Bombay High Court

Prakash Jagannath Pingle vs Chalisgaon Education Society ... on 24 November, 2021

Bench: Mangesh S. Patil

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          WRIT PETITION NO.12881 OF 2019

Prakash s/o Jagannath Pingle,
Age : 57 years, Occu. Nil,
R/o Radhey, Tilak Chowk,
Chalisgaon, District Jalgaon                                PETITIONER

       VERSUS

1.     Chalisgaon Education Society,
       Office A.B. High School Compound,
       Chalisgaon, District Jalgaon,
       through its Chairman

2.     Chalisgaon Education Society,
       Office A.B. High School Compound,
       Chalisgaon, District Jalgaon,
       through its Secretary

3.     A.B. High School,
       Tq. Chalisgaon, District Jalgaon,
       through its Head Master

4.     The Education Officer (Secondary),
       Zilla Parishad, Jalgaon

5.     The State of Maharashtra,
       Education and Sports Department,
       Mantralaya, Mumbai-32                                RESPONDENTS

                                     .....
Mr. L.V. Sangeet, Advocate holding for Smt. M.L. Sangeet,
Advocate for the petitioner
Mr. P.S. Shendurnikar, Advocate for respondent Nos.1 to 3
Mr. K.B. Jadhavar, A.G.P. for respondent Nos.4 and 5
                                     .....

                                    CORAM :   MANGESH S. PATIL, J.

                DATE OF JUDGMENT RESERVED  :                17.11.2021
                DATE OF JUDGMENT PRONOUNCED :               24.11.2021




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JUDGMENT :

Heard.

2. Rule. The Rule is made returnable forthwith. Learned

Advocate Mr. P.S. Shendurnikar waives for respondent Nos.1 to 3 and

learned A.G.P. Mr. K.B. Jadhavar waives service for respondent Nos.4 and

5. At the request of the parties, the matter is heard finally at the stage of

admission.

3. The petitioner is taking exception to the order passed by the

School Tribunal thereby rejecting his application for condonation of delay

in preferring an appeal under Section 9(3) of the Maharashtra Employees

of Private Schools (Conditions of Service) Regulation Act, 1977 (`MEPS

Act', for short), challenging the order of his termination passed by

respondent No.1 Education Society dated 04.08.2016.

4. Mr. L.V. Sangeet, learned Advocate for the petitioner, on the

line of his stand in the application for condonation of delay, submits that

the Management issued a notice to him on 17.08.2015, calling upon him

to show cause as to why a disciplinary proceeding be not initiated against

him. He chose to challenge such action by filing Regular Civil Suit No.104

of 2016 in the civil court. In the meantime, the Management proceeded to

conduct the disciplinary enquiry and simultaneously raised an objection in

the suit regarding its maintainability on the ground of jurisdiction. By the

3 WP12881-2019.odt order dated 04.08.2016, pursuant to the disciplinary enquiry, the

Management terminated his service. Simultaneously, the civil court

rejected the plaint under Order VII Rule 11 of the Code of Civil Procedure

by the order dated 02.08.2017. The petitioner was bona fide pursuing a

remedy in the form of the civil suit and therefore, did not challenge the

order of termination promptly and waited for the civil court to decide the

issue regarding maintainability of the suit. This had resulted in his failing

to prefer the appeal under Section 9 of the MEPS Act within the statutory

period of 30 days. Soon after the plaint was rejected, he chose to prefer

the appeal on 31.08.2017. Though the limitation started running from the

date order of termination was passed i.e. 04.08.2016 and there was a

delay of almost a year, there were no mala fides on his part and the delay

ought to have been condoned considering the provisions of Section 14 of

the Limitation Act, 1963. The learned Advocate would submit that there

were no circumstances to indicate any mala fides on his part. He was not

to gain anything by not preferring the appeal. He is an employee, who has

been illegally terminated and the justice could have been met by granting

him an opportunity to file the appeal. No prejudice was likely to be caused

to the Management if the appeal was allowed to be decided on its merits.

