Allahabad High Court
General Manager & Others vs C.A.T., Allahabad & Another on 4 October, 2013
Bench: Satya Poot Mehrotra, Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD
A F R
[RESERVED]
Civil Misc. Writ Petition No. 39921 of 2000
General Manager, Northern Railway
Baroda House, New Delhi and Others Petitioners
Vs.
Central Administrative Tribunal and Another Claimant/Respondents
Hon. Mr. Justice S.P. Mahrotra,J.
Hon. Mr. Justice Pankaj Mithal,J.
Samir Das, respondent no. 2 was working as a Guard Grade-C with the Railways. A disciplinary action was taken against him. He was charge-sheeted and was punished vide order dated 14.1.1986 which was approved in appeal. The said orders were questioned by him before the Central Administrative Tribunal and the order of the punishment was set aside.
Petitioners challenged the verdict of the tribunal by filing the present petition. The petition was admitted and notices were issued to the respondent no. 2. After the pleadings were exchanged, the petition was dismissed for want of prosecution by us vide order dated 2.12.2010.
The petitioners have applied for recall of the above order and for restoring the writ petition to its original number for hearing on merits. The application is accompanied by an application for condoning the delay in filing the restoration application. Both the applications are supported by a composite affidavit of the clerk of the counsel.
Respondent no. 2 has filed reply to the restoration application to which a rejoinder has also been filed.
We have heard Sri A.K. Rai, learned counsel for the petitioners and Sri Pramod Jain, learned counsel appearing for respondent no. 2.
It has been contended by the petitioners that on the relevant date the name of their counsel who had filed his appearance on 15.9.2010 was not printed in the cause list. His clerk could not mark the case in the absence of his name from the cause list and as such he could not attend the court when the petition was called out. This led to the dismissal of the petition in default of counsel for the petitioners. They acquired knowledge of dismissal of the petition for want of prosecution only on 23.1.2012 when they were served with notice dated 17.1.2012 of the Contempt Application No. 176 of 2011.
The restoration and the delay condonation applications are being opposed by respondent no. 2 on the ground that the affidavit of the clerk of the counsel is not proper and inadmissible and that the petitioners had the knowledge of the order dismissing the writ petition in default prior to 23.1.2012 as the respondent no. 2 had sent a letter dated 25th May 2011 containing a clear averment that the petition was dismissed on 2.12.2010 by the High Court.
It is well known that ordinarily in High Court presence of the parties or the petitioner is not necessary after the filing of the petition on subsequent dates. Once a petition is filed, it is taken care of by the counsel engaged. The absence of the counsel from the Court leading to the dismissal of the petition in default as such has to be explained by the counsel particularly when the cause for absence is attributable to some lapses on part of his office. However, as the counsel is not supposed to act as a witness or a parokar of a litigant, the best person to explain the said default is his clerk. Therefore, filing of affidavit of the clerk concerned explaining the default on part of the office of the counsel is the routine and normal practice followed in this Court to which no exception can be taken.
The reason for default shown in the present case is on account of absence of counsel due to non printing of his name in the cause list. The litigant is not the proper person who could have deposed about the said fact. The said explanation has rightly been explained on affidavit by the clerk of the counsel having personal knowledge of his absence and the reason behind it.
As far as the explanation of the delay in filing the restoration application is concerned, it would have been much better if a separate affidavit on behalf of the petitioners would have been filed so as to disclose the date of knowledge of the order dismissing the petition in default or the reason for the delay.
Nonetheless, in the present case the date of knowledge of the order being based upon the record, even the clerk of the counsel could testify about it on the basis of information received.
The contention of Sri Pramod Jain that the petitioner had acquired knowledge of the order dismissing the writ petition in default much earlier than 23.1.2012 through letter/representation of respondent no. 2 dated 25th May 2011 is without substance and has no force. The said letter/representation of respondent no. 2 was served in the office of the Station Manager, Eastern Railway, Sealdah Division, Sealdah and was not sent and served upon any of the four petitioners. It is stated that when the said letter/representation was so served, Eastern Railway Sealdah Division, Sealdah forwarded the same to the Senior Divisional Operation Manager (G), Eastern Railway and to the Divisional Railway Manager, Northern Central Railway. The averments to this effect made in the counter affidavit are sufficient to disclose that the said letter/representation was neither sent nor served upon the petitioners. There is nothing on record to show that the contents of the said letter were actually communicated to any of the petitioners by the offices to whom they were allegedly sent. This apart, in the absence of any positive material it is difficult to disbelieve that the notice in the Contempt Petition was served upon the petitioners on 23.1.2012 and that they acquired knowledge of dismissal of the writ petition through it only. In these circumstances, there is hardly any justification and scope not to accept the version of the petitioners in this regard.
The law of limitation is for the general welfare and the object is that stale matters are not litigated upon. It does not aim to destroy the rights of the parties but the idea is that every legal remedy may come to an end on the expiry of a period prescribed for keeping it alive. In Collector, Land Acquisition, Anant Nag and another Vs. Mst. Kartiji and others AIR 1987 SC 1353 it was observed that when substantial justice and technical considerations are pitted against each other, the Court should prefer and follow the cause of substantial justice.
In Balkrishnan Vs. M. Krishnamurthi AIR 1998 SC 3222 their Lordships' of the Supreme Court explaining the scope of limitation and condonation of delay observed that the primary intention of a Court is to adjudicate the dispute between the parties and to advance substantial justice and the time limit fixed for approaching the Court is meant to ensure that parties do not resort to dilitary tactics.
It has also been settled vide Smt. Prabha Vs. Ram Prakash Kalra 1987 (Supplement) SCC 339 that in matters relating to condonation of delay the court should not adopt an injustice oriented approach.
In Apangshu Mohan Lodh and others Vs. State of Tripura and others AIR 2004 SC 267 the Court held that the power of condonation of delay is discretionary in nature and is to be construed liberally.
In the case of Balwant Singh (dead) Vs. Jagjit Singh and others 2010 (3) ARC 1 (SC) relied upon by the counsel for respondent no. 2 the Apex Court though rejected but reiterated the following principles:-
i) "Sufficient cause" for not making an application within time should be understood and applied in reasonable pragmatic, practical and liberal manner and it should receive a liberal construction so as to advance substantial justice;
ii) In considering the reason for condoning the delay the Courts should be more liberal with reference the application for setting aside abatement than in other case;
iii) The decisive factor for condoning the delay is not the length of the delay but sufficiency of the satisfactory explanation; and
iv) The extent of leniency shown depends upon the nature of application and the facts and circumstances of the case.
(v) In addition to the delay, the court must also take into account the conduct of the parties and whether such delay could have been avoided by normal care and caution.
The rejection of the delay condonation application in the aforesaid case can not compel this Court to reject the application in this case also as the facts and circumstances of this case are different and there is no material to doubt the bonafidies of the petitioners or that there was lack of due diligence. This appears to be no deliberate exercise on their part to delay the proceedings.
Therefore in the facts and circumstances, we are of the view that the petitioners have not only established sufficient grounds for condoning the delay in filing the restoration application but have also made out a good and sufficient cause for recalling the order dated 2.12.2012.
Accordingly, the order dated 2.12.2012 dismissing the writ petition is recalled and the petition is restored to its original number.
Delay Condonation Application no. 49810 of 2012 and the Restoration Application No. 49813 of 2012 stand allowed.
Let the writ petition be listed before the appropriate Bench for consideration on merits.
SKS
4.10.2013
