T.R. Ramachandran Nair, J.
W.P.(C) No. 28205 of 2010-A
Dated this the 19th day of November, 2010.
1. An appeal filed by the petitioner challenging the punishment imposed on him stands rejected by the Chancellor as per Ext.P5, stating that it is not admissible as per the rules. The objection raised regarding the admissibility of the appeal is that there is non-compliance of the provisions of Statute 56, Part III of Chapter IV of the Calicut University First Statutes, 1977, in filing the appeal.
2. Ext.P3 is the proceedings by which the Syndicate imposed a punishment of compulsory retirement on the petitioner who was functioning as Registrar of the University. Ext.P4 is the appeal filed before the Chancellor under Statute 52(b) read with Section 7(3) of the Calicut University Act.
3. Under the Statute, the appeal had to be presented before the authority which passed the order impugned in the appeal. The petitioner, after the receipt of Ext.P5, tried to salvage the situation by filing another appeal through the University along with a petition to condone the delay, as per Ext.P6. This was refused to be considered by the Syndicate by Ext.P6(a) on the plea that no appeal shall be entertained unless it is submitted within a period of 60 days of the receipt of the order appealed against. The application for condonation of delay was also rejected by Ext.P7, by the Chancellor.
4. Heard learned counsel for the petitioner Shri George Poonthottam, Shri P.C. Sasidharan, learned Standing Counsel for the University and learned Govt. Pleader.
5. Learned counsel for the petitioner mainly argued that the appeal presented before the proper forum, viz. the Chancellor, could not have been treated as not admissible, as per Ext.P5. It is pointed out that the non observance of the procedural provisions, if any, cannot render the appeal as not admissible. Such omissions or mistakes or procedural lapses cannot affect the appeal and its consideration. The matter ought to have been considered on merits by the Chancellor. Referring to the procedures prescribed under Part III of the Statutes, it is pointed out that the procedure for filing the appeal before the authority which passed the order, cannot be stated to be a mandatory one and there is substantial compliance of the Statutes in filing the appeal directly before the Chancellor. Further, it is pointed out that Section 7(3) of the University Act empowers the Chancellor to annul any proceedings of the authorities of the University and therefore in the light of such unlimited powers which are not curtailed by any other clauses of the statutes, the Chancellor has got ample powers to accept the appeal.
6. Shri P.C. Sasidharan, learned Standing Counsel for the University submitted that after the rejection of the appeal by the Chancellor as per Ext.P5, the petitioner opted to file another appeal through the University along with a petition for condonation of delay, especially by stating the reason that he was attending his son who met with an accident which caused the delay in filing the appeal. The said appeal was presented beyond the time prescribed by the Statute, viz. 60 days. There is no power to condone the delay. Therefore, the petitioner was informed that the request for condonation of delay itself was not admissible and that the appeal cannot be entertained. It is further pointed out that even the refusal to entertain the said appeal was taken by the petitioner before the Chancellor and the Syndicate also considered the matter in the light of legal opinion and took Ext.P8 resolution. Finally, it is submitted that since the said appeal itself was belated and found not entertainable, for all intends and purposes the same has attained a finality and therefore the jurisdiction under Article 226 of the Constitution of India could not have been invoked by the petitioner in the matter. He had opted to avail the remedy of filing appeal through the University and hence he should be deemed to have acquiesced with the communication Ext.P5 and the same cannot be independently challenged in the writ petition.
7. Section 7(3) of the Act is in the following terms:
"(3) The Chancellor may, by order in writing, annul any proceeding of any of the authorities or officers of the University which is not in conformity with this Act, the Statutes, the Ordinances, the Regulations, the rules or the Bye-laws;
Provided that, before making any such order, the Chancellor shall call upon such authority or officer to show cause why such an order should not be made and consider the cause, if any, shown by such authority or officer within a reasonable time."
The same confers wide power on the Chancellor to annul any proceeding of any of the authorities or officers of the University which is not in conformity with the Act, the Statutes, the Ordinances, the Regulations, the rules or the bye-laws. Statute 52(b) of Part III of Chapter IV of the Statutes is relevant here which provides that "an appeal from an order imposing a penalty by the Vice-Chancellor or the Syndicate shall lie to the Chancellor."
Statute 54 provides the period of limitation under which no appeal shall be entertained unless it is submitted within a period of 60 days of receipt of the order appealed against. Other relevant statutes are Statutes 55 to 60 which are extracted below for easy reference.
