The Management Of S.E.S. Baba ... vs Smt. Raj Kumari Khanchandani & ...
2011 Latest Caselaw 2578 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

     +             WP(C) No. 1605 of 1996
     %             Judgment reserved on :1st April, 2011
                   Judgment delivered on: 13th May, 2011


     THE MANAGEMENT OF S.E.S. BABA         ..... Petitioners
     NEBHRAJ SR. SECONDARY SCHOOL & ANR.
                       Through:Mr. Ashok Gurnani , Advocate
                  Versus

     SMT. RAJ KUMARI KHANCHANDANI     ..... Respondents
     & ANR.
                      Through:Mr. Umesh Suri, Advocate

     CORAM:
     HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment? NO
     2. To be referred to Reporter or not? YES
     3. Whether the judgment should be reported in the
        Digest?     YES
     SURESH KAIT, J.

1. The instant writ petition has been filed under Article 226 of the Constitution of India challenging the order dated 30.11.1995 passed by the Delhi School Tribunal, Delhi (hereinafter called the „Tribunal‟) wherein the Tribunal has held that the provisions of Section 5 of the Indian Limitation Act, 1963 are applicable to the proceedings before the

Tribunal which is constituted under the Delhi School Education Act, 1973(hereinafter called the „Act‟).

2. The order passed by the Tribunal has given rise to the questions of law whether the Tribunal, which is not a Court, but has the trappings of the power of a Court, can condone delay in filing an appeal before it.

3. The facts, in brief, of the instant writ petition, though not very much relevant to the issue, but very necessary to mention, are that the respondent No. 1 Smt. Raj Kumari Khanchandani had joined as an Assistant Teacher with the petitioner School on 30.10.1987.

4. Vide communication dated 05.02.1988, the Deputy Education Officer, Delhi Administration, Delhi informed the Secretary of the petitioner No. 1 that as per the existing Recruitment Rules, the respondent No. 1 was not qualified for the post of Assistant Teacher. On 18.02.1988, the respondent No. 1 expressed her desire to continue to work with the petitioner No. 1 without any salary and allowances in case the requisite approval was not granted by the Directorate of Education, Delhi for her appointment. Accordingly, the respondent No. 1 was permitted to work without any interruption. Further, vide order dated 01.02.1989 the Directorate of Education, Delhi

Administration, Delhi granted approval in respect to appointment of the respondent No. 1.

5. Vide communication dated 27.10.1989 the services of the respondent No. 1 were terminated during the period of probation as her work was not found satisfactory. Aggrieved by the aforesaid communication, the respondent No. 1 filed an appeal under Section 8 sub-section 3 of the Delhi School Education Act, 1973 along with an application seeking condonation of delay.

6. The Tribunal allowed the application of condonation of delay filed by the respondent No. 1 vide order dated 30.11.1995 on the ground that principle of natural justice and inherent powers under Section 151 of the CPC, the Tribunal being a quasi-judicial body, are also attracted.

7. In the instant case, the sufficiency of cause is not in serious contest. According to the appellant she had been under constant treatment in Dr. RML Hospital, New Delhi as she had suffered heavy mental disorder and tension. Therefore, there was a delay of 10 days which had been sufficiently explained by way of affidavit. Accordingly, the Tribunal allowed the application under Section 5 of the Limitation Act by condoning the delay in filing the appeal beyond the prescribed period of three months.

8. The learned counsel for the petitioner submits that the base of the Tribunal in allowing the application for condonation of delay was that whenever the period of limitation is prescribed under statute for institution of proceedings irrespective of the fact as to whether the provisions of Limitation Act, 1963 have been made applicable or not, the same get attracted for determination of rights of the parties. Further, the Tribunal, being a quasi- judicial body has inherent power in form of Section 151 of the CPC, 1908, is at liberty to condone delay if a sufficient cause has been shown.

9. To demolish the above mentioned preposition, he argued that the provisions of Section 5 of the Limitation Act, 1963 are applicable only to such proceedings which are instituted before a body which is being termed as a Court. In this regard, Section 5 of the Limitation Act is being re- produced below:-

"5. ..Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation- The fact that the appellant or the applicant was mislead by any order practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."

