Bombay High Court

Vidya Vijay Ghosalkar vs Dnyansagar Education Society And ... on 27 November, 2014

Bench: M.S. Sonak

    DSS                                                               [email protected] 1469-14



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                 
                         WRIT PETITION NO.1374 OF 2014




                                                         
          Sangita C Thakur                           ..  Petitioner 
                vs.
          Dnyansagar Education Society & ors. ..  Respondents 




                                                        
                                             WITH

                         WRIT PETITION NO.1469 OF 2014




                                            
          Vidya V. Ghosalkar                              ..  Petitioner 
                vs.
                               
          Dnyansagar Education Society & ors.             ..  Respondents 
                              
          Ms P.V.Thorat for the Petitioners in both petitions.
          Mr.   Sanjay   More,   Head   Master   of   Dnyansagar   Education   Society, 
          present in person for Respondent Nos.1 and 2 in both petitions.
          Mr.   U.S.   Upadhyay,   AGP   for   Respondent   Nos.3   and   4   in   both 
          petitions. 
        
     



                                            CORAM :  M. S. SONAK, J.

                                            DATE     :    27 NOVEMBER 2014.

          ORAL JUDGEMENT :-





           
          1]     Rule in both the petitions.





          2]    By order made on 30 October 2014, the parties were put to

notice that these petitions will be disposed of finally at the stage of

admission itself.

     DSS                                                                   [email protected] 1469-14



          3]     Both the petitions challenge the orders dated 9 October 2013

made by the School Tribunal, Mumbai in two separate miscellaneous

applications lodged in two separate appeals preferred by the

respective petitioners in both the petitions, declining to condone the

delay in filing of appeals against termination orders made by

respondent Nos.1 and 2 (School Management).

4] Mr. Sanjay More, Headmaster of Dnyansagar Education

Society appears on behalf of respondent Nos.1 and 2. On 30 October

2014, as also on the previous occasion Mr. More, on behalf of

respondent Nos.1 and 2, had applied for adjournments on the

ground that respondent Nos.1 and 2 seek to engage services of an

advocate to appear on their behalf. On both occasions adjournment

was granted at the request of Mr. More. In order dated 30 October

2014, however, it was made clear that adjournment is granted as a

last chance and that on the next occasion petitions will be disposed

of finally at the stage of admission itself. Even today, however, Mr.

More submits that though he has repeatedly informed the School

Management about the orders made by this Court, no advocate has

been engaged and therefore, he is once again constrained to seek

adjournment.

     DSS                                                                  [email protected] 1469-14



          5]     Considering the background narrated earlier, I am not inclined

to grant any further time to the School Management. Accordingly,

matters have been heard finally at the stage of admission itself.

6] Mr. More, Headmaster of Dnyansagar Education Society, was

offered an opportunity to make his submission in the matter.

However, he states that he would not like to make any submissions

on the merits of the matter.

7] In Writ Petition No.1374 of 2014, which arises out of

Miscellaneous Application No. 5 of 2012, the delay involved in filing

of the appeal was about 120 days, according to the petitioner.

However, the School Tribunal has recorded the delay, in effect comes

to about 157 days. The divergence is on account of the petitioner

taking into consideration the representation made post the service of

termination order and the School Tribunal treating the date of

termination order as the date of the accrual of cause of action. Be

that as it may, considering the explanation offered, nothing much

would turn upon whether the delay is to be construed as 120 days or

157 days.

     DSS                                                                 [email protected] 1469-14



          8]     In order to explain delay, the petitioner has pointed out that

after the service of termination order dated 8 September 2011, the

petitioner made a representations dated 26 September 2011 and 13

October 2011 to the Deputy Director of Education complaining

against the termination order. Thereafter the petitioner also made

representations dated 24 November 2011 and 7 December 2011 to

the Hon'ble Minister of School Education for redressal of her

grievances. The petitioner has stated that she was hopeful of some

redressal and therefore did not rush with the filing of appeal before

the School Tribunal. Besides, in the meanwhile respondent No.1

lodged a complaint against the petitioner with the Oshiwara Police

Station and the petitioner was constrained to apply for anticipatory

bail in order to secure her liberty. All these factors contributed to the

delay in filing of the appeal.

