- (1.) HEARD the learned Advocates appearing for the parties.
(2.) THIS is an application seeking extension of time to complete the departmental proceeding which was allowed to be completed within two months by the order dated 27th February, 2007 when the appeal of the delinquent employee was disposed of without interfering with the departmental proceeding which was the subject matter of challenge. As the departmental proceeding was pending for a considerable period, the Court directed to complete the departmental proceeding within two months positively with a rider that such time limit could be extended if and only if there was any situation as would be beyond the control of the disciplinary authority to complete the proceeding within the time framed by the Court. The application for extension of time that is the present application has been filed before expiry of the said two months and more precisely on the last date as fixed by the Court to complete the proceeding, though we observe in our order dated 27th February, 2007 that well before the expiry of the time limit the application of extension could be considered. But since the application was filed even on the last date of expiry of time limit, we are accepting the application as in order to decide the issue. The contingency and/or the circumstance for which the disciplinary proceeding could not be completed has been detailed in the application as well as in the affidavit-in-reply. It appears from the affidavits filed by the respondent-Bank that Mallabhum Gramin Bank was amalgamated along with other four such Gramin Banks to constitute one Bank under the name and style of "bangiya Gramin Vikash Bank" by notification dated 21st February, 2007 published in the Gazette of India Extra-ordinary. This amalgamation of the respondent Bank along with other four Banks were done in exercise of power conferred by sub-section (1)of section 23a of the Rural Banks Act, 1976 by the Central Government. As a result of such formation of the Bank, "bangiya Gramin Vikash Bank" by amalgamation of other Gramin Banks including the respondent, Mallabhum Gramin Bank, a service regulation which will control the departmental proceeding as well as the other service condition was framed and constituted in exercise of power under section 30 of the Regional Rural Banks Act, 1976 under the name and style of "officers and Employees Service Regulations, 2007. " The same was published in the Gazette of India on 4th March, 2008. However from the records it appears, namely, the application and the rejoinder that the departmental proceeding has reached to the stage of consideration of the punishment by the disciplinary authority. The Enquiring Officer has submitted his report and objection of such report has been filed by the delinquent employee. The very tenor of the order dated 27th February, 2007 was to complete the departmental proceeding in accordance with law. The Court accordingly did not interfere with the initiation of the departmental proceeding which was the subject matter of challenge in the writ application. The time limit was fixed in view of the pendency of the matter. It is a settled law that time limit as is fixed by the Court to complete anything by an order comes within the field of procedural part of order and not on subjective adjudication part of the order. The adjudicatory part was whether the departmental proceeding should be allowed to continue on merit. Such adjudication was done by this Court disposing of the appeal by not interfering with the impugned judgment under appeal passed by the learned trial Judge whereby and whereunder the initiation of the departmental proceeding and its continuation was not interfered with. The extension of time to complete it is nothing but allowing the time limit to complete a procedural matter and it is not coming within the field of any adjudication of the matter on merit.
(3.) CONSIDERING that aspect of the matter and having regard to the judgment in this field, namely, Mahanth Ram Das v. Ganga Das, reported in AIR 1961 SC 882 wherein it has been held that when there would be no prayer for modification of substantive portion of the judgment but only the procedural portion of the judgment, the doctrine of functus officio had no applicability. This judgment was followed by the Calcutta High Court in the case Anadi Nath Roy Chowdhury v. Sudhangshu Kumar Bhattcharya, reported in 1987 (1) CLJ 370. One of us (Pratap Kumar Ray, J.) sitting singly while considering the applicability of the said doctrine and its scope thereof while extending the time limit of any act which was directed to be completed by the Court in the case Snehendu Chowdhury and Ors. v. State of West Bengal and Ors. reported in (2006) 2 Cal LT412 (HC) by dealing an identical question about extension of time of a departmental proceeding answered it by holding that time limit for completion of the departmental proceeding being in the procedural field of judgment, it could be extended. The applicability of the amended provision of section 148 of the Code of Civil Procedure whereby a limitation has been prescribed not to extend any time limit beyond thirty days became the subject matter for consideration on the issue as to whether the Court would be powerless on the situation when there will be expiry of time limit of thirty days in terms of section 148 of the Code of Civil Procedure, to extend the time, the answer has been given by the Apex Court in the case Salem Advocate bar Association, T. N. v. Union of India, reported in (2005) 6 SCC 344, a judgment of 3-Judges Bench by holding that the rigid operation of the section would lead to an absurdity and extension of time beyond the maximum period of thirty days could be allowed by the Court by taking resort to section 151 of the Code of Civil Procedure. Paragraphs 41, 42 and 43 would be profitable to quote, which read such: "41. The amendment made in section 148 affects the power of the Court to enlarge time that may have been fixed or granted by the Court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the Court has no inherent power to extend the time beyond 30 days is the question. We have no doubt that the upper limit fixed in section 148 cannot take away the inherent power of the Court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of the Court. The rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to operate fully. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either under section 148 or section 151. We are dealing with a case where the time is fixed or granted by the Court for performance of an act prescribed or allowed by the Court. 42. In Mahanth Ram Das v. Ganga Das this Court considered a case where an order was passed by the Court that if the Court fee was not paid by a particular day, the suit shall stand dismissed. It was a self-operating order lading to dismissal of the suit. The party's application filed under sections 148 and 151 of the Code for extension of time was dismissed. Allowing the appeal, it was observed: "how undesirable it is to fix time peremptorily for a happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves on the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians". 43. There can be many cases where non-grant of extension beyond 30 days would amount to failure of justice. The object of the Code is not to promote failure of justice. Section 148, therefore, deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the Court would have inherent power to extend time beyond 30 days". ;