Bombay High Court
Popat Sitaram Godge vs Registrar,Amrutwahini Udyog ... on 1 October, 2015
Bench: R.V. Ghuge
*1* 903.wp.3778.98
kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3778 OF 1998
WITH
CIVIL APPLICATION NO.1492 OF 2006
IN WP/3778/1998
Popat Sitaram Godge,
Age : 29 years, Occ : Nil,
R/o Chincholi Gurav,
Tq.Sangamner,
District Ahmednagar.
ig ...PETITIONER
-VERSUS-
1 The Registrar,
Amrutwahini Udyog Sheti
Va Shikshan Vikas Sansthan,
At & Post Sangamner Sakhar
Karkhana, Tq.Sangamner,
District Ahmednagar.
2 The Principal,
Amrutwahini Model School,
Amrutwahini, Tq.Sangamner,
District Ahmednagar. ...RESPONDENTS
...
Advocate for Petitioner : Shri P.B.Shirsath a/w Shri S.V.Suryawanshi.
Advocate for Respondent Nos.1 and 2 : Shri R N Dhorde, Senior Advocate
h/f Shri Mobin Shaikh.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 01st October, 2015
Oral Judgment:
1 This matter was admitted by order dated 09.09.1999. I have
gone through the petition paper book and I have considered the impugned
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order and the documents which form the part of the compilation.
2 The Petitioner has filed this petition on account of refusal of
the School Tribunal in condoning the delay caused in preferring the
appeal before the School Tribunal. The Application for condonation of
delay Exhibit-2 has been rejected by the impugned order dated
04.07.1998.
It appears from the record that the Petitioner, who was
terminated on 22.05.1994, has filed the appeal on 14.08.1997. On advise,
he initially preferred the civil suit before the Civil Court for challenging his
termination. Further, on advise, he had filed a complaint before the
Industrial Court and subsequently has filed a writ petition before this
Court. The School Tribunal has recorded these aspects.
4 It was stated by the Petitioner before the School Tribunal that
after he realized that the jurisdiction to deal with his termination dated
22.05.1994 was with the School Tribunal, he has withdrawn the petition
and has filed the appeal before the School Tribunal. The School Tribunal
has, therefore, recorded that from the date of withdrawal of the petition,
six months have lapsed after which the appeal was filed. Hence, the
application was rejected.
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5 Shri R.N.Dhorde, learned Senior Advocate appearing for
Respondents/ Educational Institution, has drawn my attention to the
affidavit in reply filed by the Respondents/ Educational Institution on
27.07.1999. He points out that the Petitioner had remained absent and
had abandoned his service. Hence, his service was terminated w.e.f.
27.05.1994.
He further points out that the Petitioner filed Regular Civil
Suit No.327/1994 for challenging his termination before the Civil Court
on 30.07.1994. Realizing that the Civil Court had no jurisdiction, he
withdrew the said suit on 15.11.1994. He, thereafter, filed Complaint
(ULP) No.370/1994 on 24.11.1994 before the Industrial Court at
Ahmednagar. The same was also withdrawn after realizing that the
Industrial Court had no jurisdiction. He then preferred Writ Petition
No.334/1995 before this Court which was pending for almost two years.
He sought liberty to withdraw the petition on 11.07.1997 so as to prefer
an appeal before the School Tribunal.
7 Shri Dhorde, therefore, submits that these are mischievous
acts on the part of the Petitioner. It was an attempt to choose a forum.
Even after withdrawing the petition from this Court on 11.07.1997, his
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appeal was preferred after a lapse of six months. No leniency, therefore,
deserves to be granted to the Petitioner inasmuch as this Court should not
express any sympathy towards the Petitioner. He prays that this petition be
dismissed with costs as the impugned order of the School Tribunal, which
takes stock of the entire situation, is neither perverse nor erroneous and
therefore, calls for no interference.
8 I have considered the submissions of the learned Advocates
for the rival sides.
9 The Apex Court, in the case of Collector, Land Acquisition,
Anantnag v/s Mst.Katiji, AIR 1987 SC 1353, while dealing with the issue
of delay, has observed in paragraph 3 as under:-
"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-
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
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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.
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
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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."
10 The Apex Court, in a recent judgment in the case of Esha
Bhattacharjee v/s Managing Committee of Raghunathpur Nafar Academy,
(2013) 12 SCC 649, has laid down certain contingencies which are to be
fulfilled if the delay is to be condoned in the matter. Paragraphs 8 to 22
read as under:-
"8. Before we delve into the factual scenario and the
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defensibility of the order condoning delay, it is
seemly to state the obligation of the court while
dealing with an application for condonation of delay
and the approach to be adopted while considering the
grounds for condonation of such colossal delay.
