Bombay High Court

Ramkishan Namdeorao Adude vs Dnyanopasak Shikshan Mandals ... on 8 March, 2016

Bench: R.V. Ghuge

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                        
                         BENCH AT AURANGABAD                                                  
                                                  

                                              WRIT PETITION NO.1675/2016




                                                       
                                        Shri Ramkishan s/o Namdeorao Adude,
                                        aged 45 yrs., occu.service,
                                        r/o Nanded Tq.Nanded Dist.Nanded.    




                                               
                                                          ...Petitioner..

                             Versus
                                   
                                  
                              1]        Dnyanopasak Shikshan Mandal's,
                                        Through its President 
                                        Adv. G.N. Dudhgaonkar,
                                        r/o Jintur Tq.Jintur
                                        Dist.Parbhani.
      


                              2]        Dnyanopasak Shikshan Mandal's,
   



                                        Through its Secretary
                                        Dr.Sandhya Ganeshrao Dudhgaonkar,
                                        r/o Jintur Tq.Jintur
                                        Dist.Parbhani.





                              3]        Dr.S.L. Sadawarte,
                                        age major, occu.service,
                                        r/o Jintur Tq.Jintur
                                        Dist.Parbhani. 





                                                           ...Respondents... 
                                                                            

                              .....
    Shri T.K. Prabhakaran, Advocate for petitioner.
    Shri R.N. Dhorde, Senior Advocate i/b Shri V.R. Dhorde, 
    Advocate for respondents.
                                                            
                              .....
      




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                                          CORAM: RAVINDRA V. GHUGE, J.

DATE: 08.03.2016

ORAL JUDGMENT :

1] Rule. Rule made returnable forthwith and heard

finally by the consent of the parties.

2] The petitioner has challenged the order dated

9.12.2015 delivered by the University and College

Tribunal thereby rejecting Miscellaneous Application

No.8/2012 and refusing to condone the delay of 15 months

and 25 days in filing the appeal.

3] Shri T.K. Prabhakaran, learned Advocate for the

petitioner, submits that in all four reasons were put

forth by the petitioner for seeking condonation of delay.

Firstly, that his mother was unwell and she expired

after his termination on 15.4.2011.

Secondly, on account of the demise of his mother and

coupled with his termination from service on 15.4.2011,

he suffered neurological problems and himself had to take

medical assistance.

Thirdly, the learned Advocate informed him that the

Tribunal was vacant and even if an appeal is filed, the

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same may not be entertained due to the absence of the

Presiding Officer of the Tribunal.

Fourthly, the delay caused is not deliberate and

intentional.

4] He further submits that the Tribunal has failed

to consider the application for condonation of delay and

has rejected the same on the ground that the delay is not

properly explained and that he has resumed his duty as a

Chemical Analyst with the University with whom he had

maintained a lien on the post, which he occupied prior to

joining respondent no.1 - college.

5] He, therefore, submits that the Tribunal is not

expected to look into those events, which are not germane

to the cause of action, but should consider those

factors, which have been put forth as reasons for the

delay caused in filing an appeal for challenging the

order of termination. He further submits that the delay

is not to be explained on day-to-day basis. He relies

upon the reported judgment of this Court in the matter of

Ware's Educational Trust & another v. Subhash Bhagwan

Khedkar & another (2015 (2) Mah.L.J., 870).

6] Shri Dhorde, the learned Senior Advocate

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appearing on behalf of all the respondents strenuously

opposes this petition. While supporting the impugned

order, he relies upon the affidavit in reply filed on

behalf of respondents before this Court. He points out

the dates and events set out in the affidavit in reply to

support his contention that the petitioner, after being

terminated on 15.4.2011 (as his service period was not

satisfactory), has joined the post of Chemical Analyst in

the Chemistry Department of Nanded University on

19.4.2011. Though he submits that his mother passed

away, the said unfortunate incident has occurred on

9.7.2011, whereas the appeal has been filed in August,

2012.

7] Shri Dhorde, therefore, submits that even if the

said demise of his mother is considered, after 9.7.2011,

he continued to be on duty with Nanded University and

after almost a year, the appeal has been filed.

