Bombay High Court
Ayodhya Kisanrao Agarakar vs The Joint Director And Others on 25 August, 2015
Bench: R.V. Ghuge
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kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8538 OF 2015
WITH
WRIT PETITION NO.8539 OF 2015
WITH
WRIT PETITION NO.8540 OF 2015
WITH
WRIT PETITION NO.8623 OF 2015
WITH
WRIT PETITION NO.8630 OF 2015
WITH
WRIT PETITION NO.8631 OF 2015
ig WITH
WRIT PETITION NO.8632 OF 2015
Sanjay Sadashiv Jadhav,
Age : 42 years, Occ : Nil,
R/o Nitrud, Tq.Majalgaon,
Dist.Beed. ..Petitioner in WP/8538/2015.
Prakash Tulsiram Khalage,
Age : 45 years, Occ : Nil,
R/o Pimparkhed,
Tq.Wadwani, Dist.Beed. ..Petitioner in WP/8539/2015
Prashant Indarrao Pawar,
Age : 39 years, Occ : Nil,
R/o Shinde Takali,
Tq.Selu, Dist.Parbhani. ..Petitioner in WP/8540/2015
Pandurang Dhondiba Maske,
Age : 47 years, Occ : Nil,
R/o Bahegavan,
Tq.Wadwani, Dist.Beed. ..Petitioner in WP/8623/2015
Ayodhya Kisanrao Agarakar,
Age : 40 years, Occ : Nil,
R/o Wadwani,
Tq.Wadwani, Dist.Beed. ..Petitioner in WP/8630/2015
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Jyotiram Haribhau Jadhav,
Age : 37 years, Occ : Nil,
R/o Bahegavan,
Tq.Wadwani, Dist.Beed. ..Petitioner in WP/8631/2015
Ganesh Sadashiv Lomte,
Age : 44 years, Occ : Nil,
R/o Jod Hingani,
Tq.Dharur, Dist.Beed. ..Petitioner in WP/8632/2015
-VERSUS-
1 The Joint Director,
Higher Education, Aurangabad Division,
Aurangabad.
2 Rashtriya Shikshan Prasarak Mandal,
Beed. Through it's Secretary,
C/o Matimand Vidhyalaya,
Sahayognagar, Beed,
Tq. & Dist.Beed.
3 Lokmanya Tilak College,
Wadwani. Through it's Principal,
Tq.Wadwani, Dist.Beed.
...RESPONDENTS in all petitions.
...
Advocate for Petitioner : Shri R.D.Kadap h/f Shri Thombre S.S.
AGPs for Respondent No.1/State : Smt.S.D.Shelke, Smt.V.A.Shinde, Shri
U.H.Bhogle and Shri D.R.Korde.
Advocate for Respondents : Shri Gore R V for R/2 & R/3.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 25th August, 2015
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Oral Judgment:
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 The Petitioners in all these petitions were the employees of
Respondent No.2/ Institution and were working with Respondent No.3/
College till their termination dated 17.04.2012 communicated to them on
21.04.2012. The Petitioners are identically placed and the Respondents in
all these petitions are the same.
3 The Petitioners are said to have been terminated by the order
dated 17.04.2012 which was communicated to them by the Institution on
21.04.2012. These Petitioners approached the Division Bench of this Court
in Writ Petition Nos.4305/2012, 4307/2012 and 6672/2012. By order
dated 30.10.2012, this Court disposed of the petitions by observing that
the Petitioners have an alternate statutory remedy of approaching the
University and College Tribunal (for short, hereinafter referred to as
"Tribunal"). All the issues were kept open.
4 The Petitioners filed their Appeals before the Tribunal on
05.02.2013 along with the applications for condonation of delay. It was
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stated that the delay was of about 259 days. By the impugned order dated
03.08.2015, all Miscellaneous Application Nos.1/2013 to 07/2013 filed by
these Petitioners for condonation of delay, were rejected and the delay was
not condoned by the Tribunal.