9] In Writ Petition No.1469 of 2014, which arises out of

Miscellaneous Application No.4 of 2012, the services of petitioner

were terminated 30 September 2011. According to the petitioner the

delay in filing the appeal is of 120 days, but according to the School

Tribunal the delay would be 132 days. Again in the context of the

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explanation offered, the issue as to whether the delay is 120 or 132

days would not be very relevant.

10] The petitioner in Writ Petition No.1469 of 2014, in her

application seeking condonation of delay, has submitted that she too

made several representation to the Deputy Director of Eduction

including, inter alia, representations dated 17 October 2011 and 17

November 2011. Further in the month of November 2011, she

handed in the case papers to her to her advocate for filing of the

appeal and there was some delay at his end in preparation of appeal

papers. In the meanwhile, respondent No.1 filed a complaint against

the petitioner with the Oshiwara Police Station and the petitioner

was required to obtain anticipatory bail in order to secure her liberty.

All these factors contributed to delay in filing of the appeal.

11] The School Tribunal, in the impugned orders, the reasoning of

which is virtually identical, has in the first place held that the delay

in both the matters was 157 days and 132 days respectively and not

120 days only, as urged by the petitioners. On this basis, the School

Tribunal has proceeded to hold that there is no explanation

whatsoever insofar as the balance period is concerned. Further the

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School Tribunal has held against the petitioners for failure to explain

what steps the petitioners took to file the appeals within the period

of limitation.

12] In my judgment, the approach of the School Tribunal is

undoubtedly pedantic. It is settled position in law that in matters of

condonation of delay, the Courts and Tribunals should adopt a

liberal approach. The length of delay is not invariably the crucial

factor. The quality of explanation is really vital. There is never any

presumption that delay has been caused deliberately or with some

oblique intentions. In fact, the petitioners in the present case have

gained absolutely nothing by delaying the lodging of appeals.

Besides, this is not a case where the petitioners have been indolent

or have been simply slept over their rights. The records would

indicate that the petitioners have made representations against the

termination orders to the Deputy Director and the Minister. The

petitioners were thus agitating, quite actively the issue of their

termination. The fact that the complaints were filed against the

petitioners and the petitioners were required to obtain anticipatory

bail, is also not an irrelevant factor, particularly since the complaints

are said to have been filed by the School Management itself.

DSS [email protected] 1469-14

Certainly, therefore, sufficient cause was made out to explain the

delay.

13] Whether the delay was 157 days or 132 days as the Tribunal

has found out or whether the delay was 120 days as per the

contentions of the petitioners, is quite irrelevant in the context of

explanation offered. Suffice to state that the explanation offered is

certainly a plausible one and the same does not smack of any mala

fides. In these circumstances, case was made out for condonation of

delay.

14] Further, the Tribunal may not be right in insisting upon the

petitioners' explaining what steps they had taken to file the appeal

within the period of limitation. Normally, the applicant seeking

condonation of delay for preferring an appeal beyond the period

prescribed by the law of limitation, cannot be required to explain the

antecedent delay. In case of Ramlal & ors vs. Rewa Coalfields Ltd. -

AIR 1962 SC 361, the Supreme Court has held that the failure of

appellant to account for his non diligence during the whole of the

period of limitation prescribed for the appeal does not disqualify him

from praying for condonation of delay under Section 5 of the

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Limitation Act. That was a case where the appellant did not file the

appeal till the last day of limitation and as he fell ill on the last day

of limitation, he filed appeal thereafter asking for the delay to be

excused. In this context, it was held that the appellant's want of

diligence till the last day of limitation would not disqualify him from

apply for the excusing of delay. It was however, emphasized that

even after sufficient cause has been shown, a party is not entitled to

the condonation of delay in question as a matter of right. The proof

of a sufficient cause is a condition precedent for exercise of the

discretionary jurisdiction vested in the Court. This aspect of the

matter naturally introduces the consideration of all relevant facts

and it is at this stage that diligence of the party or its bona fides may

fall for consideration, but the scope of the enquiry while exercising

the discretionary power after sufficient cause is shown would

naturally be limited only to such facts as the Court may regard as

relevant. It cannot justify an enquiry as to why the party was sitting

idle during all the time available to it under the law prescribed in

period of limitation.