"55. Form and contents of appeal
Every person submitting an appeal shall do so separately and in his own name. The appeal shall be addressed to the authority to whom the appeal lies, shall contain all material statements and arguments on which the appellant relies, shall not contain any disrespectful or improper language, and shall be complete in itself.
56. Submission of appeals
Every appeal shall be submitted to the authority which made the order appealed against.
Provided that if such authority is not the head of the office in which the appellant may be serving or, if he is not in service, the head of the office in which he was last serving, or is not subordinate to the head of such office, the appeal shall be submitted to the head of such office, who shall forward it forthwith to the said authority:
Provided further that a copy of the appeal may be submitted direct to the appellate authority.
57. Withholding of appeals
The authority which made the order appealed against may withhold the appeal, if-
(i) it is an appeal against an order from which no appeal lies, or
(ii) it does not comply with any of the provisions of Statutes 55 and 56; or
(iii) it is not submitted within the period specified in Statute 56, or
(iv) it is repetition of an appeal already decided and no new facts or circumstances are adduced; or
(v) it is addressed to an authority to which no appeal lies under these Statutes:
Provided that an appeal withheld on the only ground that it does not comply with the provisions of Statutes 55 and 56 shall be returned to the appellant and, if re-submitted within one month thereof after compliance with the said provisions shall not be withheld.
58. Withholding of appeal to be communicated
Where an appeal is withheld, the appellant shall be informed of the fact and the reasons therefor. When the appeal is withheld the authority withholding the appeal shall forward a copy of the order communicated to the University employee to the appellate authority.
59. Transmission of appeals
The authority which made the order appealed against shall, without any avoidable delay, transmit to the appellate authority every appeal which is not withheld under Statute 58 with his comments thereon and the relevant records.
60. Appellate authority's power to call for appeals
The authority to which the appeal lies may direct transmission to him of an appeal withheld under Statute 57 and thereupon such appeals shall be transmitted to that authority together with the comments of the authority withholding the appeal and the relevant records."
8. Learned counsel for the petitioner submitted that Statute 56 will show that when an appeal is filed to the authority which made the order appealed against, it is also provided that a copy of the appeal may be submitted direct to the appellate authority. Herein, the appeal memorandum itself was submitted before the appellate authority, that too within time. It is pointed out that the submission of appeal to the authority which passed the order appealed against, can only be for enabling that authority to forward their comments, etc. in the matter. They cannot have any control in the admission of the appeal or in the matter of entertaining the appeal and therefore, herein, as the appeal has been presented directly to the appellate authority who alone is empowered with jurisdiction in the matter, there is substantial compliance in filing the appeal. It is further pointed out that the consequence of non submission of the appeal through the authority which passed the order appealed against, is not provided in Statute 56 and therefore in such cases it can only be termed as directory alone and hence it could not have the effect of nullifying the remedy of appeal itself.
9. Opposing the above arguments, Shri P.C. Sasidharan learned Standing Counsel submitted that Statute 57 provides for withholding of appeals by the authority which made the order appealed against, in certain contingencies and therefore the admission of the appeal is not automatic.
10. A detailed examination of the above Statutes will reveal the following: The forum for filing an appeal against the decision of the Syndicate is the Chancellor. Going by the form and contents of appeal as per Statute 55, it shall be addressed to the authority to whom the appeal lies. Even though Statute 57 provides for certain contingencies for withholding of appeals, the same can be done only if condition Nos.(i) to (v) therein are attracted. Statute 58 directs that the information regarding withholding of appeal should be furnished to the appellant. Statute 59 concerns Transmission of Appeals. Statute 60 is important which confers power on the appellate authority to call for appeals which are withheld. Going by the same, the appellate authority has got the power to direct the transmission of the appeal which is withheld and the lower authority will have to forward the appeal along with the documents and comments, etc. This shows that even if the lower authority is given a power to withhold the appeal in certain contingencies, power is conferred on the appellate authority to dispose of the appeal on merits after calling for the appeals.
11. The first question is whether the authority which passed the order on presentation of the appeal, can, in any manner, refuse to accept the same. It cannot. Herein, the appeal was addressed to the Chancellor and was filed directly before the Chancellor within time. Even in the case of submission of an appeal through the lower authority, a copy of the appeal has to be submitted direct to the appellate authority. The entire idea behind Statute 56 in submitting appeal to the authority which made the order appealed against, may be to transmit the appeal along with the comments and documents, as is clear from Statute 60. Even the power to withhold the appeal will not result in non entertainment of the appeal, since the power is given to the appellate authority to call for such appeals. Hence, the non compliance of these provisions, if any, cannot result in automatic rejection of the appeal, for technical reasons.