5. Per contra, Mr. P.S. Shendurnikar, learned Advocate for the

contesting respondents, referring to the affidavit-in-reply, would submit

that there is no question of invoking the provision of Section 14 of the

Limitation Act. All the while, the petitioner was alive to the fact that the

4 WP12881-2019.odt disciplinary enquiry was going on and even had the knowledge of his

termination. Still, he had chosen not to file the appeal in time and

pursued a wrong remedy even while objection to the jurisdiction of the

civil court was alive. He would submit that in order to invoke the

provision of Section 14 of the Limitation Act, it is necessary that the

remedy that is resorted to incorrectly and the remedy that is available to a

party should be the same. Before the civil court the petitioner was

challenging the vires of the show cause notice whereas he is expected to

pursue a remedy of an appeal under Section 9 of the MEPS Act for

challenging his termination. The two remedies were not identical and

therefore, he is not entitled to invoke the provision of Section 14 of the

Limitation Act.

6. On facts, Mr. Shendurnikar would submit that during his

cross-examination in the suit, the petitioner specifically admitted that he

had participated in the disciplinary enquiry and was even having the

knowledge about having been terminated pursuant thereto. Not only that

but even he specifically admitted the knowledge about the remedy to be

had by preferring an appeal before the School Tribunal. He would submit

that inspite of such state-of-affairs, the petitioner chose not to prefer the

appeal promptly and therefore, his conduct does not demonstrate that he

was prosecuting the remedy before the civil court bona fide. Learned

Advocate would place reliance on the following decisions:

                                            5                 WP12881-2019.odt
(i)                Anmol V. Nagsen Shikshan Sanstha and Others;
                   2020 SCC OnLine Bom 169

(ii)               Kalpana d/o Deorao Lenze V. Gurudeo Krushanashram
                   Dharmik Trust, Navegaon Bandh and others;
                   (2007)3 Mah LJ 486

(iii)              Commissioner, M.P. Housing Board and Ors. V.
                   M/s Mohanlal and Company;
                   AIR 2016 SC 3592

(iv)               Madhavrao Narayanrao Patwardhan V.
                   Ram Krishna Govind Bhanu and others;
                   AIR 1958 SC 767

7. I have carefully gone through the papers and considered the

rival submissions as also the decisions cited at the bar and also the catena

of judgments of the Supreme Court touching the aspect of condonation of

delay.

8. As can be appreciated, so far as the events are concerned,

there is absolutely no dispute. The only question that needs to be

addressed is as to whether in the peculiar facts and circumstances, the

delay could have been condoned. True it is that except resorting to the

provision of Section 14 of the Limitation Act, the petitioner is not putting

forth any other ground or showing any other cause for not preferring the

appeal in time. It is equally a matter of record that the petitioner was

always alive to the fact that he was facing the disciplinary enquiry, which

had resulted in passing the order of his termination and not only this, but

was alive to the remedy of appeal to the School Tribunal that was available

to him. It can, therefore, certainly be said that he had chosen not to prefer

6 WP12881-2019.odt the appeal which was his voluntary act.

9. Section 14 of the Limitation Act reads as under:

14. Exclusion of time of proceeding bona fide in Court without jurisdiction. -

(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of rist instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

                 (2)      .....

                 (3)      .....

10. In the matter of Commissioner, M.P. Housing Board and Ors.

(supra), the observations of the Supreme Court in the case of Consolidated

Engineering Enterprises V. Principal Secretary, Irrigation Department and

others; (2006)6 SCC 239 were referred with approval in following words:

"16. In Consolidated Engineering Enterprises (supra), the Court, while dealing with the conditions in which Section 14 will be applicable, enumerated five conditions which are as follows:

"(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;

(2) The prior proceeding had been prosecuted with due diligence and in good faith;

(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;

                 (4)      The earlier proceeding and the latter proceeding must



                                              7                  WP12881-2019.odt
                 relate to the same matter in issue and;

                 (5)      Both the proceedings are in a court."

                 In the said case, it has also been stated that:

"... While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity...."

17. From the aforesaid passage, it is clear as noon day that there has to be a liberal interpretation to advance the cause of justice. However, it has also been laid down that it would be applicable in cases of mistaken remedy or selection of a wrong forum. As per the conditions enumerated, the earlier proceeding and the latter proceeding must relate to the same matter in issue. It is worthy to mention here that words "matter in issue" are used under Section 11 of the Code of Civil Procedure, 1908. As has been held in Ramadhar Shrivas v. Bhagwandas the said expression connotes the matter which is directly and substantially in issue. We have only referred to the said authority to highlight that despite liberal interpretation placed under Section 14 of the Act, the matter in issue in the earlier proceeding and the latter proceeding has to be conferred requisite importance. That apart, the prosecution of the prior proceeding should also show due diligence and good faith."