8] He further submits that though the delay of 15

months and 25 days may not appear to be inordinate, the

reason cited for seeking condonation of delay amounts to

taking up a false plea. He relies upon the judgment of

the Hon'ble Supreme Court in the case of Pundlik Jalam

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Patil (D) by L.Rs. v. Executive Engineer, Jalgaon Medium

Project & another (2008 (6) ALL MR 954 (SC). He,

therefore, prays for the dismissal of this petition.

9] I have considered the submissions of the learned

Advocates.

10] It is trite law that in matters of delay, the

Courts are expected to take a pragmatic approach rather

than taking a pedantic approach. If the delay is not

deliberate or inordinate and if laches are not attributed

to the conduct of the applicant, condonation of delay

could be liberally considered. So also if an applicant

gains any undue advantage by causing the delay, the

application for condonation of delay filed by such an

applicant is not to be considered liberally.

11] In my view, what is required to be considered is

as to whether the doors of justice would be closed on a

litigant by rejecting an application for condonation of

delay, provided that the delay is not deliberate,

inordinate, laches are not attributed to the conduct of

the applicant and he does not gain any advantage by

causing delay.

12] The Apex Court in the case of Collector, Land

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Acquisition, Anantnag v. Mst.Katiji (AIR 1987 SC 1353)

has laid down the law as follows :-

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

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

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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." (emphasis supplied)

13] It is, therefore, trite law that each and every

day's delay is not to be explained. There must be a

reasonable explanation for the delay caused and the delay

must not appear to be inordinate.

14] In the instant case, the delay is about 15

months and 25 days. If the same is not condoned, the

petitioner would not be able to challenge his purportedly

unlawful termination before any Court and he would be

deprived of a valuable right only on account of the

technicality of delay. From the point of view of doing

justice to the parties, I am of the view that by

condoning delay, the highest that can happen is that

there would be a decision on merits, which is better than

depriving a litigant from getting justice owing to

technicalities.

15] As has been observed by the Hon'ble Supreme

Court in the matter of Collector, Land Acquisition,

Anantnag, by condonation of delay, the matter would be

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decided on its merits and ends of justice would be met.

16] The respondents have relied upon paragraph no.11

of the Pundlik Jalam Patil case (supra), which reads as

under:-

"11. Whether the respondent made incorrect statement in the application seeking condonation of delay?

There is no dispute whatsoever that the respondent being the beneficiary of the

acquisition has been duly impleaded as a party respondent in the reference cases as is required

in law. It not only appeared in the matter through a properly instructed counsel but also filed its written statement opposing the claim

for enhancement of compensation but did not

choose to lead any evidence whatsoever. In the application filed in the High Court the plea taken by the respondent is as under:

"The applicant submits that, although the applicant being Acquiring Body, was arrayed as opponent in the said reference,

the opponent no. 4 herein (Original Opponent No. 1) S.L.A.O. or his subordinate contested the said reference by filing written statement. Therefore, this applicant was unaware about the stand taken by S.L.A.O. as well as the impugned judgment and award."

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This averment in the application on the face of

it is totally incorrect. The Law & Judiciary Department as early as on 13.4.2000 i.e. to say

within the period of 15 days from the date of the award of the Reference Court communicated its decision to acquiesce in the decision of the

Reference Court and communicated the same to all the concerned including the beneficiary of the acquisition. It is not the case that the

Executive Engineer did not receive the said

communication. Having received the said communication the respondent did not act in the

matter and initiated any steps for filing the appeals if it was really aggrieved by the decision of the Reference Court. There is no

doubt whatsoever in our mind that the respondent

made totally incorrect statement in the application filed in the High Court. We express our reservation as to the manner in which a

public authority conducted itself in its anxiety to somehow get the relief from the court. In our considered opinion incorrect statement made in the application seeking condonation of delay

itself is sufficient to reject the application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay. That a party taking a false stand to get rid of the bar of limitation should not be encouraged to get any premium on the falsehood on his part by

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