceedings under Section 54(1) of the Regulation could legitimately be initiated, is committed in a particular day of the year 1980 by a delinquent but the said offending act is detected in 2000, it is preposterous to suggest that proceedings under Section 54, even if it is initiated in 2005, would be maintainable. To hold such proceedings to be not time barred, the proviso has to be re-written and that would amount to granting licence to initiate stale surcharge proceedings, which could not have been the object of the statute. Surcharge proceedings for recovery of money for causing loss are penal proceedings and, therefore, Section 54 ought to be interpreted as it is. The proviso limits the time within which proceedings are to be initiated by providing a time period of six years from the date of the offending act. The said period of six years is by far reasonable and in the event the proviso as interpreted by the respondents is upheld, that is fraught with the risk of resulting in its abuse, thereby prejudicing the person to be affected by such proceedings after long lapse of time. He may not have the relevant evidence at such a distant time to counter the charge. Abuse of power by an incumbent in the office of the Registrar to settle personal scores by initiating stale surcharge proceedings cannot also be ruled out. He may not have the relevant evidence at such a distant time to counter the charge. Abuse of power by an incumbent in the office of the Registrar to settle personal scores by initiating stale surcharge proceedings cannot also be ruled out. In my view, surcharge proceedings must be initiated with utmost expedition but not later than six years from the date the offending act(s) of the nature mentioned in Section 54(1) is/are committed. The attempt on the part of the Bank and the Registrar to count the time frame of six months starting with the auditor's report appears to me to be indefensible. Equally indefensible is the reasoning of the appellate authority. Surcharge proceedings were initiated by the Registrar in respect of the two charges quoted supra. The Registrar did not fame any charge against the petitioner accusing him of culpable inaction or deliberate neglect to recover the loss caused to the Bank by reason of his unauthorized acts mentioned against charge 1, till the date of his suspension from service. In the absence of such charge, the appellate authority lacked the competence and authority to view the culpable inaction or deliberate neglect of the petitioner till 10th November, 1993, when he was suspended from service, as an act of delinquency covered by Section He could not have traveled beyond the charge. Moreover, in respect of charge 2, irregularity was committed on 26th May, 1993. There appears to be a frantic attempt on the part of the respondents to bring the alleged offending acts within the coverage of Section 54 by uncalled for stretching of the proviso to impracticable limits owing to a very sensitive issue at stake, i.e. substantial public fund being siphoned off which in all likelihood may not be recovered. The appellate authority would be well advised to proceed against the wood peckers in the department who have done more harm to the society than the storms that regularly hit these islands. I have no hesitation to hold that the incumbent in the office of Registrar must have been hands in glove with the petitioner, or else there is no plausible explanation as to why it took him more than three years from date of receipt of the request of the Chairman of the Bank to initiate surcharge proceedings. 25. I have also not be able to persuade myself to accept the contention of Mr. 25. I have also not be able to persuade myself to accept the contention of Mr. Ray that 'inquiry' referred to in the proviso relates to the 'inquiry' preceding the action that may be taken by the Registrar either suo-motu or on the application of the committee, liquidator or any creditor. 'Inquiry' referred to in the proviso necessarily relates to the inquiry directed by the Registrar upon tentative formation of opinion that a person of the nature mentioned in the sub-section has committed any of the three offending acts in respect of which he is liable to face proceedings for surcharge under Section 54(1) of the Regulation. 26. THE other contention of Mr. Ray that by order dated 2nd August, 1996 liberty was reserved to proceed against the petitioner and hence the surcharge proceedings are legal, valid and proper has failed to impress me. The Court in the concluding paragraph made it clear that proceedings permissible in law may be initiated. The order of Court, therefore, cannot be used as a shield to repel the challenge. The order of the appellate authority dated 28th December, 2006 confirming the order of the Registrar dated 16th August, 2002, holding the surcharge proceedings to be maintainable cannot be sustained in the eye of law. Accordingly, the original order of the Registrar and the appellate order of the Administrator stand set aside. The surcharge proceedings stand quashed. The writ petition is allowed. However, parties shall bear their own costs.