Debesh Ku.Biswal Vs Devlopment Commissi

Mr. Manas Pati, learned counsel along with Mr. Lalatendu Samal, learned counsel for the Petitioner submitted that order dated 27.11.2013 passed by Commissioner- cum -Director of Directorate of Local Fund Audit, Odisha issued charge/surcharge on the Petitioner for an amount of Rs.1,30,150.00/- (Rupees One lakh thirty thousand one hundred and fifty only) under Section 9(3) of the Odisha Local Fund Audit Act, 1948 (“O.L.F.A. Act”, for short). At paragraph-4 of the said order, it has been stated thus:

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“If you are aggrieved with this order, you may prefer an appeal under Section 11 of the OLFA Act, 1948 (Odisha Act V of 1948) before the Development Commissioner, Odisha within 14 days from the date of communication of order under intimation to the undersigned and the District Collector.”

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Referring to paragraph-3.7 of the writ petition, it is affirmed by the Petitioner that on 09.12.2013, he has received the said order dated 27.11.2013.

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Drawing attention of this Court to the appeal petition addressing to the Development Commissioner vide Annexure-7, it is submitted that the said appeal petition was sent to the Appellate Authority on 21.12.2013 which fact has been asserted at paragraph-3.13 of the writ petition. It is vehemently submitted by Mr. Lalatendu Samal, learned counsel for the Petitioner that due to postal delay, the said appeal petition could reach the Office of the appellate authority on 28.12.2013, i.e., around 5 days later than 14 days of service of order dated 27.11.2013.

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3.1. Mr. Samal, learned counsel for the Petitioner submitted that mere delay of 5 days due to postal communication, the Appellate AuthorityDevelopment Commissioner- cum -Additional Chief Secretary, Odisha should not have rejected the appeal on hyper-technical grounds. He submitted that after dispatching the appeal petition on 21.12.2013 by post, the documents have left the custody of the Petitioner and he has no control over the same. Therefore, for the delay caused in service of said documents in the Office of Appellate Authority he has no role, as such the appeal petition should have been considered by the appellate authority on merits.

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Mr. Santosh Kumar Brahma, learned Additional Government Advocate submitted that the facts are not disputed. However, he urged not to entertain this writ petition. As the appeal petition was not submitted to the Appellate Authority within the time stipulated as envisaged in Section 11 of the Odisha Local Fund Audit (O.L.F.A. Act), the delay could not be

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condoned by the appellate authority as there is no provision for condonation of delay. Therefore, he essentially submitted that in absence of any provision authorising the appellate authority to ignore the delay in filing of appeal, the appeal being rejected vide Order dated 22.01.2014, the writ petition deserves to be dismissed.

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Perusal on record indicates that it has been observed in the order dated 22.01.2014 by the Appellate Authority as follows:-

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“Being aggrieved with the Surcharge Order No.17938 dt.27.11.13 issued by the Examiner of Local Accounts which was served on the aforesaid appellant on dt.09.12.13, the appellant filed an appeal before the Development Commissioner-cumAdditional Chief Secretary and the same was received on dt.28.12.13, i.e. beyond the stipulated period of fourteen days prescribed u/s-11(1) of Local Fund Audit Act, 1948.

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As per the clarification issued by the Finance Department after obtaining legal opinion from the Law Department vide G.O. No.1010/XIV-audit-31/69-LFA dtd.09.03.1972, the period of fourteen days has been specifically prescribed by the Legislature and it is not open to the Examiner of Local Accounts or the Competent Authority u/s-11(1) of OLFA Act,1948 to grant any extension of time of condone the delay in any case.

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Keeping in view the aforesaid statutory provision the appeal is hereby rejected.”

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6 . As it appears from the counter affidavit filed by the Opposite Party No.4, Director of Local Fund Audit, Odisha, Bhubaneswar-12 that the fact of transmission of appeal petition on 21.12.2013 is not disputed. It is also admitted fact that as the Appellate Authority received the appeal petition on 28.12.2013. Paragraph-14 of the aforesaid counter reveals as follows:-

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“xxx xxx xxx xxx

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In the instance case, the Petitioner received the surcharge order on dated 09.12.2013 and appeal petition was received by the

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appellate authority on dated 28.12.2013, although the appellant has stated that he had sent the petition on 21.12.2013.”