10. He submits that a bare perusal of the aforementioned Section 5 shows that provisions are applicable only to a body which can be termed as Court. Such provisions are not applicable either to quasi-judicial bodies or which is administrative in nature or the creation of statute like the Tribunal having been created in the present case by the Delhi School Education Act, 1973. In this support, he has relied upon a case of Sushila Devi v. Ramanandan Prasad & Ors.; 1976 Vol.2 SCR 854, wherein the Court observed as under:-

".....the third ground on which the decision of the High Court rests relates to the applicability of Section 5 of Limitation Act, 1963. We do not see how Section 5 could be invoked in connection with the application made on October 15, 1965 by the First Respondent. Under Section 5 of the Limitation Act an appeal or application "may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within

such period. The Collector to whom the application was made was not a court, though section 15 of the Act vested him with certain specified powers under the Code of Civil Procedure also, the kind of application that was made had no time limit prescribed for it, and no question of extending the time could therefore arise. We therefore think that the High Court misdirected itself in referring to section 5 of the Limitation Act...."

11. In another case of Kosi Area (Restoration of Land to Raiyats) Act, 1951 and the provisions of Section 5 of the Limitation Act, 1963 were sought to be invoked for condonation of delay. The Supreme Court was pleased to observe that Section 5 of the Limitation Act is applicable only to an Authority which does fall within the definition of the term „court‟.

12. In the case of Kerala State Electricity Board, Trivandrum v. T.P.K.K. Amson and Besom, Kerala, 1977 SCR Vol.1 - 996. In this case, the applicability of limitation Act, 1963 was considered by Supreme Court to the proceedings under the Indian Telegraph Act, 1885. The Supreme Court observed as under:-

"The alteration of the division as well as the change in the collection of words in Article 137 of the Limitation Act, 1963 compared with Article 181 of the 1908 Limitation Act shows that

applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other applications in specified cases and other application as in the 1963 Limitation Act. The words "any other applications" under Article 137 cannot be said on the principle of ejusdem generis to the applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when Court is closed and extension of prescribed period if applicant or the appellant satisfies the court and he had sufficient cause for not preferring the appeal or making the application during such period."

13. In the aforesaid cases, the particular statute, i.e., Section 16 sub-section 3 of the Indian Telegraph Act, 1885 provides for moving an application within whose jurisdiction the property was situated and as a result thereof the Supreme Court observed that under the Telegraph Act determination of disputes is by the Ld. District Judge who acts as an ordinary Court and where by Statute matters are

referred for determination by a Court of record with no further proceeding the necessary implication is that the Court will function as a Court.

14. He further submits, the conclusion is that Article 137 of the Limitation Act, 1963 will apply to any petition or application filed under any Act to Civil Court, in contrast thereto, Section 8 sub-section 3 of the Delhi School Education Act, 1973 reads as under:-

"(3)....Any employee of a recognised private school who is dismissed, removed or reduced in rank may, within three months from the date of communication to him of the order of such dismissal, removal or reduction in rank appeal against such order to the Tribunal constituted under Section 11."

15. A bare perusal of Section 7 of the Act is clearly indicative of the fact that for redress of grievance the Tribunal is constituted for adjudication of disputes. The Tribunal which has been vested with the power to adjudicate the disputes under Section 11 of the Delhi School Education Act, 1973, which reads as under:-

"11...Tribunal. - (1) The Administrator shall, by notification, constitute a Tribunal, to be known as the "Delhi School Tribunal", consisting of one person:

Provided that no person shall be so appointed unless he has held office as a District Judge or any equivalent judicial office.

(2) If any vacancy, other than a temporary absence, occurs in the office of the presiding officer of the Tribunal, the Administrator shall appoint another person, in accordance with the provisions of this Section, to fill the vacancy and the proceedings may be continued before the Tribunal from the stage at which the vacancy is filled.

(3) The administrator shall make available to the Tribunal such staff as may be necessary in the discharge of its functions under this Act.

(4) All expenses incurred in connection with the Tribunal shall be defrayed out of the Consolidated Fund of India.

(5) The Tribunal shall have power to regulate its own procedure in all matters arising out of the discharge of its functions including the place or places at which it shall hold its sitting.

