Calcutta High Court (Appellete Side)
Ananda Gopal Roy & Anr vs Union Of India & Ors on 30 September, 2022
WPCT 88 of 22 P-1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE PRASENJIT BISWAS
W.P.C.T No. 88 of 2022
Ananda Gopal Roy & Anr.
Vs.
Union of India & Ors.
Appearance:
For the Petitioners : Mr. Dinobandhu Dan, Adv.
For the Respondents : Mr. D. N. Roy, Adv.
Judgment On : 30.09.2022
Prasenjit Biswas, J.
The short question that falls for determination in this appeal is
whether the Tribunal was right in rejecting the prayer of the petitioners for
condonation of delay in preferring the O.A being No. 350/00547/2018.
The appellants' case is that their father namely Prabhat Kumar Roy
acted as an extra Departmental Branch Post Master of Perua Gopalpur in
the year 1969 and while discharging duties he was impleaded as an accused
WPCT 88 of 22 P-2
in a criminal case being Special Court Case No. 5 of 1987 for committing
criminal breach of trust in respect of sum of Rs.250/- He was tried before
the First Special Court, Birbhum, Suri and exonerated from that case in the
year 1991.
On account of accusation of criminal breach of trust the service of
Prabhat Kumar Roy, father of the applicants was terminated. However,
despite the acquittal from the criminal complaint he was not reinstated into
his service. Upon not being allowed to re-join, father of the petitioners made
a representation to the authority and the representation was disposed of
vide order dated 4th February 1992 inter alia stating that the service of
Prabhat Kumar Roy had already been terminated. Thereafter Prabhat
Kumar Roy sent a letter to the Respondent No. 3 through his Advocate for
providing him all service benefits with retrospective effect from the date of
his termination, but there was no response on the part of the Respondent
No. 3.
After the death of Prabhat Kumar Roy these petitioners once again
made representation before the Respondent No. 3 through their Advocate
but this time also there was no response on the part of the concerned
Respondent. Thereafter these petitioners made an application being No.
O.A/350/00547/2018 before the Tribunal.
After hearing of both sides Tribunal passed the following order inter
alia that-
"We are also of the opinion that this is not a fit case for condonation of
delay of 50 years, and, that such delay could not be explained suitably by the
WPCT 88 of 22 P-3
applicant except to refer to paucity of time, resource crunch and an accidental
fire, which had admittedly occurred during the lifetime of the purported ex-
employee. Hence, this O.A as hopelessly barred by limitation under section 21
of the Administrative Tribunal Act, 1985"
It appears from the materials on record that alleged termination of
services of Prabhat Kumar Roy was on 01.08.1969 and the application was
preferred before the Tribunal by the petitioners on 19.04.2018 causing delay
of 50 years. The appellants took plea that alleged termination order dated
01.08.1969 was never received by their father Probhat Kumar Roy and on
account of an accidental fire on 05.10.1996 relevant documents relating to
said Probhat Kumar Roy had been damaged.
Per contra respondents denied the existence of any Probhat Kumar
Roy as their Extra Departmental Branch Post Master of Perua-Gopalpur,
Extra Departmental Branch, Post office. There is nothing on record to show
that the said Probhat Kumar Roy attempted to re-join his services after
exonerated from the criminal case in the year 1991.
We are of the view that for condoning the delay, the Courts/Tribunals
are required to take into account the conduct of the parties, bona fide
reasons and whether such delay could easily be avoided by the applicant
acting with normal care and caution.
In the present case, we have no hesitation to mention that, the delay
could have been avoided by the applicants, had they taken the normal care
and caution at appropriate time. The applicants displayed total negligence in
asserting their rights in the matter and hence contributed in defeating the
WPCT 88 of 22 P-4
same. It is expected that the applicants would pursue their rights and
remedies and claim its enforcement before the appropriate forum well in
time and would not sleep over it. Delay itself deprives a person from his
remedy available in law.
The said Probhat Kumar Roy during his lifetime displayed total
negligence in asserting his rights in the matter and hence contributed in
defeating the same. It is trite principle of law that power of discretion, to
condone the delay, is to be exercised cautiously. In the absence of any valid
reason, unexplained delay cannot be condoned. Power of discretion is
undoubtedly to be exercised judiciously. If a claim is barred under the Act,
unless there are exceptional' circumstances, prima facie it is
a stale claim and should not be entertained by this Court. But even if it is
not barred under the Act, it may not be entertained by this Court if on the
facts of the case there is unreasonable delay.
Moreover, we are of the opinion that the exoneration in the
departmental proceeding ipso facto would not result into the quashing of the
criminal prosecution it is hasten to add, the prosecution against an accused
is solely based on a finding in a proceeding by the competent court and that
finding will not apply in the case of the departmental proceeding as the
criminal trial and the departmental proceeding are held by two different
entities. Further they are not in the same hierarchy.
Therefore, the applicant has miserably failed to furnish sufficient
cause for the inordinate delay of fifty years in filing the application.
WPCT 88 of 22 P-5
In view of the above this Court is of the view that the Tribunal, in the
impugned order, was perfectly justified in rejecting the prayer of the
applicants for condonation of delay. There is absolute no legal infirmity in
the impugned order of the Tribunal.
The petition is accordingly dismissed.
Urgent photostat certified copies of this judgment, if applied for, be
made available to the parties subject to compliance with requisite
formalities.
I agree.
(Harish Tandon, J.)
(Prasenjit Biswas, J.)