9. In Collector, Land Acquisition, Anantnag and another
v. Mst. Katiji and others [(1987) 2 SCC 107], a
two-Judge Bench observed that:
"3. The legislature has conferred power to
condone delay by enacting Section 5 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-purpose for the existence of the
institution of courts."
The learned Judges emphasized on adoption of
a liberal approach while dealing with the
applications for condonation of delay as ordinarily
a litigant does not stand to benefit by lodging an
appeal late and refusal to condone delay can result
in an meritorious matter being thrown out at the
very threshold and the cause of justice being defeated.
10. It was stressed that there should not be a pedantic
approach but the doctrine that is to be kept in mind is
that the matter has to be dealt with in a rational
commonsense pragmatic manner and cause of
substantial justice deserves to be preferred over the
technical considerations. It was also ruled that
there is no presumption that delay is occasioned
deliberately or on account of culpable negligence and
that the courts are not supposed to legalise
injustice on technical grounds as it is the duty of the
court to remove injustice.
11. In the said case the Division Bench observed that
the State which represents the collective cause of
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the community does not deserve a litigant-non-
grata status and the courts are required to be
informed with the spirit and philosophy of the
provision in the course of interpretation of the
expression "sufficient cause".
12. In G. Ramegowda, Major and others v. Special
Land Acquisition Officer, Bangalore [(1998) 2 SCC
142], Venkatachaliah, J. (as his Lordship then was),
speaking for the Court, has opined thus:-
"14. The contours of the area of discretion of
the courts in the matter of condonation of delays in
filing appeals are set out in a number of
pronouncements of this Court. See : Ramlal, Motilal
and Chhotelal v. Rewa Coalfield Ltd.[AIR 1962 SC
361] ; Shakuntala Devi Jain v. Kuntal Kumari [AIR
1969 SC 575] ; Concord of India Insurance Co. Ltd.
V. Nirmala Devi [(1979) 4 SCC 365] ; Lala Mata Din
v. A. Narayanan [(1969) 2 SCC 770] ; Collector,
Land Acquisition v. Katiji etc. There is, it is true, no
general principle saving the party from all mistakes
of its counsel. If there is negligence, deliberate or
gross inaction or lack of bona fide on the part of the
party or its counsel there is no reason why the
opposite side should be exposed to a time-barred
appeal. Each case will have to be considered on the
particularities of its own special facts. However,
the expression 'sufficient cause' in Section 5 must
receive a liberal construction so as to advance
substantial justice and generally delays in
preferring appeals are required to be condoned in
the interest of justice where no gross negligence or
deliberate inaction or lack of bona fides is imputable
to the party seeking condonation of the delay."
13. In O.P. Kathpalia v. Lakhmir Singh (dead) and
others [(1984) 4 SCC 66], the court was dealing
with a fact-situation where the interim order passed
by the court of first instance was an interpolated
order and it was not ascertainable as to when the
order was made. The said order was under appeal
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before the District Judge who declined to condone
the delay and the said view was concurred with by
the High Court. The Court, taking stock of the facts,
came to hold that if such an interpolated order is
allowed to stand, there would be failure of justice
and, accordingly, set aside the orders impugned
therein observing that the appeal before the District
Judge deserved to be heard on merits.
14. In State of Nagaland v. Lipok AO and others [(2005)
3 SCC 752], the Court, after referring to New India
Insurance Co. Ltd. V. Shanti Misra [(1975) 2 SCC
840], N. Balakrishnan v. M. Krishnamurthy [AIR
1998 SC 3222], State of Haryana v. Chandra Mani
[(1996) 3 SCC 132] and Special Tehsildar, Land
Acquisition v. K.V. Ayisumma [(1996) 10 SCC 634],
came to hold that adoption of strict standard of
proof sometimes fails to protect public justice and it
may result in public mischief.
15. In this context, we may refer with profit to the
authority in Oriental Aroma Chemical Industries
Limited v. Gujarat Industrial Development
Corporation and another [(2010) 5 SCC 459], where
a two-Judge Bench of this Court has observed that:-
"14. The law of limitation is founded on
public policy. The legislature does not prescribe
limitation with the object of destroying the rights of
the parties but to ensure that they do not resort to
dilatory tactics and seek remedy without delay.
The idea is that every legal remedy must be kept
alive for a period fixed by the legislature. To put
it differently, the law of limitation prescribes a
period within which legal remedy can be availed
for redress of the legal injury. At the same time, the
courts are bestowed with the power to condone the
delay, if sufficient cause is shown for not availing the
remedy within the stipulated time."