(6) The Tribunal shall for the purpose of disposal of an appeal preferred under this Act have the same powers as are vested in a court of appeal by the Code of Civil Procedure, 1908 and shall also have the power to stay the operation of

the order appealed against on such terms as it may think fit."

16. The learned counsel for the petitioner submits that a bare perusal of Section 11 of the Act clearly indicates the fact that the Tribunal consists of one person to be constituted by the Administrator by issuance of notification though the qualification of a person appointed to be the Presiding Officer is that he has held the office as a District Judge or any equivalent judicial office.

17. Further, he submits that Section 2(a) of the Act defines the work „Administrator‟ as the Administrator of the UT of Delhi, appointed by the President under Article 239 of the Constitution of India which is to the effect that save as otherwise provided by Parliament by law, every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.

18. He has argued that a bare perusal of Article 239 of the Constitution of India and that of Section 11 of Delhi School Education Act, 1973 is clearly indicative of the fact that constitution of the Tribunal by the Administrator who is an executive body. First of all, the Administrator is appointed by the President, and the Administrator. by notification constitute a Tribunal.

19. Article 53 of the Constitution of India is indicative of the fact that the executive powers of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinates to him in accordance with the Constitution. The President is the executive head of the State. As a result thereof, the appointment of the Administrator in a Union Territory or the Governor in a State discharge the executive powers of the State and not to discharge of any of the judicial powers vested in the President. Any tribunal which is constituted on the basis of such enactment cannot be termed as a civil court. More particularly, in view of the fact that the creation of the Delhi School Tribunal is purely an executive function.

20. He further argued that in contrast Article 233 of the Constitution of India forming the part of Chapter VI of the Constitution of India under the heading Subordinate Courts, the appointment, posting and promotion of District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. As a result thereof, it is quite clear that there is a vital difference between the mode of constitution of the Tribunal and the Presiding Officer thereto and a District Judge.

21. While Section 11 of the Act provides the power of appointment of Presiding Officer of the Tribunal purely an executive, in contrast thereto, Article 233 of the Constitution of India provides a mandatory requirement that a person be appointed as a District Judge in consultation with the High Court exercising jurisdiction in relation to such State.

22. As was observed in the case of Sushila Devi v. Ramanandan Prasad & Ors.(supra) that the provisions of the Limitation Act, 1963 apply only to proceedings in „Courts‟ and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or Executive Authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Code of Civil Procedure. The Collector before whom the appeal was preferred under Section 90 of the Act, not being a Court, the Limitation Act had no applicability to the proceedings before him. Hence it becomes necessary to examine whether the Collector has power to invoke the provisions of Section 5 of the Limitation Act for condonation of delay in filing the appeal. The only provision relief on by the appellant in this connection is Section 93 of the Limitation Act, which as it stood at the relevant time, was in the following terms:-

"93. Limitation - Every appeal and every application for revision under this Act shall be filed within sixty days from the date of the order against which the appeal or application is filed and the provisions of the Indian Limitation Act, 1908 shall apply for the purpose of the computation of the said period."

23. On a plain reading of section 93 of the Limitation Act, it is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to „computation of the period of limitation‟. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part III of the Limitation Act, 1963. Section 5 is not a provision dealing with „computation of the period of limitation‟. It is only after the process of computation is completed and it is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise.

24. The learned counsel for the petitioner has relied on the judgment of the Supreme Court in the case of Upper Doav Sugar Mills Ltd. Shamli(UP) v. Shahdara(Delhi) Saharanpur Light Railway Company Ltd. Calcutta, AIR 1963 SC 217, as was observed in para 18 that the question

of equity does not however arise. The Tribunal can have no more jurisdiction that what it is given by the Act which brings it into existence; and if on proper construction of the words of the Statute we find that the tribunal was not given any such jurisdiction we cannot clothe it with that jurisdiction on any consideration of convenience or equity or justice.

