Bombay High Court
Shripati Lparaji Trimukhe vs The State Of Maharashtra Through Its ... on 5 February, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:2420-DB
(1) ca 12227.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO. 12227 OF 2023
in REVIEW APPLICATION (St.) NO. 11847 of 2023
in WRIT PETITION NO. 8818 of 2010
Shripati s/o Paraji Trimukhe
Age: 72 years, Occu: Retired
Municipal Employee, R/o S.T. Colony,
Diksal, Kallam, Tq. Kallam,
Dist. Osmanabad. ... APPLICANT
V/s.
1. The State of Maharashtra
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai.
2. The Director of Municipal Administration,
Maharashtra State, Pune.
3. Municipal Council, Kallam,
Tq. Kallam, Dist. Osmanabad.
Through its Chief Officer ... RESPONDENTS
...
Mr. V.P. Golewar, Advocate for the Applicant
Mr. P. K. Lakhotiya, AGP for Respondent-State
...
CORAM : RAVINDRA V. GHUGE &
Y.G. KHOBRAGADE, JJ.
RESERVED ON : 19th January, 2024
PRONOUNCED ON : 5th February, 2024
(2) ca 12227.23
ORDER (Per: Y.G. Khobragade, J.) :
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1. Heard Shri Golewar learned advocate appearing for the Applicant
and Shri Lakhotiya the learned AGP for the State.
2. The learned counsel for the applicant submits in vehemence that,
on 19.07.2012 the Coordinate Bench of this Court passed Judgment and order
and rejected Writ Petition No.8818/2010, holding that Rule 57, Note 1 are not
applicable to the petitioner. However, subsequently on 13.05.1970, the State
Government issued a circular and clarified that the employee who has been
brought on regular establishment from the daily wages establishment, his half
temporary service can be considered for the pensionary benefits. Therefore,
the applicant wanted to file an application for review of order dated 19-07-
2012 passed in W. P. 8818 of 2010, however, he could not file application for
review due to paucity of funds and due to Pandemic Covid-19 the Court
functioning was suspended. Therefore, delay of 10 years 7 months and 18 days
i.e. 3883 days is caused. Hence prayed for condonation of the same.
3. Per contra the learned AGP submits that the Applicant has not
explained delay of more than 10 years satisfactorily. So also the Applicant
himself stated that he approached various Courts. The Petitioner was pursuing
other remedies available in law for the redressal of his grievance. Therefore it
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cannot be said that the Applicant was innocent. Therefore, unexplained long
delay cannot be condoned. Hence prayed for rejection of the application.
4. We have gone through the record. On face of record it appears
that, on 19.07.2012 the Coordinate Bench of this Court (Coram: B.P.
Dharmadhikari & Sunil P. Deshmukh, JJ.) passed the order in Writ Petition
No.8818/2010 (Shripati Paraji Trimukhe V/s. The State of Maharashtra &
Ors.), which reads as under:
"1] The petitioner, a daily wager, was regularized with express
understanding that service as daily water will not be looked into for
calculating any benefit. That clause is not in dispute.
2] Pension has been denied to him on the ground that he has not
completed 10 years of service and, therefore, he does not qualify.
Advocate Munde submits that Rule 57, Note 1, of Maharashtra Civil
Services (Pension) Rules, 1982 is squarely attracted and shortfall can be
made good by including half of the service put in on daily wage. As
petitioner has put in 10 years of Service on daily wage, half of it, the 5
years can be added and thus, petitioner completes necessary qualifying
service.
3] Learned AGP, as also, Advocate Sontakke point out that recourse
to Rule 57, Note 1. is not permissible because of specific condition in the
order of regularization.
4] After hearing respective counsel, we find that there is no challenge
to order of regularization before this court. That order has been issued on
29th October, 2001 and petitioner has taken advantage thereof. It is,
therefore, apparent that provisions of Rule 57. Note 1, are not available in
the present matter. No case is made out for interference. Petition is
rejected."
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5. It is needless to say that, the Applicant / Petitioner was engaged on
daily wages, however, on 13.05.1970, the State Government issued circular
clarifying that the person who is brought on regular basis from the daily wages
establishment should be allowed to count half of his service rendered for
computation of the pensionary benefits.
6. Article 124 of the Limitation Act provides 30 days period for
review of Judgment/Order of the Court from the date of the Order. Sec. 5 of
the Limitation Act provides discretionary powers to the Court to condone the
delay, if it is bonafidely and substantially explained.
7. In the case of Esha Bhattacharjee V/s. Managing Committee of
Raghunathpur Nafar Academy and Ors.; (2013) 12 SCC 649, the Hon'ble
Supreme Court laid down principles while considering the application for
condonation of delay as under:
"21.1. (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.
21.2. (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.
21.3. (iii) Substantial justice being paramount and pivotal the
technical considerations should not be given undue and uncalled
for emphasis.
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21.4. (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.
21.5. (v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
21.6. (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.
21.7. (vii) The concept of liberal approach has to encapsulate the
conception of reasonableness and it cannot be allowed a totally
unfettered free play.
21.8. (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.
21.9. (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.
21.10. (x) If the explanation offered is concocted or the grounds
urged in the application are fanciful, the courts should be vigilant
vigilant not to expose the other side unnecessarily to face such a
litigation.
21.11. (xi) It is to borne in mind that no one gets away with fraud,
misrepresentation or interpolation by taking recourse to the
technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully
scrutinised and the approach should be based on the paradigm of
judicial discretion which is founded on objective reasoning and
not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a
collective cause should be given some acceptable latitude.
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22. To the aforesaid principles we may add some more
guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted
with careful concern and not in a haphazard 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.
22.2. (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.
22.3. (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.
22.4. (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."
8. In the case of Karnataka Rural Infrastructure Development Limited
V/s. T.P. Natraja and Others (Civil Appeal No.5720/2021), the Hon'ble Supreme
Court held that ignorance of law is no excuse. The notion of Legal literacy is
based on the principle that every individual must be aware of their rights and
obligations. The maxim 'ignorantia juris non-excusat' or 'ignorance of the law
is no excuse,' implies that the Court presumes that every party is aware of the
law and hence cannot claim ignorance of the law as a defence to escape
liability.
9. On perusal of the present application it appears that the Applicant
prayed for condonation of delay of 10 years 7 months 18 days i.e. 3883 days
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caused in filing the application to review the order dated 19.07.2012 passed in
Writ Petition No.8818/2010. The Applicant set out grounds that due to paucity
of funds and due to suspension of Court's work during Pandemic Covid-19, he
could not file proceeding before any Court of law. Thereafter he received legal
opinion from his legal adviser and he filed Writ Petition No.13028/2022 before
this Court in the month of December, 2022 which was disposed off as
withdrawn. Thereafter he got knowledge of the circular dated 13.05.1970.
Thereafter he presented Review Petition along with the present application.
However, the applicant has not given exact details on which date he came to
know about circular dated 13.05.1970.
10. Needless to say that, the applicant has not offered sufficient
explanation of 10 years and 7 months and said delay does not appear bona fide
and substantiated. Therefore, considering the reasons set out in the application
as well as ratio laid down in the cited case law, we are not inclined to grant the
present application. Hence, the Application seeking condonation of delay is
rejected. Accordingly, the Review Application is disposed off.
[Y.G. KHOBRAGADE, J.] [RAVINDRA V. GHUGE, J.]
mub
