Ar vs Swarup Kumar Saha & Anr
2023 Latest Caselaw 5652 Cal

38      29.8.2023                   MAT 1044 of 2021
Ct-08                                        with
                                     I.A No. CAN 1 of 2021
                                        CAN 2 of 2021

                                The State of West Bengal & Ors.
ar                                            Vs.
                                  Swarup Kumar Saha & Anr.


                       Mr. Pinaki Dhole
                       Mr. Avishek Prasad
                                        ... For the Appellants

                       Mr. Ekramul Bari
                       Sk. Imtiajuddin
                                   ... For the Respondent no. 1/

Writ Petitioner

Re: CAN 1 of 2021 (Condonation of Delay)

1. There is a delay of 1343 days in presenting

the memorandum of appeal. The application for

condonation of delay is opposed on behalf of the

respondent no. 1/writ petitioner.

2. The appeal is arising out of an order dated

10th June, 2016. In the writ petition the order of

the District Inspector of Schools(S.E), Siliguri, was

challenged. The prayer for higher scale of pay has

been negated by the said authority in terms of

paragraph 3 of Government Order No. 155-SE(B)

dated 13th July, 1999.

3. The appeal was filed on 28th September,

2021 with a prayer for condonation of delay. In the

application for condonation of delay it has been

stated that after the impugned order was passed

the District Inspector of Schools(S.E), Siliguri

placed a proposal before the Commissioner of

School Education, Government of West Bengal on

18th November, 2016 for filing an appeal against

the order dated 10th June, 2016. On receipt of the

proposal the dealing officer of the office of the

Commissioner of School Education prepared the

requisite papers and placed the same through the

Deputy Director of School Education before the

Commissioner of School Education. The

Commissioner of School Education considered and

approved the draft proposal and it was made ready

to be placed before the Secretary, School Education

Department for final approval.

4. On 19th December, 2016 the Commissioner

of School Education, Government of West Bengal

upon receiving such approval requested the office

of the Legal Remembrancer, Government of West

Bengal, to obtain certified copy of the order dated

10.6.2016.

5. On 10.01.2017 the Secretary, School

Education Department had approved the proposal

for appeal and sent the file to the learned Legal

Remembrancer for engaging an advocate for filing

the appeal. Mr. Ansar Ali Mondal, learned

advocate, was appointed on 01.3.2017 for filing the

appeal.

6. On 21st April, 2017 the file was returned to

the Commissioner of School Education through the

School Education Department. On 3rd May, 2017

the formal letter of engagement was issued in

favour of Mr. Ansar Ali Mondal, learned AGP.

7. On 11th May, 2017 all the relevant papers

were handed over to Ms. Srilekha Bhattacharyya,

junior to the learned AGP, who received the same

with a note without certified copy. On 18th May,

2017 a prayer was made before the learned Legal

Remembrancer for handing over the certified copy

to the learned advocate in order to enable here to

prepare the memorandum of appeal.

8. On 16th December, 2019 the original

certified copy was received by the Directorate and

on 19th December, 2019 the appropriate authority

was requested to engage another advocate in place

of Mr. Ansar Ali Mondal. The noting on the file

shows that the said change was suggested as Mr.

Mondal could not file the appeal and he was no

longer in the State panel.

9. The Commissioner of School Education,

Government of West Bengal on 8th January, 2020

forward the file to the School Education

Department for fresh appointment of State

advocate and the Principal Secretary on 9th

January, 2020 sent the file to the learned Legal

Remembrancer, Government of West Bengal.

10. On 14th January, 2020 the Legal

Remembrancer approved the engagement of Mr.

Supriyo Chattopadhyay, learned senior government

advocate. An appointment letter was issued in

favour of Mr. Chattopadhyay on 17th February,

2020. Mr. Supriyo Chattopadhyay on 19th

February, 2020 returned the brief expressing his

view that it was not a fit case to file appeal after

considerable delay, moreover, the point raised has

already been decided by this Hon'ble Court in

several other matters. Thereafter, the State had

decided to prefer an appeal by initiating a fresh

note prepared on 7th July, 2021. However, the

appeal was filed on 28th September 2021 with a

prayer for condonation of delay. In between due to

COVID situation the work was affected.

11. Mr. Avishek Prasad, learned counsel

appearing on behalf of the appellants, submits that

the facts disclosed in the petition has to be read in

a holistic manner and it would show that the

appellants were never negligent in conducting the

matter. Advocates were engaged to prefer an

appeal but they could not file the appeal within the

period of limitation. The decision to prefer an

appeal was taken immediately after the order was

communicated. Mr. Prasad further submits that

the petitioner has meritorious case and in the event

the appeal is dismissed on the ground of limitation

the appellants would suffer irreparable prejudice.