Thereafter, the learned Judges proceeded to state
that this Court has justifiably advocated adoption of
liberal approach in condoning the delay of short
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duration and a stricter approach where the delay is
inordinate.
16. In Improvement Trust, Ludhiana v. Ujagar Singh and
others [(2010) 6 SCC 786], it has been held that:-
"16. While considering an application for
condonation of delay no straitjacket formula is
prescribed to come to the conclusion if sufficient
and good grounds have been made out or not."
It has been further stated therein that each case has
to be weighed from its facts and the circumstances in
which the party acts and behaves.
17. A reference to the principle stated in Balwant Singh
(dead) v. Jagdish Singh and others [(2010) 8 SCC
685] would be quite fruitful. In the said case the
Court referred to the pronouncements in Union of
India v. Ram Charan [AIR 1964 SC 215], P.K.
Ramachandran v. State of Kerala [(1997) 7 SCC
556] and Katari Suryanarayana v. Koppisetti Subba
Rao [(2009) 11 SCC 183] and stated thus:-
"25. We may state that even if the term
"sufficient cause" has to receive liberal construction,
it must squarely fall within the concept of reasonable
time and proper conduct of the party concerned. The
purpose of introducing liberal construction normally
is to introduce the concept of "reasonableness" as it
is understood in its general connotation.
26. The law of limitation is a substantive
law and has definite consequences on the right and
obligation of a party to arise. These principles
should be adhered to and applied appropriately
depending on the facts and circumstances of a
given case. Once a valuable right has accrued in
favour of one party as a result of the failure of the
other party to explain the delay by showing
sufficient cause and its own conduct, it will be
unreasonable to take away that right on the mere
asking of the applicant, particularly when the delay
is directly a result of negligence, default or
inaction of that party. Justice must be done to both
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parties equally. Then alone the ends of justice can
be achieved. If a party has been thoroughly negligent
in implementing its rights and remedies, it will be
equally unfair to deprive the other party of a
valuable right that has accrued to it in law as a
result of his acting vigilantly."
18. Recently in Maniben Devraj Shah v. Municipal
Corporation of Brihan Mumbai [(2012) 5 SCC 157],
the learned Judges referred to the pronouncement in
Vedabai v. Shantaram Baburao Patil [(2001) 9 SCC
106] wherein it has been opined that a distinction
must be made between a case where the delay is
inordinate and a case where the delay is of few days
and whereas in the former case the consideration
of prejudice to the other side will be a relevant
factor, in the latter case no such consideration
arises. Thereafter, the two-Judge Bench ruled
thus:-
"23. What needs to be emphasized is that
even though a liberal and justice-oriented approach
is required to be adopted in the exercise of power
under Section 5 of the Limitation Act and other
similar statutes, the courts can neither become
oblivious of the fact that the successful litigant has
acquired certain rights on the basis of the judgment
under challenge and a lot of time is consumed at
various stages of litigation apart from the cost.
24. What colour the expression "sufficient
cause" would get in the factual matrix of a given case
would largely depend on bona fide nature of the
explanation. If the court finds that there has been
no negligence on the part of the applicant and the
cause shown for the delay does not lack bona fides,
then it may condone the delay. If, on the other hand,
the explanation given by the applicant is found to be
concocted or he is thoroughly negligent in
prosecuting his cause, then it would be a
legitimate exercise of discretion not to condone the
delay."
19. Eventually, the Bench upon perusal of the
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application for condonation of delay and the affidavit
on record came to hold that certain necessary facts
were conspicuously silent and, accordingly, reversed
the decision of the High Court which had condoned
the delay of more than seven years.
20. In B. Madhuri Goud v. B. Damodar Reddy [(2012) 12
SCC 693], the Court referring to earlier decisions
reversed the decision of the learned single Judge who
had condoned delay of 1236 days as the explanation
given in the application for condonation of delay was
absolutely fanciful.
21. From the aforesaid authorities the principles that
can broadly be culled out are:
i) There should be a liberal, pragmatic, justice-
oriented, non-pedantic approach while dealing with
an application for condonation of delay, for the
courts are not supposed to legalise injustice but are
obliged to remove injustice.
ii) The terms "sufficient cause" should be
understood in their proper spirit, philosophy and
purpose regard being had to the fact that these terms
are basically elastic and are to be applied in proper
perspective to the obtaining fact- situation.
iii) Substantial justice being paramount and
pivotal the technical considerations should not be
given undue and uncalled for emphasis.
iv) No presumption can be attached to deliberate
causation of delay but, gross negligence on the part
of the counsel or litigant is to be taken note of.
v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
vi) It is to be kept in mind that adherence to
strict proof should not affect public justice and cause
public mischief because the courts are required to be
vigilant so that in the ultimate eventuate there is no
real failure of justice.
vii) The concept of liberal approach has to
encapsule the conception of reasonableness and it
cannot be allowed a totally unfettered free play.