25. Lastly, the learned counsel for the petitioner argued that the Delhi School Education Act, 1973 does not contain any provision whatsoever making any of the provisions of the Indian Limitation Act, 1963 for condonation of delay. A bare perusal of various Central legislative enactments show that wherever a special Tribunal or a body is created by an enactment and a period of limitation is prescribed with respect to institution of proceedings, a special provision is made either for condonation of delay or for making one or other provision of the Indian Limitation Act, 1963 applicable to it. The Tribunal cannot enjoy any power whatsoever to condone the delay in filing an appeal before it under Delhi School Education Act, 1973 in the absence of any such provision contained therein.

26. On the other hand the learned counsel for the respondent submits that Section 11 of the Delhi School

Education Act, 1973 provides that the Administrator shall, by notification, constitute a Tribunal, to be known as the „Delhi School Tribunal‟, consisting of one person. Provided, that no person shall be so appointed unless he has held office as a District Judge or any equivalent judicial offices. He further submits that the impugned order passed by the Tribunal which is presided over by a District Judge. He submits that the Tribunal has rightly condoned the delay, as the Tribunal is vested with the power to condone the same and that the provision of Section 5 of the Limitation Act is applicable to the proceedings before the Tribunal. Wherever, there is a provision of Limitation for taking any action the provisions of Limitation Act get invoked under the principles of natural justice and inherent powers under section 151 of CPC. It apply to the Tribunal which is of a quasi-judicial in nature.

27. The cases relied upon by the learned counsel for the petitioners are not relevant in the facts and circumstances of the instant case. He has relied upon a judgment of the Supreme Court Kerala State Electricity Board, Trivandrum v. T.P.K.K. Amson and Besom, Kerala(supra), the applicability of the Limitation Act, 1963 was considered by the Supreme Court to the proceedings under Indian Telegraph Act, 1885 and has observed that in

the Limitation Act, 1908 there was no division between applications in specified cases and other applications as is in the Limitation Act, 1963. Any other application under Article 137 of the Schedule of the Limitation Act, 1963 would be petition or any application under any Act. But it has to be an application to the Court for the reason that Section 4 and 5 of the Limitation Act speak of expiry of the prescribed period when the court is closed and extension of prescribed period if applicant or the appellant satisfies the Court and he had sufficient cause for preferring appeal or making application during such period.

28. In the case Kerala State Electricity Board(supra), the particular statute, i.e., Telegraph Act, 1885 was in issue. Section 16 sub-section 3 of the Telegraph Act provides for moving an application to the learned District Judge, within whose jurisdiction the property was situated. As a result thereof the Supreme Court has observed that under the Telegraph Act, determination of disputes was before District Judge, who acts as an ordinary court and whereby statutory matters were referred for determination by court of record with any further proceeding, the necessary implication was that the court will function as a „court‟.

29. The learned counsel for the respondent has relied upon a judgment of this Court delivered on 12.11.2008 in CM(M) 515/2001 in the case of Geeta Bal Bharti Sr. Sec. School v. Arun Kumar Aggarwal & Anr., wherein it was observed that Delhi School Tribunal is constituted under Section 117 of the Delhi School Education Act, 1973. Sub-section 6 thereof reads as under:-

"The Tribunal shall for the purpose of disposal of an appeal preferred under this Act have the same powers as are vested in a court of appeal by the Code of Civil Procedure, 1908. [5 of 1908] and shall also have the power to stay the operation of the order appealed against on such terms as it may think fit."

30. He submits that sub-Section 6 empowering the tribunal to dispose of appeals as if it were a court of appeal under Code of Civil Procedure, 1908. Consequently, if an appellate court so empowered under Code of Civil Procedure would ordinarily have the power to condone delay by recourse to Section 5 of the Limitation Act, the Education Tribunal would have the same powers.

31. In my opinion Article 137 of the Schedule of Limitation Act, 1963 will apply to any petition or application filed under any Act, even before the quasi-judicial authority,

like Delhi School Tribunal. While exercising its powers under section 8 sub-section 3 of the Act, which reads as under:-

"(3)....Any employee of a recognised private school who is dismissed, removed or reduced in rank may, within three months from the date of communication to him of the order of such dismissal, removal or reduction in rank appeal against such order to the Tribunal constituted under Section

11."

32. On perusal of this section it is clear that one has to approach the Tribunal normally within three months from the date of communication of the order of dismissal, removal or reduction in rank. I am clear to the fact that in Delhi School Education Act, there is no clear provision for condoning the delay, however this section does not have negative cap, ie., the Tribunal has no power to extend the limitation beyond three months even if it is justified by proper grounds.