12. The legal principles in this regard have been re-stated by the Apex Court in various decisions. Learned counsel for the petitioner in this context, relied upon the principles laid down in the decisions of the Apex Court in Pratap Singh v. Krishna Gupta and others (AIR 1956 SC 140), United Bank of India v. Naresh Kumar and others {(1996) 6 SCC 660}, State of M.P. and another v. Pradeep Kumar and another{(2000) 7 SCC 372}, Uday Shankar Triyar v. Ram Kalewar Prasad Singh and another {(2006) 1 SCC 75) and Vidyawati Gupta and others v. Bhakti Hari Nayak and others {(2006) 2 SCC 777}.
13. A Constitution Bench of the Apex Court in Pratap Singh's case (AIR 1956 SC 140) considered the directory and mandatory nature of the rules. Para 3 of the judgment laid down thus:
"We do not think that is right and we depreciate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter: they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which is which judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines........."
Therefore, it is clear that it is the substance that counts and not the form.
14. In United Bank of India's case {(1996) 6 SCC 660}, the Apex Court was considering a question whether a suit for recovery of money filed by an appellant was properly instituted and whether the plaint was duly signed and verified by the competent person. While considering the question, it was laid down thus in para 9:
"In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable."
The principle that emerges from the above decision is that procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause as well as a substantive right.
15. Pradeep Kumar's case {(2000) 7 SCC 372}, was one where a memorandum of appeal was not accompanied by the application for condonation of delay. The argument was that the subsequent filing of the application cannot cure the irregularity. Therefore, the question was whether the application should have been filed along with the appeal. While considering the said question, the Apex Court in para 12 held thus:
"12. It is true that the pristine maxim vigilantibus non dormientibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights). But even a vigilant litigant is prone to commit mistakes. As the aphorism "to err is human" is more a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine." In para 13, the relevant principles stated in Crawford on Statutory Construction was relied upon by the Apex Court which is to the following effect:
"13. Crawford on Statutory Construction has stated thus at p.516. Article 261 in the 1940 Edn.:
"The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other."
It was noted that the said principle has been quoted with approval by the Apex Court in Govindlal Chhaganlal Patel v. Agricultural Produce Marketing Committee (AIR 1976 SC 263). Finally, on the merits of the matter, it was held that Rule 3-A in Order XLI of the C.P.C. cannot be said to be fatal and the deficiency is a curable defect. In Uday Shankar Triyar's case {(2006) 1 SCC 75}, it was held that "Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use." The exceptions of the said principle were also discussed therein. Para 17 wherein the above principles have been discussed, is extracted below:
"17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:
(i) where the statute prescribing the procedure, also prescribes specifically the consequence of non-compliance;
(ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
(iii) where the non-compliance or violation is proved to be deliberate or mischievous;
(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court;
(v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant."
Evidently, one of the exceptions is: "where the statute prescribing the procedure, also prescribes specifically the consequence of non-compliance" which is evidently absent in the Statute of the Calicut University First Statutes, 1977, viz. Statute 56.
16. In Vidyawati Gupta's case {(2006) 2 SCC 777}, Rule 1 of Calcutta High Court (Original Side) Rules and the effect of non compliance of the same was considered. In para 49 it was held that the non compliance of the said rule as well as Order 6 and Order 7 C.P.C. being procedural in nature, any omission in respect thereof will not render the plaint invalid and that such defect or omission will not only be curable but will also date back to the presentation of the plaint. Therefore, it can be seen that mere non compliance of the procedural provisions will not result in making the appeal herein not admissible.
17. Herein, I may refer to the decisions relied upon by the learned Standing Counsel for the University which specifically deal with the effect of the clause providing for limitation under the provisions of a special statute.
18. In the decision of a Full Bench of this Court in Jokkim Fernandez v. Amina Umma (1973 KLT 138), this Court considered the provisions of Section 18 of the Buildings (Lease & Rent Control) Act. It was held that the provisions of Section 18(1)(b) show that the above Act was meant to be a self-contained code in the matter of prescribing the periods of limitation and granting exemption therefrom.
19. In the decision in Kerala Fisheries Corporation v. P.S. John (1996 (1) KLT 814 (FB), the Full Bench considered the provisions of Section 32 of the State Financial Corporations Act and Sections 4 to 24 and 29(2) of the Limitation Act and held that the provisions in the former Act will prevail.