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viii) There is a distinction between inordinate delay
and a delay of short duration or few days, for to the
former doctrine of prejudice is attracted whereas to
the latter it may not be attracted. That apart, the
first one warrants strict approach whereas the
second calls for a liberal delineation.
ix) The conduct, behaviour and attitude of a party
relating to its inaction or negligence are relevant
factors to be taken into consideration. It is so as the
fundamental principle is that the courts are required
to weigh the scale of balance of justice in respect of
both parties and the said principle cannot be given a
total go by in the name of liberal approach.
x) If the explanation offered is concocted or the
grounds urged in the application are fanciful, the
courts should be vigilant not to expose the other side
unnecessarily to face such a litigation.
xi) It is to be borne in mind that no one gets away
with fraud, misrepresentation or interpolation by
taking recourse to the technicalities of law of
limitation.
xii) The entire gamut of facts are to be carefully
scrutinized and the approach should be based on
the paradigm of judicial discretion which is founded
on objective reasoning and not on individual
perception.
xiii) The State or a public body or an entity
representing a collective cause should be given some
acceptable latitude.
22. To the aforesaid principles we may add some more
guidelines taking note of the present day scenario.
They are :-
a) An application for condonation of delay
should be drafted with careful concern and not in a
half hazard manner harbouring the notion that
the courts are required to condone delay on the
bedrock of the principle that adjudication of a lis
on merits is seminal to justice dispensation system.
b) An application for condonation of delay should
not be dealt with in a routine manner on the base of
individual philosophy which is basically subjective.
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c) Though no precise formula can be laid down
regard being had to the concept of judicial
discretion, yet a conscious effort for achieving
consistency and collegiality of the adjudicatory
system should be made as that is the ultimate
institutional motto.
d) The increasing tendency to perceive delay as
a non-serious matter and, hence, lackadaisical
propensity can be exhibited in a nonchalant manner
requires to be curbed, of course, within legal
parameters."
11 I find from the record available that laches/ motives cannot
be attributed to the conduct of the Petitioner. He was working as a Typist-
cum- Clerk with the Respondent/ Institution. Apparently, on a legal
advise, he had preferred the civil suit and on realizing lack of jurisdiction
in the Civil Court, he had withdrawn the said suit. Similar is the case in
filing the complaint before the Industrial Court and the writ petition
before this Court, which were withdrawn.
12 The Petitioner has permanently lost his employment. He is
practically rendered remedy-less. If the doors of litigation are closed upon
him, he would not be in a position, in his lifetime, to challenge his
purported illegal/ stigmatic termination. From the affidavit in reply filed
by the Respondent/ Institution, it appears that the Respondent/ Institution
claims that the Petitioner has abandoned employment and had remained
unauthorizedly absent and hence, has been terminated. These aspects
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need to be gone into by a court of competent jurisdiction.
13 It is well settled that the Court should take a pragmatic view
in the matters of delay rather taking a pedantic approach. I find that the
impugned order passed by the School Tribunal reflects a pedantic
approach.
14 The rigours of litigation suffered by the Respondent/
Institution could be mitigated by depriving the Petitioner of all incidental
and consequential benefits in the event he succeeds before the School
Tribunal for the period of delay, save and except the notional continuity of
service.
15 Since I find that the Petitioner has not acted intentionally or
deliberately and the delay caused is neither willful nor with oblique
motives, I conclude that the impugned order deserves to be set aside so as
to enable the Petitioner to canvass his grievance against the termination.
16 In the light of the above, this Writ Petition is partly allowed to
the extent of quashing and setting aside the impugned order dated
04.07.1998. Application Exhibit-2, therefore, stands allowed and the delay
stands condoned.
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17 Nevertheless, the period from the date of termination which is
22.05.1994 till the filing of the appeal on 14.08.1997 shall be considered
by the School Tribunal for depriving the Petitioner of all incidental and
consequential benefits, save and except the notional continuity of service
in the event his appeal is allowed.
18 The litigating parties shall appear before the School Tribunal
on 19.10.2015 and shall refrain from seeking unnecessary adjournments.
Formal notices need not be issued to the parties.
19 Since the appeal was presented in 1997 and as this petition
was pending in this Court ever since, I am hereby directing the School
Tribunal to register the appeal and decide the same on it's own merits, as
expeditiously as possible and preferably on or before 30.04.2016.
20 Rule is, therefore, made partly absolute in the aforesaid
terms.
21 The pending Civil Application does not survive and hence, is
disposed of.
(RAVINDRA V. GHUGE, J.)