5 The Petitioners submit that earlier they had preferred the Writ
Petitions on or about 05.05.2012 before this Court. The same were
disposed of by the order dated 30.10.2012. The Petitioners thus, lost
about five months in this Court. It is hence submitted that delay of 259
days is neither deliberate nor inordinate. The circumstances on account of
which the delay was caused, were set out in the miscellaneous
applications. The Tribunal has rejected the said applications on the ground
that the Limitation Act requires that the suits or proceedings instituted
after the prescribed period of limitation, shall be dismissed. Section 5 of
the Limitation Act vests the Court with a discretion to accept an appeal or
application after the expiry of the prescribed period, if sufficient cause is
shown.
6 It is further submitted that the Tribunal concluded that the
Petitioners should have approached the Tribunal immediately after the
Writ Petitions were disposed of by this Court. The reasons cited are not
sufficient and are not satisfactory. The delay is not properly explained.
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7 The Petitioners further submit that the Tribunal should have
considered that all the Petitioners have lost their employment. Their
grievance against their termination and continued unemployment could
only be raised before the Tribunal. If the delay was not condoned, the
Petitioners would be kept away from the Court of Law and would not be
in a position to seek redressal of their grievance. It is, therefore, submitted
that a strict view in the matters of condonation of delay ought not to have
been taken and hence, these petitions deserve to be allowed.
8 Shri Gore, learned Advocate for Respondent Nos.2 and 3, has
strenuously supported the impugned order. It is stated that after the
Division Bench of this Court disposed of the Writ Petitions, the Petitioners
were made aware of the forum before whom they could present their
grievance. The Appeals should have been filed within 30 days which is
prescribed under the Maharashtra Universities Act, 1994. The Petitioners
have slept over their rights and have intentionally caused the delay. This
would have an effect on the back-wages if eventually the Appeals are
allowed.
9 Shri Gore, therefore, submits that the impugned order
delivered by the Tribunal is supported with reasons. The Tribunal noted
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that the reasons put forth are not sufficient and hence, rejected all the
miscellaneous applications. The impugned order is neither perverse nor
erroneous.
10 In the alternative, it is submitted that in the event this Court
comes to a conclusion that these petitions deserve to be allowed, each of
the Petitioners be saddled with costs of Rs.10,000/- for causing the delay
and the costs be paid to Respondent No.2.
11 I have considered the submissions of the learned Advocates
who have taken me through the impugned orders. It is not in dispute that
these Petitioners had preferred the Writ Petitions before the Division
Bench of this Court and which were disposed of on 30.10.2012 observing
that an alternate remedy of approaching the Tribunal was available to the
Petitioners. No doubt, the Petitioners, therefore, became aware of the
forum before which they could challenge their termination. They could
have acted with promptitude. However, the delay that is caused after the
disposal of the Writ Petitions, can neither be said to be inordinate nor
deliberate. A liberal approach is required to be adopted in the matters of
condonation of delay.
12 In my view, the following factors are decisive in the matter of
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condonation of delay:-
(a) Whether, the Petitioners would be rendered remedy-less if
their applications for condonation of delay are rejected?
(b) Whether, the delay has been caused deliberately?
(c) Whether, the delay can be said to be inordinate?
(d) Whether, a pragmatic approach deserves to be taken in the
matters of condonation of delay?
(e) Whether, the litigant can be said to be in a position of
deriving undue advantage by causing the delay in their
matters?
(f) Whether, laches are attributable to the conduct of the
Petitioners?
(g) Whether, a pedantic approach is to be avoided?
13 The Apex Court in the case of Collector, Land Acquisition,
Anantnag v/s Mst.Katiji, reported in AIR 1987 SC 1353, has observed in
paragraph 3 as follows:-
"3. The legislature has conferred the power to condone
delay by enacting Section 51 of the Indian Limitation
Act of 1963 in order to enable the Courts to do
substantial justice to parties by disposing of matters
on merits. The expression "sufficient cause" employed
by the legislature is adequately elastic to enable the
courts to apply the law in a meaningful manner
which subserves the ends of justice that being the life-
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purpose for the existence of the institution of Courts.