15] Similarly, in case of Shrimant Jadhavrao Anandrao Pawar &

ors vs. Dilip Balvantrao Pawar & anr. - (2002) 9 SCC 593, where

DSS [email protected] 1469-14

delay of 14 days in filing the appeal was properly explained, but

condonation was denied for failure to explain the steps taken by the

appellants upto the expiry of limitation period, the Supreme Court

interfered with the orders of the Additional District Judge and the

High Court, by observing thus :

5. We have perused the order of the learned Additional District Judge dismissing the appeal on the ground of limitation as also the impugned order of the High Court. We

are of the opinion that the approach of both the courts in the matter of condonation of delay has been erroneous. The

impugned order of the High Court shows that the Court was influenced by the fact that the period from 7-12-1998 to 1-1- 1999 had not been explained by the appellants. The High

Court is on record to say that even if the period from 1-1- 1999 to 13-1-1999 is treated to have been properly explained, the first appellate court committed no error in rejecting the appeal on the ground of delay because of the non-explanation of the delay between 7-12-1998 and 1-1-

1999. The period between 7-12-1998 to 1-1-1999 fell well within the period of limitation prescribed for filing the

appeal. The question of explaining that period did not arise. It is only the period of the those 14 days before the filing of the appeal which was required to be explained and proper

explanation for that period has been given, which was supported by medical certificate, which in the facts and circumstances of this case, we see no reason to disbelieve. The learned Additional District Judge was, therefore, in error in rejecting the application for condonation of delay for the period 7-12-1998 to 1-1-1999, vide order dated 15-11-1999

and the High Court also fell in error in dismissing the revision petition.

(emphasis supplied)

16] From the aforesaid, it is clear that the Tribunal was not right

in declining to condone the delay on the ground that the petitioners

DSS [email protected] 1469-14

allegedly failed to explain the steps taken by them to file the appeals

before expiry of limitation period. In any case, from the facts and

circumstances of the present case, it is clear that even before expiry

of the period of limitation, the petitioners addressed representations

complaining about their termination. There is nothing unreasonable

in the petitioners expectation that their grievances might have been

redressed by the authorities like Deputy Director of Education or for

that matter Minister of Education. The question is really not as to

whether such authorities have the jurisdiction to go into the question

of termination of teachers. The question is really whether the

expectation which the petitioners had regards redressal was entirely

misplaced. In the present case, it cannot be said that the expectation

was misplaced.

17] Therefore, considering cumulatively the aforesaid facts and

circumstances, the petitioners have definitely made out a case for

condonation of delay. The view taken by the School Tribunal is

vitiated by errors apparent on face of record as well as adoption of a

pedantic approach. In case of N.Balakrishnan vs. M. Krishnamurthy -

(1998) 7 SCC 123, the Supreme Court has held that once the Court

or Tribunal of the first instance accepts the explanation for the delay

DSS [email protected] 1469-14

as sufficient, it is the result of positive exercise of discretion and

normally the superior Court should not disturb such findings, unless

the exercise of discretion was on wholly untenable grounds or

arbitrary or perverse. But it is a different matter when Court or

Tribunal of the first instance refuses to condone the delay. In such a

case, the superior Court would be free to consider the cause shown

for the delay afresh and it is open to such superior Court to come to

its own finding even untrammeled by the conclusion of the court or

Tribunal of the first instance. The reason for such a different stance

is that the primary function of the court is to adjudicate the dispute

between the parties and to advance substantial justice. The time

limit fixed for approaching the court in different situations is not

because on the expiry of such time a bad cause would transform into

a good cause. The object is to prevent parties for resorting to dilatory

tactics and seeking remedies promptly. It must be remembered that

in every case of delay, there may be some lapse on the part of the

litigant concerned. That alone is not enough to turn down his plea

and to shut the door against him. If the explanation does not smack

of mala fides or it is not put forth as part of a dilatory strategy, the

Court must show utmost consideration to the suitor.

     DSS                                                                 [email protected] 1469-14



          18]    As noted earlier, in the facts and circumstances of the present

case, it cannot be said that explanation offered by the petitioners

smacked of mala fides or had been put forth as a part of dilatory

strategy. Therefore, unless it is established that the delay in filing the

appeals is culpable or attributable to some oblique motives or mala

fide intentions, a liberal approach should be adopted, so that the

parties are not deprived of at least one opportunity to have their

grievances redressed before the judicial forum especially created for

the purpose.

19] In view of the aforesaid discussion, the impugned orders dated

9 October 2013 in both the petitions, are quashed and set aside. The

petitioners applications for condonation of delay stand allowed. The

School Tribunal shall decide the appeals on their own merits. Rule is