Mr. Prasad has also referred to the decision of the

coordinate bench in MAT 1620 of 2019 (The State

of West Bengal & Ors. Vs. Uttam Manna & Ors.)

decided on 10th February, 2021 and has submitted

that the order of the learned Single Judge is

contrary to the law laid down by the coordinate

bench in the said decision and also in an earlier

decision in MAT 618 of 2021(The State of West

Bengal & Ors. Vs. Mohitosh Das & Anr.) decided

on 16th December, 2021.

12. Mr. Ekramul Bari, learned counsel

representing the respondent no.1/writ petitioner,

has opposed the prayer for condonation of delay. It

is submitted that there has been an inordinate

delay in preferring the appeal. He submits that the

explanations offered by the appellants are flimsy

and cannot be accepted. The pushing of files from

one department to other is a red tapism in the

process and this cannot cause the prejudice to the

appellants. Mr. Bari has referred to the decision

of the Hon'ble Supreme Court in SLP (CIVIL) No.

5301 of 2022 (State of Uttar Pradesh & Ors.

Vs. M/s. Satish Chand Shivhare and Brothers)

decided on 4th April, 2022 and submits that in the

said decision the Hon'ble Supreme Court has

clearly held that the usual explanation of red

tapism due to pushing of files and the rigmarole of

procedures cannot be accepted as sufficient cause.

13. Mr. Bari has relied upon the decision of the

coordinate bench decided in MAT 618 of

2021(supra) submits that in the aforesaid decision

the application for condonation of delay was

allowed, subject to the deposit of costs assessed at

Rs.1,00,000/- with the State Legal Service

Authority due to departed practice of lethargy by

the Government department in preferring the

appeal.

14. The legislature has consciously

incorporated Section 5 under the Limitation Act,

1963, to confer a jurisdiction upon the Court to

condone the delay on sufficient cause being shown

for the delay. The approach of the Court in

deciding the application for condonation of delay

would be justice oriented hedged with a cautious

approach not to condone casual, indolent and

culpable negligence. The Government is not a

favoured litigant. The Government is required to

behave responsibly. It is noticed in State of Uttar

Pradesh & Ors.(supra) in paragraph 17, which

reads:-

"17.The explanation as given in the affidavit in support of the application for condonation of delay filed by the Petitioners in the High Court does not make out sufficient cause for condonation of the inordinate delay of 337 days in filing the appeal under Section 37 of the Arbitration and Conciliation Act. The law of limitation binds everybody including the Government. The usual explanation of red tapism, pushing of files and the rigmarole of procedures cannot be accepted as sufficient cause. The Government Departments are under an obligation to exercise due diligence to ensure that their right to initiate legal proceedings is not extinguished by operation of the law of limitation. A different yardstick for condonation of delay cannot be laid down because the government is involved."

15. However, the Hon'ble Supreme Court has

also approved of a liberal approach in State of

Uttar Pradesh & Ors.(supra) where the Court is

satisfied that there is a prima facie merit in the

appeal. This is reflected in paragraph 22 of the

said judgment, which is produced below:-

"22. When consideration of an appeal on merits is pitted against the rejection of a

meritorious claim on the technical ground of the bar of limitation, the Courts lean towards consideration on merits by adopting a liberal approach towards 'sufficient cause' to condone the delay. The Court considering an application under Section 5 of the Limitation Act may also look into the prima facie merits of an appeal. However, in this case, the Petitioners failed to make out a strong prima facie case for appeal. Furthermore, a liberal approach, may adopted when some plausible cause for delay is shown. Liberal approach does not mean that an appeal should be allowed even if the cause for delay shown is glimsy. The Court should not waive limitation for all practical purposes by condoning inordinate delay caused by a tardy lackadaisical negligent manner of functioning."

16. From the narration of facts given in the

application for condonation of delay, the decision to

prefer an appeal was immediate. However, the

process through which it had culminated in filing

the appeal with the prayer for condonation of delay

appears to be tardy but not deliberate.

Undoubtedly, the long delay is undesirable but at

the same time the Court cannot disregard the fact

that some officers at the relevant time had taken a

conscious decision notwithstanding a view

expressed by Mr. Supriyo Chattopadhyay, learned

State advocate for not preferring an appeal. The

issue raised in the appeal requires consideration.

The Court is, prima facie, satisfied that the

appellant has been able to make out a strong

arguable case on merit. We do not find that there

has been a culpable negligence and deliberate

inaction on the part of the appellants in pursuing

the appeal.

17. On such consideration, we allow the

application for condonation of delay, subject to

payment of costs of Rs.50,000 (Fifty Thousand) to

the State Legal Services Authority within two weeks

from date, in default, the appeal shall stand

dismissed without any further reference to this

Court.

18. The application for condonation of delay

being CAN 1 of 2021 stands disposed of.

19. Liberty to mention upon compliance of the

aforesaid order.

20. Urgent Photostat certified copy of this

order, if applied for, be given to the parties on

usual undertaking.

 (Uday Kumar, J.)                  (Soumen Sen, J.)