20. Another Division Bench of this Court in Kerala Motor Transport W.W.F. Board v. Government of Kerala (2001 (1) KLT 608), took the view that the appellate authority-Government is not entitled to entertain any appeal filed under Section 8(5) of the Act beyond the prescribed period of 60 days. It was noticed that "of the 18 enumerated matters, there is no reference to the filing of appeal or entertaining the same beyond the prescribed period" and finally it was held that "in the absence of any specific statutory provision, the appellate authority-Government is not entitled to entertain any appeal filed under Section 8(5) of the Act beyond the prescribed period of 60 days."
21. My attention was invited to the decision of a Division Bench of this Court in Assistant Commissioner of Central Excise v. Krishna Poduval (2005 (4) KLT 947) wherein it was held that "once the period of limitation has run itself out and the appellate authority does not have power to condone the delay in filing the appeals beyond the maximum period prescribed under the Act, the remedies come to an end just like in the case of a time barred suit and cannot, by invoking the discretionary remedy under Article 226 of the Constitution of India, resurrect unenforceable cause of action."
22. Learned Standing Counsel for the University brought to my notice another decision of a Division Bench of this Court in District Executive Officer v. Abel (2006 (2) KLT 758), laying down the principle that the Government has no power to condone the delay in fling an appeal beyond sixty days from the date of receipt of order under Section 8(5) of the Limitation Act. That was a case concerning the provisions of Motor Transport Workers Welfare Fund Act, 1985.
23. In the decision in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department and others {(2008) 7 SCC 169}, the Apex Court considered the proviso to Sections 34(3) and 43(1) of the Arbitration and Conciliation Act, 1996 and the applicability of Section 5 of the Limitation Act. It was held in para 20 that " when any special statute prescribes certain period of limitation as well as provision for extension up to specified time limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail and to the extent the provisions of the Limitation Act will stand excluded."
24. This is relied upon by the learned Standing Counsel for the University to contend that the rejection of the subsequent appeal as per Exts.P7 and P8 cannot be held as illegal and hence cannot be interfered with in this writ petition.
25. In fact, learned counsel for the petitioner's arguments have been regarding the invalidity of Ext.P5 order passed by the Chancellor. In that view of the matter, if this Court finds that the rejection of the appeal as per Ext.P5 cannot be sustained, the validity of the communications issued by the University as per Exts.P7 and P8 need not be gone into by this Court as the same is unnecessary. Of course, there is no power to condone the delay in filing the appeal, evidently, in the clauses of the University First Statutes governing filing of appeals.
26. In fact, a party aggrieved by any order, has been provided a remedy to file an appeal. The consequence of non-compliance of the procedural provisions has not been provided in any of the relevant statutes considered above and the same cannot therefore render the remedy of appeal frustrated. The right of appeal provided herein is under the First Statutes. In such cases, as held by the Apex Court in Shiv Shakti Co-op. Housing Society, Nagpur v. Swaraj Developers and others {(2003) 6 SCC 659}, "the right of appeal is statutory. Right of appeal inhered in no one. When conferred by statute it becomes a vested right." (para 17).
27. The Apex Court in the context of considering the nature and scope of an appellate jurisdiction, in Tirupati Balaji Developers (P) Ltd. v. State of Bihar and others {(2004) 5 SCC 1} explained the legal position thus in paragraphs 11 and 30:
"11. The very conferral of appellate jurisdiction carries with it certain consequences. Conferral of a principal substantive jurisdiction carries with it, as a necessary concomitant of that power, the power to exercise such other incidental and ancillary powers without which the conferral of the principal power shall be rendered redundant. As held by Their Lordships of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey - AIR 1932 PC 165 (Sir Dinshaw Mulla speaking for the Bench of five), an appeal is an application by a party to an appellate court asking it to set aside or revise a decision of a subordinate court. The appeal does not cease to be an appeal though irregular or incompetent. Placing on record his opinion, Subramania Ayyar, J. as a member of the Full Bench (of five Judges) in Chappan v. Moidin Kutti - ILR 1899) 22 Mad.68 (at ILR p.80) stated inter alia that appeal is the removal of a cause or a suit from an inferior to a superior judge or court for re-examination or review. According to Wharton's Law Lexicon such removal of a cause or suit is for the purpose of testing the soundness of the decision of the inferior court. In consonance with this particular meaning of appeal, "appellate jurisdiction" means "the power of a superior court to review the decision of an inferior court".
