Kundan Pandit Bhosale vs The State Of Maharashtra And ...
2017 Latest Caselaw 7079 Bom

                                       1

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                        WRIT PETITION NO. 3409 OF 2017

          Kundan Pandit Bhosale,
          Age. 27 years, Occ. Nil,
          R/o. At post Andur, Tq. Tuljapur,
          District Osmanabad.                                     ...Petitioner.
           
                  Versus

 1.       The State of Maharashtra.

 2.       The President/Secretary,
          Shivaji Tarun Mandal,
          at post Jalkot, Taluka Tuljapur,
          District Osmanabad.

 3.       The Head Master,
          Parvati Kanya Prashala,
          At post. Jalkot, Taluka Tuljapur,
          District Osmanabad.

 4.       The Education Officer (Secondary),
          Zilla Parishad, Osmanabad,
          Distritct Osmanabad.

          Advocate for Petitioner : Shri Cedric Fernandez
          h/f. Shri A.N. Kakade. 
          AGP for Respondent Nos. 1 to 4 : Shri N.T. Bhagat.
          Advocate for Respondent Nos. 2 & 3 : Shri S.S. Jadhavar.

                                          CORAM : RAVINDRA V. GHUGE, J.

                                          Dated    : 13th September, 2017

 ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties. The petitioner is aggrieved by the judgment of

the School Tribunal dated 01/12/2016, by which, Miscellaneous

Application No. 04/2016, filed by the petitioner seeking condonation of

delay of about five years, was allowed.

2. I have considered the strenuous submissions of the learned

advocates for the respective sides. The learned AGP appearing on

behalf of respondent No. 4 submits that since it is a matter of

condonation of delay, it would be, for the court to consider it.

3. The learned counsel for the petitioner/employee submits as

under :

(a) An advertisement was published pursuant to which

he had applied for appointment.

(b) By appointment order dated 26/02/2007, he was

appointed as an assistant teacher with effect from

01/03/2007.

(c) He had acquired the qualification of H.S.C. B.ed.

(d) After his appointment, the Education Officer has

granted approval.

(e) In 2010, the management was sanctioned grants in

aid and since then, the petitioner was being harassed.

                   (f)     With   effect   from   01/09/2010,   he   was   not 

                   permitted to sign the muster roll.

                   (g)     The   petitioner   was  a   permanent   employee   of   the 

Management, considering the effect of Section 5 (2) of the

M.E.P.S. Act.

(h) He started suffering from Ankylosis Spondylisis.

(i) On account of Hip Joint Pain and difficulty in

walking, the doctor issued a certificate indicating that the

petitioner needs to under go surgery for Hip Joint

replacement.

(j) Subsequently, he has under gone such a surgery at

Mumbai and necessary certificates are placed on record.

(k) His Hip Joint illness had not occurred just prior to

his surgery, but it was a recurring medical issue and after

suffering the said illness for a few years, it finally resulted

into a Hip Joint replacement Surgery in the year 2013.

(l) After, he recovered from his surgery and after he

regained his health, he approached the management in

the year 2015.

(m) He was made to sign a blank bond paper which has

been misused.

(n) He has approached the School Tribunal on

01/10/2015 by filing an appeal for challenging his

otherwise termination and hence, the delay of five years.

(o) He does not gain any advantage by causing a delay

in his matter.

(p) The petitioner states that if the delay is condoned,

he would not claim financial/monetary benefits for the

period 01/10/2010 till 01/10/2015.

4. Learned advocate for the management has drawn my attention

to the application for condonation of delay filed by the petitioner. It is

pointed out from paragraph Nos. 7 (1) to 7 (7) that the grounds set out

by the petitioner are neither convincing nor sufficient to condone the

delay. There is hardly any explanation put forth by the petitioner. He

has not filed any representation in a period of about five years,

pursuant to his purported oral termination till the date of the filing of

the appeal.

5. He, further, submits that the medical papers placed on record

would indicate that the petitioner was unwell only in the year 2013. No

explanation is forthwith coming for the years 2011 and 2012 and

thereafter, from 2014 till 30/09/2015. He, further, contends that the

petitioner had obtained admission as a regular student in the D.ed.

College at Palunda and passed out in October, 2012. This factors would

indicate that the petitioner has miserably failed in pointing out such

grounds which would be sufficient to condone the delay.

6. Having considered the submissions of the learned advocates, I

have perused the documents placed before the Court. It requires no

debate that a Hip Joint Replacement Surgery is the last option available

to a patient when he is virtually confined to the bed and is unable to

move or walk. Such type of illness do not reach the stage of Hip Joint

Replacement Surgery over a short period of one month or two months.

This type of illness is normally controlled with medication and only

when the said illness becomes unbearable and disable the patient, such

a patient resorts to a last option of a Hip Joint Replacement Surgery.

7. It is undisputed that the petitioner underwent such a surgery in

the year 2013. In this backdrop, it would be improper to presume that

the petitioner is pretending to be ill.

8. It requires no debate that in matters of condoning inordinate

delay, the application for condonation of delay is not to be mechanically

allowed, though a liberal view is to be taken. The Hon'ble Apex Court,

in paragraph No. 3 of its judgment in the matter of Collector, Land

Acquisition, Anantnag Versus Mst. Katiji [AIR 1987 SC 1353] has

observed as under :

"3. The legislature has conferred the power to condone delay by enacting S.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. 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 :-

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 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 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 ado 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."

9. It also does not call for any debate that the petitioner would not

benefit by causing a delay in his own cause when his termination has

resulted in a permanent loss of employment. He would not delay a

challenge to the said termination for ulterior or oblique motives. His

stands to gain no advantage by causing a delay. In fact, a deliberate

delay would jeopardize his chances of questioning his termination.

10. Learned Counsel for the petitioner made a statement on

instructions, that if the delay is condoned, the petitioner would not seek

even a single penny by way of monetary benefits for the period

01/09/2010 till 01/09/2015. I find that the said statement would take

care of the hardships of the management because if eventually the

petitioner succeeds, the management may have to pay

financial/monetary benefits even for the period of delay and that would

result in the petitioner getting an undue advantage of his own wrong.

11. It cannot be ignored that if the delay application is rejected, the

petitioner would be remediless as he would not be able to challenge his

purported unlawful termination before any authority and would have to

digest it without any opportunity of getting justice. By condonation of

such delay, it would only amount to the petitioner posing a challenge to

his termination on its merits which would be decided by the School

Tribunal on its own merits. I do not find that the delay caused can be

said to be a deliberate act on the part of the petitioner or that he has

caused the delay with oblique motives.

12. Considering the above and in order to meet the ends of justice,

this petition is allowed. The impugned order dated 01/12/2016 passed

by the School Tribunal is quashed and set aside and Miscellaneous

application No. 04/2016 is allowed. The delay is condoned on the

condition that if eventually the petitioner succeeds in his appeal, he

shall not be entitled for monetary benefits for the period 01/10/2010

till 30/09/2015 excluding the period of limitation of 30 days from

01/09/2010 to 30/09/2010. Needless to state, I have not expressed

any opinion on merits of the petitioner's claim as against his

termination and the School Tribunal would consider the same on its

own merits.

13. Rule is made partly absolute in the above terms.

( RAVINDRA V. GHUGE, J. ) S.P.C.