Laxman Nath Das and anr. Vs. Deputy Secretary (Examination), the Indian Institute of Bankers and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. pasayat, j.1. in each of the two writ applications the concerned petitioner has challenged the order dated 20-8-1992 of the indian institute of bankers (in short, the 'institute') cancelling the result of december, 1989 associate examination and debarring him from appearing at the examinations of the institute till 31-12-1994, on the ground of having adopted malpractice in the examination.2. a preliminary objecdtion was raised by miss das appearing for opposite party no. 1 in ojc no. 4515 of 1991, and opposite party no. 5 in ojc no. 4584 of 1991 that the institute is a company registered under the indian companies act, 1913. one of the primary aims is the advancement of study and practice of banking. it imparts training to employees of different banks, conducts examinations and issues certificates to successful candidates. most of the banks, including nationalised banks, are institutional members and accord recognition to the certificates issued by the institute, and take due note of them at the time of promotion, fixation of seniority etc.3. several high courts including this court in several cases have held that the institute is not an instrumentality of the state within the meaning of article 12 of the constitution of india for the purpose of article 226 of the constitution. the learned counsel for petitioners, however, contended with reference to a decision of the apex court in shri anadi mukta v. v. r. rudani, air 1989 sc 1607 that the writ application is maintainable; and prayed for 3 fresh look at the controversy.4. while considering the scope and ambit of article 12 of the constitution, the apex court in chander mohan khanna v. the national council of educational research & training, air 1992 sc 76, observed that the said article should not be stretched so as to bring in every autonomous body which has some nexus with the government within the sweep of the expression 'state'. a wide enlargement of the meaning must be tempered by a wise limitation. it must not be lost sight of that in that modern concept of welfare state, independent institution, corporation and agency are generally subject to state control. the state control does not render such bodies as 'state' under article 12. the state control, however, vast and pervasive, is not determinative. the financial contribution by the state is also not conclusive. the combination of state aid coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the state may largely point out that the body is 'state'. if the state operates behind a corporate veil, carrying out governmental activity and governmental functions of vital public importance, there may be little difficulty in identifying the body as 'state' within the meaning of article 12.as observed by the apex court in several cases, some of them being sukhdev singh v. bhagat ram, air 1975 sc 1391; r. d. shetty v. international airport authority, air 1979 sc 1628; ajay hasia v. khalid mujib sehravardhi, air 1981 sc 487 and som prakash redhi v. union of india, air 1981 sc 212, if the functions of the institution are of public importance and related to governmental functions, it would also be a relevant factor. these are merely indicative indicia and are by no means conclusive or clinching in any case. there is no cut and dried formula which would provide correct division of bodies into those which are instrumentalities or agencies of the government and those which are not. the powers, functions, finances and control of the government are some of the indicating factors to answer the question whether a body is 'state' or not. each case should be handled with care and caution. here the financial assistance from the state is so much as to facet almost entire expenditure of the institution, or the share capital of the corporation is completely held by the government, it would afford some indication of the body being impregnated with government character. it may be a relevant factor if the institution or the corporation enjoys monopoly status which is state conferred or state protected. existence of deep and pervasive state control may afford an indication.5. there is no material placed as to whether controlling authorities of the institute can enter into arrangements with government, public or private organisations or individuals in furtherance of the objectives of the implementation of programmes and whether it is free to apply its income and property towards the promotion of its objectives and implementation of its programmes. therefore, even if it is autonomous body, it cannot be equal to be a state within the meaning of article 12.6. the functional details of the institute have been indicated by the punjab & haryana high court in ram pershad v. indian institution of bankers, air 1992 punjab & haryana 1. it is accepted by the learned counsel for the parties that they reflect the actual fact situation. on elaborate analysis thereof, the high court has found that the institution is not an instrumentality of state within the meaning of article 12, or for purposes of article 226 of the constitution. with reference to observations of the apex court in anadi mukta sadguru's case (supra), it was observed that the words 'any person or authority' used in article 226 are not to be confined only to statutory authorities and instrumentalities of the state. they may cover any other person or body performing public duty. the form of body concerned is not very relevant. nature of duty imposed on the body is relevant. as rightly observed in ram parshad's case (supra) considering nature and duty of the institute, it is not amenable to writ jurisdiction under article 226 of the constitution. view expressed by apex court in praga tools corporation v. c. v. imanual, air 1969 sc 1306 lends ample authoritative prop to our view.this court in ojc no. 7510 of 1992 disposed of 18-8-1994; and ojc no. 4511 of 1992 disposed of on 5-9-1994 concurred with that view. several other high courts have also taken similar view, i.e., writ petition no. 3321 of 1991 disposed of on 16-9-1991 by the bombay high court, civil writ petition no. 5133 of 1991 disposed of on 9-3-1992 by the rajasthan high court; civil writ petition no. 9718 of 1989 disposed of on 17-7-1991 by the allahabad high court; writ petition no. 17886 of 1993 disposed of on 20-9-1993 by the karnataka high court, and misc. petition no. 905 of 1989 disposed of by the madhya pradesh high court.7. in view of unanimity of view expressed by different high courts, and analysis made by us, we find no scope for interference in both the writ applications which are dismissed. no costs.p.c. naik, j.8. 1 agree.