"Here the two things which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior court and the power on the part of the former to review decisions of the latter. This has been well put by Story: 'The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial tribunals an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been already instituted and acted upon, by some other court, whose judgment or proceedings are to be revised,' (Section 1761, Commentaries on the Constitution of the United States)"
30. The very existence of appellate jurisdiction obliges the lower jurisdiction to render all of its assistance to the higher jurisdiction to enable the exercise of appellate jurisdiction fully and effectively. the lower forum may be called upon to certify its record of case and proceedings to the superior forum. The superior forum may stand in need of some information which being in the possession or knowledge of the subordinate forum, shall have to be made available only by it. The superior forum may issue a stay order or restraint order or may suspend, expedite or regulate the proceedings in the subordinate forum. During or at the end of exercise of the appellate jurisdiction any direction made by the higher forum shall have to be complied with by the lower forum, otherwise the hierarchy becomes meaningless."
The above dictum will be helpful in understanding the true effect of Statute 56 of Part III Chapter IV of the Calicut University First Statutes, 1977 providing the manner of submission of appeal. The said provision or any other provision in that chapter do not provide for the consequences of not submitting the appeal to the authority which made the order appealed against. Statutes 57 to 60 do not convey a different idea at all. All these procedural provisions cannot defeat a substantive right of appeal which is a right created by the statute and is a vested right. What is relevant is the substance and not the form. Therefore, in the light of the principles stated by the Apex Court in Uday Shankar Triyar's case {(2006) 1 SCC 75}, and other decisions they can only be termed as directory. Hence, the non compliance of the same will not result in automatic dismissal or rejection of the appeal. Even going by Statute 56 a copy of the appeal may be submitted direct to the appellate authority. Therefore, by preferring the appeal before the appellate authority itself, there is substantial compliance with the provisions. In that view of the matter, as held by the Apex Court in Pratap Singh's case (AIR 1956 SC 140), breach of a directory provision can be overlooked when there is substantial compliance of the rules. The power under Section 7(3) of the Act is plenary in nature, as the Chancellor has got power to annul any proceeding of any of the authorities or officers of the University which is not in conformity with the Act, the Statutes, the Ordinances, the Regulations, the rules or the Bye-laws. Since such a wide power is also conferred on the Chancellor, it can be seen that the appeal ought not have been rejected on technicalities. If at all a technical violation was there, it could have been rectified also. No opportunity was given to the petitioner to cure the defect if any also before the rejection of the same by Ext.P5.
28. Then, the only question is whether as argued by the learned Standing Counsel for the University, the subsequent filing of the appeal through the University along with a petition for condonation of delay, and its rejection will deprive the opportunity for the petitioner to challenge the validity of Ext.P5. Learned Standing Counsel Shri P.C. Sasidharan submitted that the petitioner has elected to choose a remedy and therefore he is estopped from challenging the validity of Ext.P5 in this writ petition. Herein, the forum for filing the appeal against the decision of the Syndicate is the Chancellor. Merely because the petitioner attempted to file another appeal after the receipt of Ext.P5, it cannot be said that he has elected to choose another remedy since herein, the appellate forum is the same. He did not approach a different forum by way of filing an appeal. Therefore, the doctrine of estoppel will not apply to the facts of this case. Further, contention is that he has acquiesced to the rejection of the appeal initially filed when he has chosen to file the later appeal. It is clear from the pleadings and the reliefs sought for herein, that the petitioner is challenging the validity of Ext.P5 mainly. Therefore, the principle of acquiescence also will not apply. This Court is not prevented from going to the validity of Ext.P5 even though he had chosen to challenge the rejection of the application for condonation of delay also before the Chancellor as averred in the counter affidavit and the Chancellor has finally rejected the same. The same will not disentitle the petitioner from prosecuting the challenge against Ext.P5 in this writ petition.
29. Evidently, in Ext.P5 what is stated as a reason to treat the appeal as non admissible, is the failure of the petitioner to comply with the provisions of Statute 56. The same is only directory especially since the non compliance of the same has not been characterised as fatal in any of the statutes. Ext.P4 is the memorandum of appeal filed by the petitioner before the Chancellor. The same has therefore to be entertained by the Chancellor. The appeal will be disposed of after calling for the records and the remarks of the competent authority of the University on the contents of the appeal.
30. Therefore, the writ petition is allowed. Ext.P5 is quashed. There will be a direction to dispose of Ext.P4 appeal filed before the Chancellor on merits after hearing the petitioner and the second respondent, within a period of three months from the date of receipt of a copy of this judgment. No costs.