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From the contentions and arguments, it is apparent that there was delay of around 5 days in preferring the appeal under Section 11 of the O.L.F.A. Act. Section 11 of the said Act reads as follows:

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“11. Appeal from order of surcharge or charge.— (1) Any person aggrieved by any surcharge or charge made, may, within fourteen days from the date of communication of such order , appeal to such authority as the Provincial Government may appoint in this behalf to set aside such surcharge or charge and the authority so appointed after making such enquiries as it considers necessary, may pass such order as it thinks fit. (2). Pending the disposal of such appeal all proceedings for recovery of the certified amount shall be stayed.”

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The presence of the word “may” in sub-section (1) of Section 11 is clear indication of the fact that such period stipulated is not mandatory, but could be extended on sufficient cause being shown.

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It is noteworthy to have reference to Akshaya Kumar Parida Vrs. Union of India, AIR 2015 Ori 49 wherein the question before Full Bench of this Court was,

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“7. The question thus arises whether by invoking Section 5 of the Limitation Act, the Tribunal can condone the delay, if the applicant satisfies the Tribunal that he was prevented by sufficient cause in not preferring the application for review within the prescribed period of limitation?”

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While answering said question it has been held,

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“20. In view of the authoritative pronouncement of the apex Court in the case of Mukri Gopalan Vrs. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5, a situation wherein a period of limitation is prescribed by a special or local law for an application of review and for which no provision is

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made in the Schedule to the Act, the second condition for attracting Section 29(2) of the Act is attracted. From the enunciation of law laid down in Mukri Gopalan (supra), it must be held that in view of Section 29(2) of the Limitation Act, the Tribunal has the jurisdiction to entertain the application for condonation of delay filed under Section 5 of the Limitation Act. Rule 17 of the Rules does not take away the jurisdiction of the Tribunal to entertain and dispose of the application under Section 5 of the Limitation Act, since applicability of Section 5 of the Limitation Act has not been expressly excluded thereby.”

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Therefore, this Court taking note of the ratio laid down in above reported Judgment that in absence of provision for condonation of delay, the provisions of Section 5 of the Limitation Act would apply, the present case is liable to be considered favourably.

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In such view of the matter, this Court is of the considered view that the Development Commissioner- cum -Additional Chief Secretary, Odisha should not have adopted hyper-technical approach and taken pedantic view. It is well-settled that when technical considerations and substantial justice are pitted against each other, the cause of substantial justice would prevail.

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On applying aforesaid principles, this Court feels it expedient to observe that when there is no dispute set up by the opposite parties that the Petitioner has sent the appeal petition within 14 days of receipt of order dated 27.11.2013 to the Appellate Authority by post, the service of said appeal petition is not within his control. Such fact of transmission of appeal petition by the Petitioner remained uncontroverted by the learned Additional Standing Counsel. Therefore, the impugned order dated 22.01.2014 passed by Development Commissioner- cum -Additional Chief Secretary, Odisha is liable to be set aside and this Court does so.

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It is directed that the Opposite Party No.1– Development Commissioner- cum -Additional Chief Secretary, Odisha shall entertain the appeal petition taking it to have been filed within the stipulated period under Section 11 of the O.L.F.A. Act and adjudicate the matter on merits. 14. Since the appeal is of the year 2014, expeditious steps be taken for disposal of the appeal petition. It is hoped that entire exercise shall be completed within a period of two months from the date of communication of certified copy of this order by the Petitioner to the Opposite Party No.1. 15. With the aforesaid observations and directions, the writ petition stands disposed of.

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(M.S. Raman) Judge

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Madhusmita

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Signature Not Verified

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Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 10-Feb-2025 18:17:39

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Debesh Ku.Biswal v. Devlopment Commissi

Case brief

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Debesh Ku.Biswal v. Devlopment Commissi

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