33. There are two situations; (i) where no provision of condonation and (ii) where negative cap is there. If, like the proviso to sub-rule (2) of Rule 7 of the Employees Provident Fund Appellate Tribunal (Procedure) Rules, 1997, which stipulates that any person aggrieved by an order passed by any authority under the Act may, within 60 days from the date of said order, prefer an appeal to the Provident Fund

Tribunal, and that the tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal with the prescribed period, extend the said period by a further period of 60 days.

34. It is crystal clear that the Employees Provident Fund Appellate Tribunal (Procedure) Rules, 1997 provide the maximum period 60 days + another 60 days. After the prescribed period i.e. 120 days, obviously the Tribunal has no power to extend the period further even a day, as was decided by this court in the case of Prudential Spinners Ltd. vs. The Employees P.F. Appellate Tribunal in W.P.(C) Nos. 670, 671 & 672/2007, decided on 09.02.2007.

35. Similarly, Sub-section (1) of Section 19 of FEMA or under the first proviso to Sub-section (2) of the Section 52 FERA the same issue has already been discussed and decided in the case of Thirumalai Chemicals Limited vs. Union of India & Ors., 2011 STPL (Web) 433 SC which reads as under:-

"11. We are in this case called upon to decide the question whether the Tribunal was right in dismissing the appeals preferred under Section 19(1) of FEMA, by applying the first proviso to sub section (2)of Section 52 of FERA holding that it had no power to condone the delay beyond 90 days from the date on which the order was served on the person committing the contravention.

An appeal was provided under FERA against the order of adjudication before the Foreign Exchange Regulation Appellate Board (in short the `Board') under Section 52 of that Act within a period of 45 days from the date on which the order was served on the person committing the contravention. The Board was also empowered to entertain any appeal after the expiry of the said period of 45 days but not after 90 days from the date on which the order was served on the person if it was satisfied that the person was prevented by sufficient cause in not filing the appeal in time. It is useful to extract that provision for easy reference :-

52. Appeal to Appellate Board ---

(1) ....................

(2) Any person aggrieved by such order may, [on payment of such fee as may be prescribed and] after depositing the sum imposed by way of penalty under Section 50 and within 45 days from the date on which the order is served on the person committing the contravention, prefer an appeal to the Appellate Board: Provided that the Appellate Board may entertain any appeal after the expiry of the said period of 45 days, but not after 90 days, from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time: Provided further that where the Appellate Board is of opinion that the deposit to be made will cause undue hardship to the appellant, it may, in its own discretion, dispense with such a deposit either unconditionally or subject to such conditions as it may deem fit. ....... ........ ........."

13. FERA was repealed by FEMA which came into force with effect from 01.06.2000. Chapter IV of FEMA deals with contravention of penalties. Section 13 of FEMA empowers the authorized

officers to impose penalties for contravention of certain provisions of the Act.

Therefore, the findings rendered by the Tribunal as well as the High Court that the Tribunal does not have jurisdiction to condone the delay beyond the date prescribed under FERA is not a correct understanding of the law on the subject.

29. We, therefore, hold that the Appellate Tribunal can entertain the appeal after the prescribed period of 45 days if it is satisfied, that there was sufficient cause for not filing the appeal within the said period. We are therefore inclined to set aside the orders passed by the Tribunal and the High Court and remit the matter back to the Tribunal for fresh consideration in accordance with law on the basis of the findings recorded by us. We order accordingly."

Though, in the case of Thirumalai Chemicals (supra) the main issue was discussed by the Supreme Court on retrospectively, and procedural rights and substantive right. But the ratio of this judgment applies to the issue in hand.

36. In another case of 2011 (184) ECR 90(Delhi) titled Uttam Sucrotech International (P) Limited vs. UOI & Anr., the coordinate Bench of this Court has observed as under:-

"..............the order No. 137/10-CX dated 8.1.2010 passed by the Joint Secretary of the Government of India, Ministry of Finance, whereby he has concurred with the order dated 8.6.2007 passed by the

Commissioner, Customs and Central Excise, the second respondent herein, who had dismissed the appeal preferred by the petitioner under Section 35 of the Central Excise Act, 1944 (for brevity "the Act") on the ground that the appeal was barred by limitation.