It is common knowledge that this Court has been
making a justifiably liberal approach in matters
instituted in this Court. But the message does not
appear to have percolated down to all the other
Courts in the hierarchy. And such a liberal approach
is adopted on principle as it is realized that:-
"Any appeal or any application, other than an
application under any of the provisions of Order XXI
of the Code of Civil Procedure, 1908 may be admitted
after the prescribed period if the appellant or the
applicant satisfies the court that he had sufficient
cause for not preferring the appeal or making the
application within such period."
1.
Ordinarily a litigant does not stand to benefit
by lodging an appeal late.
2. Refusing to condone delay can result in a
meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As
against this when delay is condoned the highest that
can happen is that a cause would be decided on merits
after hearing the parties.
3. "Every day's delay must be explained" does not
mean that a pedantic approach should be made. Why
not every hour's delay, every second's delay? The
doctrine must be applied in a rational common sense
pragmatic manner.
4. When substantial justice and technical
considerations are pitted against each other, cause of
substantial justice deserves to be preferred for the
other side cannot claim to have vested right in
injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is
occasioned deliberately, or on account of culpable
negligence, or on account of mala-fides. A litigant
does not stand to benefit by resorting to delay. In fact
he runs a serious risk.
6. It must be grasped that judiciary is respected
not on account of its power to legalize injustice on
technical grounds but because it is capable of
removing injustice and is expected to do so.
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Making a justice-oriented approach from this
perspective, there was sufficient cause for condoning
the delay in the institution of the appeal. The fact that
it was the State which was seeking condonation and
not a private party was altogether irrelevant. The
doctrine of equality before law demands that all
litigants, including the State as a litigant, are
accorded the same treatment and the law is
administered in an even handed manner. There is no
warrant for according a stepmotherly treatment when
the State is the applicant praying for condonation of
delay. In fact experience shows that on account of an
impersonal machinery (no one in charge of the matter
is directly hit or hurt by the judgment sought to be
subjected to appeal) and the inherited bureaucratic
methodology imbued with the note-making, file
pushing, and passing-on-the-buck ethos, delay on its
part is less difficult to understand though more
difficult to approve. In any event, the State which
represents the collective cause of the community, does
not deserve a litigant-non-grata status. The Courts
therefore have to be informed with the spirit and
philosophy of the provision in the course of the
interpretation of the expression "sufficient cause". So
also the same approach has to be evidenced in its
application to matters at hand with the end in view to
do even-handed justice on merits in preference to the
approach which scuttles a decision on merits. Turning
to the facts of the matter giving rise to the present
appeal, we are satisfied that sufficient cause exists for
the delay. The order of the High Court dismissing the
appeal before it as time barred, is therefore, set aside.
Delay is condoned. And the matter is remitted to the
High Court. The High Court will now dispose of the
appeal on merits after affording reasonable
opportunity of hearing to both the sides."
14 In the instant case, I do not find that laches are attributable to
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the conduct of the Petitioners. The delay is not too long so as to be termed
as inordinate. The Petitioners derive no benefit out of causing the delay
since they would infact put their interest in jeopardy.
15 Considering the above fact situation, I find that the impugned
order passed by the Tribunal would result in causing grave injustice to the
Petitioners. This Court is, therefore, required to cause an interference in
the light of the ratio laid down by the Apex Court in the case of Syed
Yakoob v/s K.S.Radhakrishnan, AIR 1964 SC 477 and Surya Dev Rai v/s
Ram Chander Rai, AIR 2003 SC 3044.
16 In the light of the above, these Writ Petitions are allowed in
the following terms:-
(a) The impugned orders dated 03.08.2015 delivered by the
Tribunal are quashed and set aside. Miscellaneous Application
Nos.1/2013 to 07/2013 stand allowed.
(b) The Petitioners shall deposit costs of Rs.2000/- (Rupees Two
Thousand) each before the Tribunal within SIX WEEKS from
today.
(c) Respondent No.2 shall withdraw the said amount without
conditions.
(d) The Tribunal shall register the Appeals preferred by the
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Petitioners.
(e) In order to avoid wastage of time, the litigating parties shall
appear before the Tribunal on 21.09.2015. Formal notices,
therefore, need not be issued to the litigating sides.
17 Rule is, therefore, made absolute in the aforesaid terms.
ig (RAVINDRA V. GHUGE, J.)