11. Alive to the proposition, learned Advocate Mr. Shendurnikar

strenuously submitted that the two remedies that were invoked by the

petitioner of filing a suit and then trying to prefer an appeal were not

pertaining to the same matter in issue. In my considered view, the

submission of Mr. Shendurnikar is not legally tenable. The remedy that

8 WP12881-2019.odt was sought to be availed of by the petitioner in the suit may be different

than the remedy of preferring an appeal under Section 9 of the MEPS Act.

The requirement of law that the matter in issue has to be the same does

not mean that even the remedies in both the proceedings should be the

same. Commensurate with the then happenings, the petitioner had

challenged the show cause notice by filing the suit. Apparently he was

waiting for some decision in the suit in his favour. It is subsequently that

the order of termination was passed during pendency of the suit and it is

thereafter that the plaint was rejected. Therefore, even though he was

aware that he could have challenged the order of termination by preferring

an appeal to the School Tribunal, the matter in issue in both the

proceedings cannot be said to be different. The right of the Management

to initiate the disciplinary enquiry was directly and substantially in issue in

the suit and the possible appeal.

12. The decision in the case of Commissioner, M.P. Housing Board

and Ors. (supra) was rendered in the peculiar facts and circumstances of

the case. In that matter, the dispute was referred to the sole arbitrator.

Both the parties had appeared before him and on the basis of the material

on the record, the arbitrator had passed an award. The respondent

contractor was not found entitled to any claim. With his back to the wall,

he filed an application under Section 11 of the Arbitration and Conciliation

Act, 1996 before the High Court, seeking appointment of an arbitrator to

adjudicate the disputes, inter alia contending that clause 29 of the contract

9 WP12881-2019.odt could not be treated as an arbitration clause. It is on this background that

the Supreme Court had concluded that the remedy under Section 14 of the

Limitation Act was not available. The respondent Management in the

instant case, therefore, is not entitled to derive any benefit from this

decision of the Supreme Court.

13. Again, the decisions of the coordinate benches of this Court in

the matters of Kalpana and Anmol (supra), the former of which has

already been referred to and relied upon by the School Tribunal in the

impugned order, were clearly rendered in the peculiar facts and

circumstances of the respective matters and do not lay down any ratio.

14. It is trite that the approach of the courts in considering the

request for condonation of delay should be pragmatic. It shuts all the

avenues that are open to a party and unless there is some clinching

material to demonstrate some mala fides on its part, the courts should be

liberal in condoning the delay. The principle underlining such an approach

has also been reiterated from time to time. A person is not to gain

anything by allowing his remedy to be lost by not preferring a proceeding

within the period of limitation. The following are the observations,

referring to the earlier decisions, from G. Ramegowda, Major etc.. V. The

Special Land Acquisition Officer, Bangalore; AIR 1988 SC 898:

"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. There is, it is

10 WP12881-2019.odt 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 fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to 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. In Katiji's case (supra), this Court said:

"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."

"It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

15. Bearing in mind these propositions, when there is no material

to show that there was gross negligence or deliberate inaction or lack of

bona fides imputable to the petitioner, when it is a matter between a

mighty Management and a poor employee facing termination, the

propriety demands that the discretion should be exercised in favour of the

weaker of the two.

16. For that matter, as the observations of the learned brother

judge in the case of Anmol (supra) would indicate that in a similar set of

facts and circumstances, even the learned brother judge was inclined to

allow the writ petition and condone the delay in preferring an appeal of

11 WP12881-2019.odt the petitioner therein with a rider that he would forego all the monetary

benefits for the period of delay, which offer was not acceptable to the

petitioner therein and the writ petition was dismissed.

17. In the facts and circumstances discussed hereinabove, I am

also inclined to adopt the same course, however, without giving any option

to the petitioner.

18. The Writ Petition is allowed. The impugned order is quashed

and set aside. The delay stands condoned, however, subject to the