4. The aforesaid composite order passed on 22.8.2006 was received by the petitioner on 29.8.2006 against which the petitioner preferred an appeal on 28.11.2006. The second respondent by order dated 8.6.2007 came to hold that the appeal had been preferred on the 91st day, one day beyond the condonable period of limitation and, accordingly, rejected the application for condonation of delay which was filed along with the memorandum of appeal.

5. Grieved by the aforesaid order, the petitioner company preferred a revision before the first respondent who by the impugned order contained in Annexure "F" without adverting to the merits of the case gave the stamp of approval to the order passed by the first appellate authority on the basis that the appeal was barred by time as the delay was not condonable by the appellate authority.

6. In the writ petition, though numerous averments have been made contending, inter alia, that the petitioner is entitled to exemption and the demand made by the authorities is totally unsustainable, yet the gravamen of the stand that arises for consideration is whether the respondent No.2 was justified in rejecting the appeal on the ground that delay was non-condonable and the revisional authority was correct in treating the said order as impeccable.

11. First we shall refer to the decision render in Hongo India Pvt. Ltd. (supra) wherein the Apex Court was dealing with the question whether the High Court has power to condone the delay in presentation of the "reference application" under unamended

Section 35(H)(1) of the Act beyond the prescribed period by applying Section 5 of the Limitation Act. A three-Judge Bench referred to Section 35H of the Act, Sections 5 and 29(2) of the Limitation Act, 1963 and eventually held as follows:

" 32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.

33. Even otherwise, for filing an appeal of the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision.

34. Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted, what we have to determine is whether the provisions of this

section are expressly excluded in the case of reference to the High Court.

35. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 - 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.

36. The scheme of the Central Excise Act, 1944 supports the conclusion that the time-limit prescribed under Section 35-H(1) to make a reference to the High Court is absolute and extendable by a court under Section 5 of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act."

37. I have discussed both the different situations. In one situation negative cap is there, where delay cannot be condoned beyond the maximum limit prescribed. In other situation, no clear cut provision provided if, the aggrieved person is prevented by the circumstances beyond control. In the instant case under Section 11 (6) of Delhi School Education Act, 1963 the Tribunal enjoy some power as vested in a Court of Appeal by the Code of Civil Procedure, 1908 under Delhi School Education Act, 1963 no such negative cap is given.

38. In my opinion, the law is very clear; there is a principle of interpretation of statute that the plain or grammatical construction which leads to injustice or absurdity is to be avoided. Section 11 of the Delhi School Education Act, sub-clause 6 thereof undoubtedly confers on the tribunal appellate powers which it exercises as if it were a court of appeal upon Code of Civil Procedure, therefore, to my mind would have the power to condone delay in appeal before it by recourse to Section 5 of the Limitation Act. The judgments cited and relied upon by counsel for the petitioner do not foreclose the powers of a tribunal if powers of a court of appeal are bestowed upon it by statute itself.

39. Additionally, this issue has already been decided in the case of Geeta Bal Bharti Sr. Sec. School (supra)

that Delhi School Education Act, 1973 the powers are bestows upon the Tribunal to dispose of appeals under the Act as if it were appellate court within the meaning of the Code of Civil Procedure, therefore, would have the power to condone delay in filing provided the Tribunal was satisfied that sufficient cause had been shown as required under Section 5 of the Limitation Act, 1963. The said Tribunal is headed by a District Judge appointed by Lt.Governor, NCT of Delhi after no objection given by the Hon‟ble the Chief Justice of this Court. The presiding officer of the Tribunal is not an administrative body but a quasi-judicial armed with sub-section 6 of Section 11.

40. In view of the aforesaid premised reasons, I do not perceive any merit in the writ petition. Accordingly, writ petition is dismissed with cost assessed at `10,000/- against the petitioner and in favour of the respondent No.1.

41. The parties are directed to appear before the Tribunal on 5th July, 2011.

SURESH KAIT (JUDGE)

MAY 13, 2011 RS/mr