Union Of India & Ors vs Virendra Singh
2021 Latest Caselaw 242 Cal

19.01.2021
     14
 RP Ct.04
                                     MAT 603 of 2020
                                          With
                                  IA No. CAN 1 of 2020
                                          with
                                  IA No. CAN 2 of 2020
                                         With
                                  IA No. CAN 3 of 2020
                                   Union of India & Ors.
                                         Versus
                                     Virendra Singh


             Mr. Debapriya Gupta
             Mr. Arijit Majumdar
                                              ....    For Appellant
             Mr. Soumya Majumder
             Mr. Manoj Malhotra
             Mr. Ravi Kumar Dubey
                                              ....     For Respondent

In Re : CAN 1 of 2020

The appeal is delayed by 332 days. Mr. Gupta, learned advocate appears on behalf of applicants and submits, the delay be condoned on explanation for it given in the application. He submits, his clients have good grounds of appeal since by impugned judgment, difference back wages for period of suspension has been directed where the employee retired before the authority could initiate disciplinary proceeding, as barred by the rules.

Mr. Majumder, learned advocate appears on behalf of respondent/writ petitioner and opposes the application. He relies on State of Madhya Pradesh vs. Bherulal reported in (2020) 10 SCC 654, delivered on reliance of said Court's earlier judgement in Office of the Chief Post Master General vs. Living Media India Ltd. reported in (2012) 3 SCC 563.

Applicants seek condonation of delay, to prefer appeal in exercise of their statutory right. Bherulal (supra) is a judgment

of Supreme Court dismissing Special Leave Petition as time barred. Article 136 in the Constitution of India is for special leave to appeal before the Supreme Court. Said Court sometimes grants leave. The article does not prescribe a time, within which a petition for leave is to be made. The provision to obtain leave cannot be equated or taken to be in the same position as a statutory right having prescribed time, within which to avail it.

Living Media India Ltd. (supra) was similar case, where the Postal Department sought leave to prefer appeal to the Supreme Court on delay of 427 days. Said Court, in the judgment, considered its earlier decisions, inter alia, in Collector, Land Acquisition, Anantnag v. Mst. Katiji reported in (1987) 2 SCC 107, as relied on behalf of the Post Master General. In paragraph 8 of Living Media India Ltd. (supra) Supreme Court said as follows:

"8.Though the learned ASG heavily relied on the abovesaid decisions and the principles laid down, on going through all the factual details, we are of the view that there is no quarrel about the propositions inferred therein. However, considering the peculiar facts and circumstances of each case, this Court either condoned the delay or upheld the order of the High Court condoning the delay in filing appeal by the State. While keeping those principles in mind, let us consider the reasonings placed by the Postal Department with regard to the same."

In Collector, Land Acquisition, Anantnag (supra) Supreme Court said as follows:

"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."

We have perused the application. We are not inclined to say anything about contents of it but allow the same by reason of prima facie appreciation of a question raised or a controversy to be adjudicated in the appeal.

List the appeal along with CAN 2 of 2020, CAN 3 of 2020 nd on 2 February, 2021.

(Arindam Sinha, J.)

(Suvra Ghosh, J)